Income-tax Act,1961
Act No : 43
Section :
SETTLEMENT OF CASES
1[CHAPTER XIXA] SETTLEMENT OF CASES 2[245A. Definitions In this Chapter, unless the context otherwise requires,- (a) "Bench" means a Bench of the Settlement Commission; (b) "case" means any proceeding under this Act for the assessment or reassessment of any person in respect of any year or years, or by way of appeal or revision in connection with such assessment or reassessment, which may be pending before an income-tax authority on the date on which an application under sub-section (1) of section 245C is made: Provided that where any appeal or application for revision has been preferred after the expiry of the period specified for the filing of such appeal or application for revision under this Act and which has not been admitted, such appeal or revision shall not be deemed to be a proceeding pending within the meaning of this clause; (c) "Chairman" means the Chairman of the Settlement Commission; (d) "Income-tax authority" means an income-tax authority specified in section 116; (e) "Member" means a Member of the Settlement Commission and includes the Chairman and a Vice-Chairman; (f) "Settlement Commission" means the Income-tax settlement Commission constituted under section 245B; (g) "Vice-Chairman" means a Vice-Chairman of the Settlement Commission.] 245B. Income-tax Settlement Commission (1) The Central Government shall constitute a Commission to be called the Income-tax Settlement Commission for the settlement of cases under this Chapter. --------------------------------------------------------------------- 1 Chapter XIX A inserted by the Taxation Laws (Amendment) Act, 1975, w.e.f. 1-4-1976. 2 Substituted by the Finance Act, 1987, w.e.f. 1-6-1987. Prior to the substitution, section 245A, as amended by the Finance (No. 2) Act, 1977, w.e.f.. 10-7-1978 and Taxation Laws (Amendment) Act, 1984, w.e.f. 1-10-1984, read as under: "245A. Definitions.-In this Chapter, unless the context otherwise requires,- (a) 'case' means any proceeding under this Act for the assessment or reassessment of any person in respect of any year or years, or by way of appeal or revision in connection with such assessment or reassessment, which may be pending before an Income-tax authority on the date on which an application under subsection (1) of section 245C is made; (b) 'Income-tax authority' means a Director of Inspection, a Commissioner, a Commissioner (Appeals), an Appellate Assistant Commissioner, an Inspecting Assistant Commissioner or an Income-tax Officer." 3 The words "(hereafter in this Chapter referred to as "the Settlement Commission")" omitted by the Finance Act, 1987, w.e.f. 1-6- 1987. ---------------------------------------------------------------------- 1.696 (2) The Settlement Commission shall consist of a Chairman 1[and as many Vice-Chairmen and other members as the Central Government thinks fit] and shall function within the Department of the Central Government dealing with direct taxes. 2[(2A) Omitted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act, 1986, w.e.f 10-9-1986.] (3) The Chairman, 3[, Vice-Chairman] and other members of the Settlement Commission shall be appointed by the Central Government from amongst persons of integrity and outstanding ability, having special knowledge of, and, experience in, problems relating to direct taxes and business accounts: Provided that, where a member of the Board is appointed as the Chairman 4[, Vice-Chairman] or as a member of the Settlement Commission, he shall cease to be a member of the Board. 5[Omitted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act, 1986, w.e.f 10-9-1986.] 6[245BA. Jurisdiction and powers of Settlement Commission (1) Subject to the other provisions of this Chapter, the jurisdiction, powers and authority of the Settlement Commission may be exercised by Benches thereof. (2) Subject to the other provisions of this section, a Bench shall be presided over by the Chairman or a Vice-Chairman and shall consist of two other Members. (3) The Bench for which the Chairman is the Presiding Officer shall be the principal Bench and the other Benches shall be known as Additional Benches. ---------------------------------------------------------------------- 1 Substituted for "and two other members" by the Taxation Laws (Amendment & Miscellaneous Provisions) Act, 1986, w.e.f. 10-9-1986. 2 Prior to the omission, sub-section (2A), as inserted by the Finance Act, 1982, w.e.f. 1-4-1982, read as under: "(2A) Notwithstanding anything contained in sub-section (2), when the post of one of the other members of the Settlement Commission is vacant for any reason, the Chairman and the other members of the Settlement Commission may function as, and exercise and discharge the powers and functions of, the Settlement Commission under this Chapter: Provided that if in any case the Chairman and member so functioning differ on any point or points, they shall state the point or points on which they differ and refer the same, as soon as may be after the said vacancy is filled, to the member appointed to fill the vacancy for hearing on such point or points and such point or points shall be decided according to his opinion." 3 Inserted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act, 1986, w.e.f. 10-9-1986. 