Allowed

Komalkant Faikirchand Sharma v. Deputy Commissioner of Income Tax, Circle 1

Gujarat HC6 May 2019SCA/14883/2018

Case brief

AI extract

What is this about?

Petition under Article 226 challenging a notice under section 148 of the Income-tax Act, 1961 proposing to reopen assessment for assessment year 2011-12 after the Settlement Commission had already passed an order under section 245D(4). The court held the Assessing Officer had no jurisdiction to reopen the concluded assessment, and quashed the notice.

What did the court decide?

Impugned notice dated 31.03.2018 under section 148 of the Income-tax Act, 1961 quashed and set aside; liberty to the Revenue to move the Settlement Commission for a declaration that the order under se

Komalkant Faikirchand Sharma Vs Deputy Commissioner of Income… — Income Tax | Gujarat HC (2019)

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C/SCA/14883/2018 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 14883 of 2018

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MS.JUSTICE HARSHA DEVANI

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and

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HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

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KOMALKANT FAIKIRCHAND SHARMA

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Versus

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DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 1

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========================================================== Appearance:

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MR B S SOPARKAR(6851) for the Petitioner(s) No. 1 MRS MAUNA M BHATT(174) for the Respondent(s) No. 1

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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI and

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HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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Date : 06/05/2019

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ORAL JUDGMENT

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(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

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1.By this petition under article 226 of
the Constitution of India, the petitioner has
challenged the notice dated 31.03.2018 issued by
the respondent under section 148 of the Income-
tax Act, 1961 (hereinafter referred to as “the
Act”) proposing to reopen the assessment of the
petitioner for assessment year 2011-12.

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2.The petitioner is an individual engaged
in the business of real estate, transportation
and ship-breaking. The petitioner filed his
return of income for assessment year 2011-12 on
29.09.2011declaringtotalincomeof
Rs.20,49,590/-. The return of income was accepted
without any scrutiny. A search took place at the
premises of the petitioner on 17.02.2012.
Thereafter, the petitioner filed an application
under section 245C of the Act before the
Settlement Commission. The application of the
petitioner was admitted and the Settlement
Commission passed an order dated 12.01.2015 under
section 245D(4) of the Act.

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3.Thereafter, the respondent issued the
impugned notice under section 148 of the Act
seeking to reopen the assessment for assessment
year 2011-12. Upon receipt of the notice, the
petitioner requested the respondent to supply the
reasons for reopening, pursuant to which, such

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reasons came to be furnished on 28.05.2018. By a
letter dated 03.07.2018, the petitioner raised
various objections on merits and requested the
respondent to drop the reassessment proceedings.
By an order dated 20.07.2018, the respondent
disposed of the objections by rejecting the
objections raised by the petitioner. Being
aggrieved, the petitioner has filed the present
petition.

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4.Mr. B.S. Soparkar, learned advocate for
the petitioner, submitted that the reasons
recorded suffer from various infirmities. It was
submitted that reasonable belief, as contemplated
under section 147 of the Act, must be that of an
honest and reasonable person based upon a
reasonable ground and it should not be based on
some suspicious and vague reasons. Whereas, in
this case, the reasons are vague and do not
reveal any income having escaped assessment and
furthermore, the reasons recorded make it clear
that this is a case of borrowed satisfaction
without any independent application of mind. It
was also contended that in this case, the
reopening is beyond a period of four years from
the end of relevant assessment year and there is
not even a whisper in the reasons recorded

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regarding any failure on the part of the
petitioner to disclose fully and truly all

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material facts necessary for its assessment.

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4.1Elaborating upon the above submissions, it
was submitted that there is no escapement of
income inasmuch as the petitioner had disclosed
all material facts in the books of accounts and,
therefore, it is not permissible for the revenue
to reopen the assessment.

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4.2It was submitted that there is no independent
application of mind on the part of the Assessing
Officer while recording the reasons for reopening
and that merely placing reliance on the materials
provided by the investigation wing for recording
the reasons is impermissible. It was submitted
that the Assessing Officer must record an
independent finding as to how income has escaped
assessment on a proper application of mind.
However, in the present case, no inquiry has been
conducted by the Assessing Officer based on the
evidence collected in the earlier search.
Referring to the reasons recorded for reopening
the assessment, it was submitted that there is no
independent correlation established in respect of
any transaction between Shri Pradip Birewar and
the petitioner – assessee. It was submitted that
there is no link between the information received
and formation of opinion that income has escaped
assessment and that the reasons recorded do not

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indicate any relationship between the petitioner
and SCN or Shri Pradip Birewar and that the
reasons, as stated, do not reflect application of
mind nor do they say as to how income has escaped
assessment.

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4.3 It was submitted that in the affidavitin-reply filed by the respondent, the respondent seeks to supplement the reasons recorded by him, which is not permissible in law. In support of such submission the learned advocate placed reliance upon the decision of Bombay High Court in Hindustan Lever Limited v. R.B. Wadkar, Asst. Commissioner of Income-tax Circle, 2004 (268) ITR 332, for the proposition that reasons recorded by the Assessing Officer cannot be supplemented by filing an affidavit or by making oral submissions, otherwise, the reasons, which were lacking in material particulars, would get supplemented by the time the matter reaches to the Court on the strength of affidavit or oral submissions advanced.

