M/S NISHANT FINANCE PVT. LTD. vs. INCOME TAX SETTLEMENT COMMISSION

WP-12452-2015 (M/S NISHANT FINANCE PVT. LTD. Vs INCOME TAX SETTLEMENT COMMISSION) 23-09-2015 Shri Sumit Nema, learned counsel for the petitioner. Shri Sanjay Lal, learned counsel for the respondents. Heard learned counsel for the parties. The petitioner has filed this writ petition challenging the order dated 8.5.2015 passed by the Income Tax Settlement Commission, Mumbai, rejecting an application filed by the applicant in case No.MP/BHCC/099/2014-15/IT. Primarily, the grievance of the petitioner is that the Settlement Commission did not hear the application filed under Section 245(c) of the Income Tax Act in accordance to the requirement of the statute that is proper opportunity of making submission, argument and making deep enquiry was not entered into. It is said that the issue averred in the affidavit of the counsel himself appearing for the Commission on 8.5.2015, that the Commission disposed of the matter in the manner as is indicated in the letter submitted by the Chartered Accountant who appeared on behalf of the petitioner before the Commission in the application Annexure P-7 available at page 164. In the said application a detailed assertion is made with regard to the proceedings that took place on the said date, the facts of more than 5 to 6 cases of the applicant is heard and being taken, paucity of time and in the manner in which the application is rejected by highlighting these facts which is supported by affidavit of the Chartered Accountant and the representative himself filed as annexure P-8. It is said that the opportunity of hearing and proper enquiry in accordance with the requirement of law was not undertaken and by placing reliance on the judgment of Rajasthan High Court in the case of Commissioner of Income Tax vs. Harikishan Vijayvargiya and others, 2011 Vol.336 ITR 174 Rajasthan, it is emphasized by Shri Sumit Nema that the application has not been properly decided. Even though Shri Sanjay Lal, counsel for the respondents tried to refuse the aforesaid contention but on going through the assertion made in the petition as is indicated herein above, the manner in which the order is passed and after considering the law laid down and the observations made by the Rajasthan High Court in the case of Harikishan Vijayvargiya (supra) particularly, the observations and findings recorded in para 20 onwards, we find, that the requirement of law is that an application filed for settlement in accordance with the provision of Section 245 (c) has to be decided after giving proper opportunity of hearing to the assesse concerned, conducting an enquiry as envisaged therein and after showing application of mind in the decision taken. the manner in which the application has been filed and has been decided in the present case is evaluated in the backdrop as are available in the Annexure P-7, which is supported by the affidavit of the representative of the assesse himself, we find that proper opportunity has not been granted and in a hurried manner the application has been decided. This being not the requirement of law, we allow this petition and quash the impugned order and remand the matter back to the learned Settlement Commissioner for taking action in accordance with law. The application already filed which is pending be heard and decided in accordance to law after giving due opportunity of representation and submission to the petitioner. We may observe that we have not made any observation on the merits of the claim made by the petitioner. We have only remanded the matter for reconsideration after giving opportunity of hearing. It is exclusively for the Settlement Commission to go into the merits of the case and to settle the matter and decide it in accordance with law With the aforesaid the petition is allowed and disposed of. (RAJENDRA MENON) JUDGE (C V SIRPURKAR) JUDGE