Allowed

M/S Akshar Enterprise v. the Principal Commissioner of Income Tax (Central)

Gujarat HC7 May 2019SCA/8131/2019

Case brief

AI extract

What is this about?

Writ petitions challenging the Settlement Commission's order denying extension of the 18-month time limit. The court allowed the petitions, holding that the period spent in earlier litigation and the stay period must be excluded when computing the time limit for passing the order.

What did the court decide?

The petitions were allowed, and it was held that the period from 2.2.2018 to four weeks after 4.2.2019 shall stand excluded while computing the eighteen months period for passing the order under Secti

M/S Akshar Enterprise Vs the Principal Commissioner of Income Tax… — Income Tax | Gujarat HC (2019)

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C/SCA/8122/2019 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 8122 of 2019

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With

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R/SPECIAL CIVIL APPLICATION NO. 8125 of 2019 With

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R/SPECIAL CIVIL APPLICATION NO. 8128 of 2019 With

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R/SPECIAL CIVIL APPLICATION NO. 8130 of 2019 With

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R/SPECIAL CIVIL APPLICATION NO. 8131 of 2019

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With

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R/SPECIAL CIVIL APPLICATION NO. 8132 of 2019

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With

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R/SPECIAL CIVIL APPLICATION NO. 8133 of 2019

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With

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R/SPECIAL CIVIL APPLICATION NO. 8134 of 2019

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With

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R/SPECIAL CIVIL APPLICATION NO. 8136 of 2019

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With

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R/SPECIAL CIVIL APPLICATION NO. 8138 of 2019

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M/S AKSHAR BUILDERS

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Versus

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THE PRINCIPAL COMMISSIONER OF INCOME TAX (CENTRAL)

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Appearance:

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MR J. P. SHAH, SENIOR ADVOCATE with MR MANISH J SHAH(1320) for the Petitioner

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MR. M. R. BHATT, SENIOR ADVOCATE with MRS MAUNA M BHATT(174) for the Respondents

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Page 1 of 5

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C/SCA/8122/2019 ORDER

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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI

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and

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HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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Date : 07/05/2019

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ORAL ORDER

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(PER : HONOURABLE MS.JUSTICE HARSHA DEVANI)

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Rule Mrs. Mauna Bhatt, learned senior standing counsel waives service of notice of rule on behalf of the respondents in each of the petitions.

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By these petitions under Article 226 of the Constitution of India, the petitioners have called in question the common order dated 1.4.2019 passed by the Settlement Commission holding that it does not have the power to extend the due date of passing order within eighteen months from the date of filing the applications .

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Shorn of all unnecessary facts, the relevant facts are that by a judgment and order 4.2.2019 passed in Special Civil Application No. 13581 of 2018 and allied matters set aside the orders dated 2.2.2018 passed by the Settlement Commission under section 245D(2C) of the Income Tax Act, 1961 whereby it had held the applications filed by the respective petitioners to be invalid and restored the matters to the file of the Settlement Commission from the stage of section 245D(2C) of the Act to decide the same in accordance with law.

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Page 2 of 5

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C/SCA/8122/2019 ORDER

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Thereafter the Settlement Commission fixed the matter for hearing on 1.4.2019 and by an order dated 1.4.2019 held the application to be valid. The Settlement Commission recorded that the learned CIT (DR) had argued that the period during which the proceedings of the High Court of Gujarat were in progress and till the passing of the order, the period should be taken as “zero period” and the due date of eighteen months have to be reckoned from the date of filing of the application after reducing the zero period. It appears that the learned authorised representative expressed reservation extension of time barring date by the Commission on its own. The Settlement Commission agreed with the learned authorised representative that it may not be able to extend the due date of passing of order and held that the time barring date would remain the same as 31.05.2019 in case of petitioners shown at serial number 1 to 9 in the cause title and 30.06.2019 in case of the petitioner at serial number 10 unless the time is extended by the High Court. Being aggrieved, the petitioners have approached this court.

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Heard Mr. J.P. Shah, Senior Advocate, learned counsel with Mr. Manish Shah, learned advocate for the petitioner and Mr. M R Bhatt, Senior Advocate, learned counsel with Mrs. Mauna Bhatt, learned Senior Standing Counsel for respondents.

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The only issue that arises for consideration is whether the time taken by the petitioners in pursuing the remedy before this court would stand excluded while computing the period of 18 months prescribed under clause (iii) of section 245D(4A) of the Act.

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Page 3 of 5

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C/SCA/8122/2019 ORDER

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Section 245D(2A) of the Act to the extent the same is relevant for the present purpose reads thus:

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“(4-A) The Settlement Commission shall pass an order under sub-section (4)—

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(iii) in respect of an application made on or after the 1st day of June, 2010, within eighteen months from the end of the month in which the application was made.”

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Thus, sub-section (4A) of section 245D of the Act mandates that the Settlement Commission passes an order under section 245D(4) of the Act within eighteen months from the end of the month in which the application was made which period would be over on 31^st May, and 30^th June respectively. In this case, the Settlement Commission passed orders under section 245D(2C) of the Act treating the applications made by the petitioners to be invalid. Against such orders, the petitioners approached this court by way of writ petitions, which came to be allowed by a judgment and order dated 4.2.2019 whereby the orders dated 2.2.2018 came to be set aside and the matters were restored to the file of the Settlement Commission. However, the operation of the judgment and order dated 4.2.2019 was stayed for a further period of four weeks so as to enable the respondent to approach the superior forum. Thus, for the period between 2.2.2018 till four weeks after 4.2.2019, there were no applications pending before the Settlement Commission and such applications were restored to the file of the Settlement Commission only pursuant to the order of this court. Therefore, the period between 2.2.2018 to four weeks after 4.2.2019 when the applications stood disposed of, cannot be taken into consideration for the purpose of computing the period of eighteen months as contemplated under section 245D(4A) of the Act.

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Page 4 of 5

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C/SCA/8122/2019 ORDER

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The petitions, therefore, succeed and are accordingly allowed. It is held that the period from 2.2.2018 to four weeks after 4.2.2019 shall stand excluded while computing the period of eighteen months for passing the order under section 245D(4) of the Income Tax Act, 1961. Needless to state that the Settlement Commission should not wait for the entire period of eighteen months for passing the order under section 245D(4) of the Income Tax Act, 1961 to be over and may decide the application as expeditiously as possible. Rule is made absolute accordingly in each of the petitions with no order as to costs.

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(HARSHA DEVANI, J)

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(BHARGAV D. KARIA, J)

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B.U. PARMAR

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Page 5 of 5

M/S Akshar Enterprise v. the Principal Commissioner of Income Tax (Central)

Case brief

What is this about?

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M/S Akshar Enterprise v. the Principal Commissioner of Income Tax (Central)

Case brief

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What did the court decide?

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