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4.4 Reliance was also placed upon another decision of Bombay High Court in Prashant S. Joshi; Dattaram Shridhar Bhosale v. Income Tax Officer; Union of India, 2010 (324) ITR 154 , wherein the court held that the reasons which are recorded by the Assessing Officer for reopening

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an assessment are the only reasons which can be
considered when the formation of the belief is
impugned. The recording of reasons distinguishes
an objective from a subjective exercise of power.
The requirement of recording reasons is a check
against arbitrary exercise of power. For, it is
on the basis of the reasons recorded and on those
reasons alone that the validity of the order
reopening the assessment is to be decided. The
reasons recorded while reopening the assessment
cannot be allowed to grow with age and ingenuity,
by devising new grounds in replies and
affidavits, not envisaged when the reasons for
reopening an assessment were recorded. The
principle of law, therefore, is well settled that
the question as to whether there was reason to
believe, within the meaning of section 147 of the
Act, that income has escaped assessment, must be
determined with reference to the reasons recorded
by the Assessing Officer and that the reasons
which are recorded cannot be supplemented by
affidavits.

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4.5 Reliance was also placed upon the decision of this court in Gujarat Fluorochemicals Ltd. v. Deputy Commissioner of Income Tax, 2009 (319) ITR 282, wherein the court recorded that if the Assessing Officer has reason to believe that the assessee has not disclosed fully and truly

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all material facts, then it should have been
stated clearly in the reasons recorded, which has
not been done. Instead, the court found that the
order dated 28.08.2008 rejecting the objections
of the petitioner therein, sought to supplement
the reasons which had been recorded, so as to
fill in the lacunae, attempting to bring it
within the ambit and scope of the proviso to
section 147 of the Act. The court held that the
order dated 28.08.2008 traveled far beyond the
reasons recorded, as had been communicated, which
is not permissible and therefore, the Court
cannot look into the contents thereof, which seek
to supplement the reasons recorded. It is the
statutory duty of the Assessing Officer to record
reasons for issuing notice under section 148 of
the Act and the reasons recorded cannot further
be supplemented or explained by a subsequent
order so as to give an entirely different
complexion to the case.

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4.6 Reliance was placed upon the decision of Delhi High Court in Principal Commissioner of Income-tax-6 v. Meenakshi Overseas (P.) Ltd., [2017] 82 taxmann.com 300 (Delhi) , wherein the court held thus:

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“22. As rightly pointed out by the ITAT, the ‘reasons to believe' are not in fact reasons

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but only conclusions, one after the other. The expression ‘accommodation entry' is used to describe the information set out without explaining the basis for arriving at such a conclusion. The statement that the said entry was given to the assessee on his paying "unaccounted cash" is another conclusion the basis for which is not disclosed. Who is the accommodation entry giver is not mentioned. How he can be said to be "a known entry operator" is even more mysterious. Clearly the source for all these conclusions, one after the other, is the Investigation report of the DIT. Nothing from that report is set out to enable the reader to appreciate how the conclusions flow therefrom.

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23. Thus, the crucial link between the information made available to the AO and the formation of belief is absent. The reasons must be self evident, they must speak for themselves. The tangible material which forms the basis for the belief that income has escaped assessment must be evident from a reading of the reasons. The entire material need not be set out. However, something therein which is critical to the formation of the belief must be referred to. Otherwise the link goes missing.

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24. The reopening of assessment under Section 147 is a potent power not to be lightly exercised. It certainly cannot be invoked casually or mechanically. The heart of the provision is the formation of belief by the AO that income has escaped assessment. The reasons so recorded have to be based on some tangible material and that should be evident from reading the reasons. It cannot be supplied subsequently either during the proceedings when objections to the reopening are considered or even during

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the assessment proceedings that follow. This is the bare minimum mandatory requirement of the first part of Section 147 (1) of the Act.

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The first part of Section 147 (1) of the Act requires the AO to have “reasons to believe” that any income chargeable to tax has escaped assessment. It is thus formation of reason to believe that is subject matter of examination. The AO being a quasi judicial authority is expected to arrive at a subjective satisfaction independently on an objective criteria. While the report of the Investigation Wing might constitute the material on the basis of which he forms the reasons to believe the process of arriving at such satisfaction cannot be a mere repetition of the report of investigation. The recording of reasons to believe and not reasons to suspect is the pre-condition to the assumption of jurisdiction under Section 147 of the Act. The reasons to believe must demonstrate link between the tangible material and the formation of the belief or the reason to believe that income has escaped assessment.”

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4.7 Reliance was also placed upon the decision of Delhi High Court in Principal Commissioner of Income-tax v. RMG Polyvinyl (I) Ltd., [2017] 83 taxmann.com 348 (Delhi) , wherein the court placed reliance upon its earlier decision in the case of Principal Commissioner of Income-tax-6 v. Meenakshi Overseas (P.) Ltd. (supra).

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4.8 Referring to the reasons recorded, it
was submitted that the crucial link between the
information available to the Assessing Officer
and the formation of belief is absent in the
reasons recorded.

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4.9 Another contention raised by the learned
advocate for the petitioner, which goes to the
root of the matter, is that this is a case where
there is no original assessment under section
143(3) of the Act, but, the assessee has gone to
the Settlement Commission, which passed an order
under section 245D(4) of the Act. It was
submitted that in view of the provisions of
section 245I of the Act, the order of the
Settlement Commission is conclusive and there
cannot be two assessments of the assessee for the
same assessment year. It was submitted that
therefore, the reopening of assessment, in a case
where the Settlement Commission has passed an
order under section 245D(4) of the Act, is
without authority of law.

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4.10 In support of such submission, the learned advocate placed reliance upon the decision of the Bombay High Court in Mandhana Industries Ltd. v. Principal Commissioner of Income-tax Central-1, [2019] 103 taxmann.com 301

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(Bom) , wherein the court has held that the Act does not envisage a return of an assessee to be split into two parts; one for consideration before the Settlement Commission by way of settlement and another for normal assessment at the hands of the Assessing Officer or the appellate or the revisional authority. In other words, if an application for settlement is allowed and the case is settled, the entire assessment for the assessment years in question would stand settled.

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4.11 Reliance was also placed upon the decision of the Delhi High Court in Omaxe Ltd. v. Assistant Commissioner of Income Tax, [2012] 25 taxmann.com 190 (Delhi) , wherein the court held that a harmonious reading of the provisions of the statute would show that it does not postulate the existence of two orders, each of a different income-tax authority, determining the total income of an assessee for the same assessment year. The court held that if the contention of the Revenue is accepted, not only will the finality of the order of settlement be disturbed, but it will also result in different orders relating to the same assessment year and relating to the same assessee being allowed to stand. The court expressed grave doubt whether such a

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result, which is likely to create chaos and
confusion in the tax administration, could have
been intended. The court held that the order of
the Settlement Commission can be reopened only in
cases of fraud and misrepresentation and in no
other case. It further held that if the order of
settlement is an assessment order and under
section 245I of the Act, there is a finality
attached to it, it is difficult to conceive of a
situation where the Assessing Officer would be
empowered to reopen the assessment of the income
made by the Settlement Commission on any ground.
The only ground by which the finality of the
order of the Settlement Commission can be
disturbed is where it is subsequently found by
the Settlement Commission itself that its order
has been obtained by fraud or misrepresentation
of facts.

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4.12It was submitted that the reopening of
assessment is, therefore, without jurisdiction
and hence, the impugned notice under section 148
of the Act deserves to be quashed and set aside.

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5.Vehemently opposing the petition, Mrs.
Mauna Bhatt, learned senior standing counsel for
the respondent, invited the attention of the
court to the reasons recorded for reopening the
assessment to submit that the same are clear and

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reflect proper application of mind on the part of
the Assessing Officer.

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5.1 It was submitted that the petitioner is a beneficiary of accommodation entries through Shri Shirish Chandrakant Shah and Shri Pradip Birewar and that this is not a case where the Assessing Officer’s action is without jurisdiction. The learned senior standing counsel placed reliance upon the decision of this court in Vicky Rajesh Jhaveri v. Deputy Commissioner of Income Tax & 1, 2017 (396) ITR 265 , to submit that in a similar set of facts, the court had dismissed the petition challenging the notice under section 148 of the Act.

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5.2Dealing with the contention raised on
behalf of the petitioner that the reopening of
assessment is bad on the ground that earlier the
matter had travelled to the Settlement Commission
and the Settlement Commission had passed an order
under section 245D(4) of the Act and hence, the
Assessing Officer has no jurisdiction to reopen
the assessment, the learned senior standing
counsel drew the attention of the court to the
provisions of section 245I of the Act to submit
that the same provides that the order of the
Settlement Commission passed under sub-section
(4) of section 245D of the Act shall be

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conclusive as to the matters stated therein and
no matter covered by such order shall be reopened
in any proceeding under the Act. It was submitted
that therefore, what is conclusive is the matter
stated in the order of the Settlement Commission,
whereas the income, which is stated to have
escaped assessment in the present case, was not a
matter before the Settlement Commission, and
hence, the order of the Settlement Commission
would not be conclusive in respect of matters in
relation to which the assessment is sought to be
reopened by the Assessing Officer, as there was
no consideration of the said issue by the
Settlement Commission. Therefore, the reopening
of assessment is valid and legal.

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5.3It was further submitted that sub-
section (5) of section 245D of the Act provides
that subject to the provisions of section 245BA
of the Act, the materials brought on record
before the Settlement Commission shall be
considered by the Members of the concerned Bench
before passing any order under sub-section (4) of
section 245D of the Act and in relation to
passing of such order, the provisions of section
245BD shall apply. It was submitted that the
material, on the basis of which the Assessing
Officer seeks to reopen the assessment, was not
brought on record before the Settlement

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Commission and therefore, the Settlement
Commission had no opportunity to consider the
same before passing the order under section
245D(4) of the Act.

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5.4 Reliance was placed upon the decision of Supreme Court in Brij Lal & Ors. v. Commissioner of Income Tax, Jalandhar, 2010 (328) ITR 477, reference to which shall be made at a later stage.

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5.5 Reliance was also placed upon the decision of the Delhi High Court in Gupta Perfumers (P) Ltd. v. Income Tax Settlement Commission & Ors., 2012 (348) ITR 86 , wherein the court held that section 245I of the Act states that the order of the Settlement Commission under section 245D(4) shall be conclusive as to the matters stated therein and save as otherwise provided no matter in the said order shall be reopened in any proceedings. The use of the words “save as otherwise provided” in that Chapter refers to the reopening of matters, which are conclusively decided. The conclusiveness attached to the orders of the Settlement Commission relates to the matters stated in the orders of the Settlement Commission.

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5.6Reliance was also placed upon the

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decision of Bombay High Court in Rajiv Yashwant Bhale v. The Principal Commissioner of Income Tax, (2018) 401 ITR 408 , wherein the court has held that the conclusivity of the order passed by the Settlement Commission is to the matters stated in such order passed under section 245D(4) of the Act, whereas, in this case, the matters in respect of which the assessment is sought to be reopened, have not been decided by the Settlement Commission and hence, there is no bar against reopening the assessment under section 147 of the Act.

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6.In the backdrop of the facts and
contentions noted herein above, it is evident
that in this case, the validity of the reopening
of assessment by the Assessing Officer under
section 147 of the Act has been called in
question, principally, on two grounds. Firstly,
that in this case, after the search was conducted
and proceedings were initiated against the
petitioner, the petitioner had approached the
Settlement Commission, which had passed an order
under section 245D(4) of the Act, which has
become final and conclusive and, therefore, the
Assessing Officer has no jurisdiction to reopen
the assessment. Secondly, on merits, on the
reasons recorded, the Assessing Officer could not
have formed the belief that income chargeable to

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tax has escaped assessment.

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7. Insofar as the first question is
concerned, it may be germane to refer to the
decisions relied upon by the learned counsel for
the respective parties. InOmaxe Ltd. v.
Assistant Commissioner of Income-tax (supra), the
Delhi High Court was considering a case where the
assessment was sought to be reopened by issuing a
notice under section 148 of the Act. The court
held that a harmonious reading of the provisions
of the statute would show that it does not
postulate the existence of two orders, each of a
different income-tax authority, determining the
total income of an assessee for the same
assessment year. It was held that if the
contention of the Revenue is accepted, not only
will the finality of the order of settlement be
disturbed, but it will also result in different
orders relating to the same assessment year and
relating to the same assessee being allowed to
stand. The court observed that the order of the
Settlement Commission can be reopened only in
cases of fraud and misrepresentation and in no
other case. It further held that if the order of
settlement is an assessment order and under
section 245I of the Act, there is a finality
attached to it, it is difficult to conceive of a
situation where the Assessing Officer would be

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empowered to reopen the assessment of the income made by the Settlement Commission on any ground. The only ground by which the finality of the order of the Settlement Commission can be disturbed is where it is subsequently found by the Settlement Commission itself that its order has been obtained by fraud or misrepresentation of facts. The court placed reliance upon the decision of Allahabad High Court in the case of CIT v. Smt. Diksha Singh, [2011] 201 Taxman 378 , wherein it was held that since the legislature in its wisdom had conferred powers on the Settlement Commission to reopen the proceedings in certain circumstances and to deal with the situation in

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the event of commission of fraud or
misrepresentation and has left it to the
Settlement Commission to deal with such
contingencies, it cannot be postulated that the
Assessing Officer or any other income tax
authority will have jurisdiction to assess the
tax for the same financial year despite the
finality and conclusiveness of the order of
settlement. It was further held that there cannot
be piecemeal determination of the income of an
assessee for the relevant period, one by the
Settlement Commission and another by the
assessing authority, and to hold otherwise would
be to frustrate the very purpose of filing an
application before the Settlement Commission for

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settlement. The court further observed that the
question therein was what would be the position
when an order under section 245D(4) is passed by
the Settlement Commission and whether such an
order can be construed as one dealing with the
entire gamut of the return filed by the assessee
and the issues raised therein, and held that
since the exclusive jurisdiction to exercise the
powers and perform the functions of an income tax
authority in relation to the case vests with the
Settlement Commission, after an order is passed
under section 245D(1) till the final settlement
order is passed under section 245D(4) of the Act,
it is not possible to countenance a situation
where it can be said that the assessee’s claim
for deduction was not the subject matter of the
order passed by the Settlement Commission under
section 245D(4) of the Act.

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7.1 In Mandhana Industries Ltd. v. Principal
Commissioner of Income-tax Central-1(supra), the
Bombay High Court held that the provisions of
section 245D read with section 245H, 245I and
245F of the Act make it abundantly clear that a
case could either be dealt with by the concerned
income tax authority or the Settlement
Commission, but not both. The court held that the
Act envisages only one order concerning a case of
the assessee, it may either be an order of

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settlement passed by the Settlement Commission or
an order of assessment passed by the Assessing
Officer, but not both. The court further referred
to the relevant provisions contained in Chapter
XIX-A of the Act and came to the conclusion that
once an application for settlement of a case is
filed before the Settlement Commission and is
allowed to pass through various stages under
section 245D of the Act, it is only the
Settlement Commission which can pass any order
concerning such a case. At all stages, the Act
refers to a case for which an application for
settlement can be filed, a case which the
Settlement Commission considers for settlement, a
case the Commission either allows to be settled
or does not allow to be so settled. The court
further held that the Act does not envisage a
return of an assessee to be split into two parts,
one for consideration before the Settlement
Commission by way of settlement and another for
normal assessment at the hands of the Assessing
Officer or the appellate or the revisional
authority. In other words, if an application for
settlement is allowed and the case is settled,
the entire assessment for the assessment years in
question would stand settled.

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7.2 In Rajiv Yashwant Bhale v. The Principal
Commssioner of Income Tax (supra), on which

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reliance has been placed by the learned senior standing counsel for the respondent, the contention was that non-compliance of the order of the Settlement Commission does not make the order itself, not a final or conclusive one. A continuing default per se is different from the finality and conclusiveness of the order itself and cannot affect the conclusiveness of an order of a judicial authority. The question in that case was whether the order passed by the Settlement Commission was a conditional order and that if the conditions remained satisfied, whether the order can be said to be final or conclusive? This decision, therefore, would have no applicability to the facts of the present case.

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7.3 In Brij Lal v. Commissioner of Income
Tax, Jalandhar (supra), the Supreme Court held
thus:

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“18. Coming to Chapter XIX-A which deals with
settlement of cases, it may be stated that
the word “case” is defined under Section 245-
A(b). It is an exhaustive definition. The
definition makes it clear that an application
for settlement shall lie only when any
proceedings for assessment or reassessment
are pending or an appeal or revision in
connectionwithsuchassessmentor
reassessment is pending before the Income Tax
Authority. Under Section 245-C(1), such

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application for settlement will not be
maintainable without full and true disclosure
of the income by the applicant, the manner in
which such undisclosed income was derived and
that the applicant had furnished his return
of income and that the additional tax payable
on such income exceeds the specified amount.”

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“23. Descriptively, it can be stated that
assessment in law is different from
assessment by way of settlement. If one reads
Section 245-D(6) with Section 245-I, it
becomes clear that every order of settlement
passed under Section 245-D(4) shall be final
and conclusive as to the matters contained
therein and that the same shall not be
reopened except in the case of fraud and
misrepresentation. Under Section 245-F(1), in
addition to the powers conferred on the
Settlement Commission under Chapter XIX-A, it
shall also have all the powers which are
vested in the Income Tax Authority under the
Act. In this connection, however, we need to
keep in mind the difference between
“procedure for assessment” under Chapter XIV
and “procedure for settlement” under Chapter
XIX-A (see Section 245-D). Under Section 245-
F(4), it is clarified that nothing in Chapter
XIX-A shall affect the operation of any other
provision of the Act requiring the applicant
to pay tax on the basis of self-assessment in
relation to matters before the Settlement
Commission.”

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“25. Our detailed analysis shows that though
Chapter XIX-A is a self-contained code, the
procedure to be followed by the Settlement
Commission under Sections 245-C and 245-D in
the matter of computation of undisclosed
income; in the matter of computation of
additional income tax payable on such income
with interest thereon; the filing of

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settlement application indicating the amount
of income returned in the return of income
and the additional income tax payable on the
undisclosed income to be aggregated as total
income shows that Chapter XIX-A indicates
aggregation of incomes so as to constitute
total income which indicates that the special
procedure under Chapter XIX-A has an in-built
mechanism of computing total income which is
nothing but assessment (computation of total
income).”

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“26. To elaborate, under Section 245-C(1-B),
if the applicant has furnished a return in
respect of his total income, tax shall be
calculated on the aggregate of total income
returned and the income disclosed in the
settlement application as if such aggregate
were total income. Under the Act, tax is
payable on the total income as computed in
accordance with the provisions of the Act.
Thus, Section 143(3) provision is sought to
be incorporated in Section 245-C. When
Parliament uses the words “as if such
aggregate would constitute total income”, it
presupposes that under the special procedure
the aggregation of the returned income plus
income disclosed would result in computation
of total income which is the basis for the
levy of tax on the undisclosed income which
is nothing but “assessment”. Similarly,
Section 245-C(1-C) provides for deductions
from the total income computed in terms of
Section 245-C(1-B).”

¶127

“30. Now, Section 245-C(1) is voluntary
disclosure by the assessee of his undisclosed
income. Under Section 245-C(1), the assessee
has to mention in his settlement application
the additional amount of tax payable by him
on such undisclosed income. Under proviso
(a), the application for settlement shall not

¶128

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¶130

be entertained till the assessee has
furnished the return of income which he was
required to file under the Act to the extent
of his income. Under proviso (b), the
assessee has to declare the additional amount
of tax payable. Thus, the two provisos to
Section 245-C(1) show that Chapter XIX-A,
which prescribes a special procedure for
assessment by settlement, contemplates a pre-
assessment collection of tax.”

¶131

“31. With the filing of the settlement
application and after such application is
allowed to be proceeded with under Section
245-D(1), intimation under Section 143(1),
regular assessment under Sections 143(3)/144
and reassessment under Section 147 lose their
existence as under Sections 245-C(1-A) and
(1-B) it is only the income disclosed in the
return of income before the AO alone which
survives for consideration by the Settlement
Commission for settling the amount of income
which is not disclosed in the return.”

¶132

“37. As held hereinabove, under Section 245-
C(1) read with Section 245-C(1-B)(ii) and
Section 245-C(1-C)(b), the additional amount
of income tax payable is to be calculated on
the aggregate of total income returned and
the income disclosed in the settlement
application as if such aggregate is the total
income. Thus, the scheme of the said sections
is based on computation of total income and
in that sense we have stated that such
application for settlement is akin to a
return of income. The said provision deals
with “total income”. Thus, as stated above,
Sections 234-A, B and C are applicable up to
the stage of Section 245-D(1) order passed by
theSettlementCommission.However,
Parliament has not extended the provisions
and the liability to pay interest beyond the

¶133

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¶134

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¶135

date of application for settlement. This is
the position even after the Finance Act of
2007.”

¶136

“39. Moreover, as stated above, under the
Act, there is a difference between assessment
in law [regular assessment or assessment
under Section 143(1)] and assessment by
settlement under Chapter XIX-A. The order
under Section 245-D(4) is not an order of
regular assessment. It is neither an order
under Section 143(1) or Section 143(3) or
Section 144. Under Sections 139 to 158, the
process of assessment involves the filing of
the return under Section 139 or under Section
142; inquiry by the AO under Sections 142 and
143 and making of the order of assessment by
the AO under Section 143(3) or under Section
144 and issuing of notice of demand under
Section 156 on the basis of the assessment
order. The making of the order of assessment
is an integral part of the process of
assessment. No such steps are required to be
followed in the case of proceedings under
Chapter XIX-A. The said chapter contemplates
the taxability determined with respect to
undisclosed income only by the process of
settlement/arbitration. Thus, the nature of
the orders under Sections 143(1), 143(3) and
144 is different from the orders of the
Settlement Commission under Section 245-D(4).

¶137

40. Even in CIT v. Anjum M.H. Ghaswala6 there
is no finding by this Court that the order of
the Settlement Commission under Section 245-
D(4) is an order of assessment under Section
143(3) or under Section 144. In Ghaswala
case6 the only question decided by this Court
is that the interest under Section 234-B is
mandatory in nature and that the Settlement
Commission, therefore, had no authority to
waive it.”

¶138

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¶139

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¶140

“41. xxxxxx Once the case stands admitted,
the Settlement Commission shall have
exclusive jurisdiction to exercise the powers
of the Income Tax Authority.”

¶141

“42. The order of the Settlement Commission
under Section 245-D(4) shall be final and
conclusive under Section 245-I subject to two
qualifications under which it can be recalled
viz. fraud and misrepresentation but even
here it is important to note that under
Section 245-D(7) where the settlement becomes
voidonaccountoffraudand
misrepresentation the proceedings with
respect to the matters covered by the
settlement shall be deemed to have been
revived from the stage at which the
application was allowed to be proceeded with
by the Settlement Commission.”

¶142

7.4Thus, in Brij Lal v. Commissioner of
Income Tax, Jalandhar(supra), the Supreme Court
has held that under the Act, there is a
difference between assessment in law [regular
assessment or assessment under section 143(1)]
and assessment by settlement under Chapter XIX-A.
The order under section 245D(4) of the Act is not
an order of regular assessment. It is neither an
order under section 143(1) or section 143(3) or
section 144 of the Act. Under sections 139 to
158, the process of assessment involves the
filing of return under sections 139 or 142 of the
Act; inquiry by the Assessing Officer under
sections 142 and 143 and making of the order of

¶143

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¶144

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¶145

assessment by the Assessing Officer under
sections 143(3) or 144 and issuing of notice of
demand under section 156 on the basis of the
assessment order. The making of the order of
assessment is an integral part of the process of
assessment. No such steps are required to be
followed in the case of proceedings under Chapter
XIX-A. The said Chapter contemplates the
taxability determined with respect to undisclosed
incomeonlybytheprocessof
settlement/arbitration. Thus, the nature of the
orders under sections 143(1), 143(3) and 144 is
different from the orders of the Settlement
Commission under section 245D(4) of the Act.

¶146

7.5Moreover, the Supreme Court, in the
above decision has held that the scheme of the
said section is based on computation of total
income and in that sense it has stated that such
application for settlement is akin to a return of
income. The said provision deals with ‘total
income’. Therefore, when section 245C deals with
total income, all matters falling within the
ambit of total income would stand concluded once
the Settlement Commission settles a case and
passes an order under section 245D(4) of the Act.
The order of the Settlement Commission would be
finalandconclusivesubjecttotwo
qualifications, viz. fraud or misrepresentation.

¶147

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¶148

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¶149

Moreover, when the settlement becomes void under
section 245D(7) of the Act, the matters covered
by the settlement shall be deemed to have been
revived from the stage at which the application
was allowed to be proceeded with by the
Settlement Commission.

¶150

7.6Section 245-I of the Act, which bears
the heading “Order of settlement to be
conclusive”, postulates that every order of
settlement passed under sub-section (4) of
section 245D shall be conclusive as to the
matters stated therein and no matter covered by
such order shall, save as otherwise provided in
that Chapter, be reopened in any proceeding under
the Act or under any other law for the time being
in force.

¶151

7.7An application under section 245C of the
Act is akin to a return of income, wherein the
assessee is required to make a full and true
disclosure of his income and the order under
section 245D(4) of the Act is in the nature of an
assessment order. Therefore, assessment of the
total income of the assessee for the assessment
year in relation to which the Settlement
Commission has passed the order under section
245D(4) of the Act stands concluded and in terms
of section 245I of the Act, such order shall be

¶152

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¶153

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¶154

conclusive as to the matters stated therein and
no matter covered by such order shall, save as
otherwise provided in Chapter XIX-A, be reopened
in any proceeding under the Act or under any
other law for the time being in force. Therefore,
once an order is passed by the Settlement
Commission under section 245D(4) of the Act, the
same is conclusive insofar as the assessment year
involved is concerned. When the section refers to
matters not covered by such order, it refers to
matters other than that covered under the
assessment, viz. other than determination of the
total income of the assessee for that assessment
year. There may be matters in respect of the very
assessment year which do not touch the
determination of the total income of the
assessee, like non-payment of advance tax or the
like, which have no direct connection with the
determination of the total income for that
assessment year, which would not stand concluded
by the order of the Settlement Commission.
However, when section 245C of the Act requires
the assessee to make a full and true disclosure
of his income for the period in respect of which
he has made such application, the order under
section 245D(4) of the Act would relate to the
determination of the total income of the assessee

¶155

for that assessment year and such order is
conclusive and cannot be reopened except as

¶156

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¶157

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¶158

provided in that Chapter.

¶159

7.8As to how the proceeding can be reopened
is provided under section 245D(6) of the Act,
which says that every order passed under section
245D(4) of the Act shall provide for the terms of
settlement, including any demand by way of tax,
penalty or interest, the manner in which any sum
due under the settlement shall be paid and all
other matters to make the settlement effective
and shall also provide that the settlement shall
be void if it is subsequently found by the
Settlement Commission that it has been obtained
by fraud or misrepresentation of facts.
Therefore, the only ground on which an order of
settlement made under section 245D of the Act can
be reopened is that if it is subsequently found
by the Settlement Commission that the order under
section 245D(4) of the Act had been obtained by
fraud or misrepresentation of facts. Therefore,
once an order has been passed under section 245D
of the Act by the Settlement Commission, the
assessment for the year stands concluded and the
Assessing Officer thereafter has no jurisdiction
to reopen the assessment.

¶160

7.9This court is in agreement with the view
of the Bombay High Court in Mandhana Industries
Ltd. v. Principal Commissioner of Income Tax

¶161

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¶162

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¶163

(supra) and the Delhi High Court in case of Omaxe
Ltd. v. Deputy Commissioner of Income Tax(supra)
wherein, the court held that the provisions of
Chapter XIX-A of the Act make it abundantly clear
that a case could either be dealt with by the
concerned income tax authority or the Settlement
Commission and not by both. The Act does not
envisage a return of an assessee to be split into
two parts, one for consideration before the
Settlement Commission by way of settlement and
another for normal assessment at the hands of the
Assessing Officer or the appellate or revisional
authority. In other words, if an application for
settlement is allowed and the case is settled,
the entire assessment for the assessment year in
question would stand settled. The court held that
the Act does not envisage parallel proceedings
for the same assessment year concerning the same
assessee.

¶164

7.10 The upshot of the above discussion is
that once an order has been made by the
Settlement Commission under section 245D(4) of
the Act, the same is conclusive and final in
respect of the assessment for the assessment year
in relation to which such order was passed and
the Assessing Officer has no jurisdiction under
section 147 of the Act to reopen an assessment
made under section 245D(4) of the Act. That,

¶165

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¶166

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¶167

however, does not mean that the Revenue is
without remedy if at a subsequent stage it is
noticed that the assessee had suppressed its
actual income before the Settlement Commission.
In view of the provisions of sub-section (6) of
section 245D of the Act, an order made by the
Settlement Commission under section 245D(4) of
the Act shall provide for the terms of
settlement, which should inter alia provide that
the settlement shall be void if it is
subsequently found by the Settlement Commission
that it has been obtained by fraud or
misrepresentation. Section 245D(7) of the Act
provides that where the settlement becomes void,
as provided in sub-section (6) of section 245D,
the proceedings in respect of the matters covered
by the settlement shall be deemed to have been
revived from the stage at which the application
was allowed to be proceeded with by the
Settlement Commission. The remedy, therefore, is
not under section 147 of the Act, but under
section 245D(6) read with section 245D(7) of the
Act.

¶168

7.11In the facts of the present case, since
the Settlement Commission has passed an order
under section 245D(4) of the Act in respect of
the assessment year in relation to which the
assessment is sought to be reopened, the

¶169

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¶170

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¶171

Assessing Officer has no jurisdiction to invoke
the provisions of section 147 of the Act and
reopen an assessment, which has become
conclusive. Such concluded assessment can only be
reopened in case of fraud or misrepresentation of
facts, as contemplated under sub-section (6) of
section 245D of the Act. The assumption of
jurisdiction on the part of the Assessing Officer
under section 147 of the Act by issuing the
impugned notice under section 148 of the Act is,
therefore, invalid and without authority of law.

¶172

8.Coming to the second question, namely,
whether on the reasons recorded, the Assessing
Officer could have formed the belief that income
chargeable to tax has escaped assessment, it
would be necessary to briefly refer to the
reasons recorded by the Assessing Officer. A
perusal of the reasons recorded reveals that the
Assessing Officer has recorded that a search had
been carried out at the office premises of SCS on
09.04.2013 wherein MS Excel Sheet “pradeep abad”
in the excel file “ac.1.xis” was found and seized
from the computer (Rajen computer) in that office
in form of computer backup. As per: (i) the
evidence found during the course of search in the
case of Shirish Chandrakant Shah, and (ii) the
appraisal report, it is seen that Shri Pradip
Birewar had facilitated entries for Ahmedabad

¶173

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¶174

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¶175

based beneficiaries. Along with search in the
Barter Group, Shri Pradip Birewar and some of the
main beneficiaries, who had availed accommodation
entries through him, were also searched/surveyed.
As per the evidences seized in the search of SCS,
Shri Pradip Birewar had made cash payment of
Rs.70 crores to SCS. These cash payments were
made to arrange bogus LTCG/loss entries in the
scrip of Shri Ganesh Spinners Ltd. and Praneta
Industries Ltd. In the appraisal report, the DDIT
has discussed in detail the modus operandi of SCS
for arranging bogus LTCG.

¶176

8.1In the reasons recorded, the Assessing
Officer has then referred to the contents of
appraisal report wherein, it has been stated that
bogus LTCG entries were made to the beneficiaries
to whom shares were allotted through private
placement of convertible shares recorded as ‘PHY’
in the ‘pradeep abad’ sheet. ‘PHY’ refers to the
transactions where shares of SGSL (Ganesh) have
been acquired by the beneficiary clients in
physical certificate form. Thus, in this case,
shares are not purchased through exchange. A
perusal of the entries recorded shows that the
assessee has received payout of Rs.68,33,460/-
for 3,62,000 shares in assessment year 2011-12,
which is not genuine sale consideration, but mere
accommodation entries.

¶177

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¶179

8.2Thus, from the reasons recorded, it
emerges that the material, which formed the basis
for the formation of belief that income
chargeable to tax has escaped assessment is the
evidence found during the course of search in the
case of SCS and the appraisal report. The search
had been conducted in the case of Barter Group
and Shri Pradip Birewar. Search had also been
conducted in case of the main beneficiaries of
accommodation entries, one being SCS [Shirish
Chandrakant Shah]. The material on record shows
that Shri Pradip Birewar had paid Rs.70 crores in
cash to SCS. Such cash payment was made to
arrange LTCG/Loss entries in the scrip of (i)
Shri Ganesh Spinners Ltd. and (ii) Praneta
Industries Ltd. The modus operandi is discussed
in detail in the appraisal report. The material
on record shows that bogus LTCG entries were made
to the beneficiaries to whom shares were allotted
through private placement of convertible shares
recorded as ‘PHY’ in the ‘pradeep abad sheet’.
‘PHY’ refers to the transactions where shares of
SGSL (Shri Ganesh Spinners Ltd.) have been
acquired by the beneficiary clients in physical
certificate form. That in this case, the shares
are not purchased through exchange. A perusal of
the entries recorded shows that the assessee has
received payout of Rs.68,33,460/- for 3,62,000

¶180

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¶181

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¶182

shares in assessment year 2011-12. On the basis
of the evidence found during the course of search
and the appraisal report, the Assessing Officer
has formed the belief that the amount of
Rs.68,33,460/- received by the petitioner towards
consideration for sale of 3,62,000 shares in
assessment year 2011-12 is not genuine sale
consideration, but accommodation entries. So, the
case is that the petitioner did not receive any
share sale consideration, but it was in the
nature of mere accommodation entries. To put it
briefly, the Assessing Officer, in the reasons
recorded, has referred to the evidence on record
and the appraisal report and has recorded that
the same show that the LTCG shown by the
petitioner was in the nature of accommodation
entries and that in fact, there was no genuine
sale consideration.

¶183

8.3 In this case, the Assessing Officer has
filed a detailed affidavit and has also placed on
record the appraisal report on the basis of which
he has formed the opinion that income chargeable
to tax has escaped assessment in the case of the
assessee. It has been emphatically argued on
behalf of the petitioner that the reasons have to
be considered on a standalone basis and that the
Assessing Officer has to make out a case on the
basis of reasons recorded and not on the basis of

¶184

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¶185

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¶186

the affidavit. In this regard, reference may be made to the decision of this court in case of Aayojan Developers v. Income Tax Officer, 335 ITR 234 (Gujarat) , wherein, the court has referred to the decision of the Calcutta High Court in case of East Coast Commercial Company Ltd. v. Income Tax Officer and Ors., (1981) 128 ITR 326 (Calcutta), wherein it was held that the Income Tax Officer, in his affidavit filed in the court, could explain or elaborate or clarify the reasons recorded by him, but he could not thereby introduce new grounds or new reasons or new materials, which were not to be found in the recorded reasons, either expressly or by implication.

¶187

8.4Thus, it is open for the Assessing
Officer to explain or elaborate or clarify the
reasons recorded by him, but he cannot introduce
new grounds or new reasons or new materials,
which were not found in the recorded reasons,
either expressly or by implication. Moreover, the
reasons recorded do not have to be very
elaborate, but should reflect application of mind
on the part of the Assessing Officer to the
evidence available and should show that on the
reasons recorded, he could have formed the belief
that income chargeable to tax has escaped
assessment.

¶188

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¶190

8.5Therefore, while the reasons recorded
should reflect the basis for forming the opinion
that income chargeable to tax has escaped
assessment on the material relied upon, such
reasons can be elaborated in the affidavit-in-
reply. In the present case, along with the
affidavit-in-reply, the respondent has placed on
record the appraisal report, which finds
reference in the reasons recorded. The appraisal
report is detailed and elaborate and gives a
clear picture of the modus operandi by which
accommodation entries were provided to convert
unaccounted money into white money, however, the
reasons recorded are not so elaborate and rightly
so, inasmuch as the reasons have to satisfy that
there was sufficient material for the Assessing
Officer to form the belief that income chargeable
to tax has escaped assessment. Evidently, the
reasons would not set out the entire modus
operandi as recorded in the appraisal report, but
would briefly set out the gist of the facts and
material which led the Assessing Officer to form
the requisite belief that income chargeable to
tax has escaped assessment. However, the reasons
as they stand should be sufficient to show that
on the reasons recorded the Assessing Officer
could have formed the belief that income
chargeable to tax has escaped assessment. Once

¶191

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¶192

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¶193

that requirement is fulfilled, the Assessing
Officer can certainly clarify and explain the
reasons recorded by him in the affidavit-in-reply
and place the material relied upon by him for the
purpose of forming the belief that income
chargeable to tax has escaped assessment.

¶194

8.6The decisions on which reliance has been
placed upon by the learned advocate for the
petitioner would not be applicable to the facts
of the present case, inasmuch as in those cases,
the court found that on the reasons recorded the
Assessing Officer could not have formed the
requisite belief that income chargeable to tax
has escaped assessment, and held that such
reasons could not be supplemented by the order
disposing of the objections and in the affidavit-
in-reply.

¶195

8.7A perusal of the appraisal report, on
which reliance has been placed by the Assessing
Officer, reveals that there was sufficient
material for the Assessing Officer to form the
belief that income chargeable to tax has escaped
assessment. The material also refers to the
petitioner so as to establish a link between the
relied upon materials and the petitioner.
Considering the nature of material available with
the Revenue, it is not possible to state that on

¶196

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¶198

the reasons recorded, the Assessing Officer could
not have formed the belief that income chargeable
to tax has escaped assessment.

¶199

9.Thus, though on the reasons recorded for
reopening the assessment, the Assessing Officer
could have formed the belief that income
chargeable to tax has escaped assessment, in this
case, as discussed earlier, since there is an
order of the Settlement Commission under section
245D(4) of the Act in relation to the assessment
year in respect of which the assessment is sought
to be reopened, the Assessing Officer has no
jurisdiction to reopen the assessment. The
impugned notice under section 148 of the Act,
therefore, cannot be sustained.

¶200

10.For the foregoing reasons, the petition
succeeds and is, accordingly, allowed. The
impugned notice dated 31.03.2018 issued by the
respondent under section 148 of the Act is hereby
quashed and set aside. It is, however, open for
the respondent/Revenue to move the Settlement
Commission for appropriate relief of declaration
that the previous order under section 245D(4) of
the Act is void, setting out the relevant facts
and circumstances. In the event the Revenue
approaches the Settlement Commission with an
application for such relief, it shall be decided

¶201

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¶202

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¶203

on its own merits in accordance with law. Rule is
made absolute to the aforesaid extent with no
order as to costs.

¶204

(HARSHA DEVANI, J)

¶205

(BHARGAV D. KARIA, J)

¶206

PRAVIN KARUNAN

¶207

Page 41 of 41

Komalkant Faikirchand Sharma v. Deputy Commissioner of Income Tax, Circle 1

Case brief

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Komalkant Faikirchand Sharma v. Deputy Commissioner of Income Tax, Circle 1

Case brief

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