4 Ibid. 5 Omitted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act, 1986, w.e.f. 10-9-1986. Prior to the omission, the second proviso read as under: "Provided further that, until the members are appointed under this sub-section, it shall be competent for the Central Government to require, from time to time, any two members of the Board to serve as members of the Settlement Commission for such period as the Central Government thinks fit, in addition to their duties as members of the Board." 6 Inserted by the Finance Act, 1987, w.e.f. 1-6-1987. ----------------------------------------------------------------------- 1.697 (4) Notwithstanding anything contained in sub-sections (1) and (2), the Chairman may authorise the Vice-Chairman or other Member appointed to one Bench to discharge also the functions of the Vice- Chairman or, as the case may be, other Member of another Bench. (5) Notwithstanding anything contained in the foregoing provisions of this section. and subject to any rules that may be made in this behalf, when one of the persons constituting a Bench (whether such person be the Presiding Officer or other Member of the Bench) is unable to discharge his functions owing to absence, illness or any other cause or in the event of the occurrence of any vacancy either in the office of the Presiding Officer or in the office of one or the other Members of the Bench, the remaining two persons may function as the Bench and if the Presiding Officer of the Bench is not one of the remaining two persons, the senior among the remaining persons shall act as the Presiding Officer of the Bench: Provided that if at any stage of the hearing of any such case or matter, it appears to the Presiding Officer that the case or matter is of such a nature that it ought to be heard of by a Bench consisting of three members, the case or matter may be referred by the Presiding Officer of such Bench to the Chairman for transfer to such Bench as the Chairman may deem fit. 1[(5A) Notwithstanding anything contained in the foregoing provisions of this section, the Chairman may for the disposal of any particular case, constitute a Special Bench consisting of more than three Members.] 2(6) Subject to the other provisions of this Chapter, the places at which the principal Bench and the additional Benches shall ordinarily sit shall be such as the Central Government may, by notification in the Official Gazette, specify 3[and the Special Bench shall sit at a place to be fixed by the Chairman].] 4[245BB. Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances (1) In the event of the occurrence of any vacancy in the office of the Chairman by reason of his death, resignation or otherwise, the ViceChairman or, as the case may be, such one of the Vice-Chairmen as the Central Government may, by notification in the Official Gazette, authorise in this behalf, shall act as the Chairman until the date on which a new Chairman, appointed in accordance with the provisions of this Chapter to fill such vacancy, enters upon his office. (2) When the Chairman is unable to discharge his functions owing to absence, illness or any other cause, the Vice-Chairman or, as the case may be, such one of the Vice-Chairmen as the Central Government may, by notification in the Official Gazette, authorise in this behalf, shall discharge the functions of the Chairman until the date on which the Chairman resumes his duties.] ---------------------------------------------------------------------- 1 Inserted by the Finance (No. 2) Act, 1991, w.e.f. 1-10-1991. 3 Inserted by the Finance (No. 2) Act, 1991, w.e.f. 1-10-1991. 4 Inserted by the Finance Act, 1987, w,e.f. 1-6-1987. --------------------------------------------------------------------- 1.698 1[245BC. Power of Chairman to transfer cases from one Bench to another On the application of the assessee or the 2[Chief Commissioner or Commissioner] and after notice to them, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairman may transfer any case pending before one Bench, for disposal, to another Bench.] 3[245BD. Decision to be by majority If the Members of a Bench differ in opinion on any point, the point shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the Chairman who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Settlement Commission and such point or points shall be decided according to the opinion of the majority of the Members of the Settlement Commission who have heard the case, including those who first heard it.] 245C. Application for settlement of cases4 5[(1) An assessee may, at any stage of a case relating to him, make an application in such form and in such manner as may be prescribed, and containing a full and true disclosure of his income which has not been disclosed before the 6[Assessing] Officer, the manner in which such income has been derived, the additional amount of income-tax payable on such income and such other particulars as may be prescribed, to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided: 7[Provided that no such application shall be made unless,- (a) the assessee has furnished the return of income which he is or was required to furnish under any of the provisions of this Act; and (b) the additional amount of income-tax payable on the income disclosed in the application exceeds 8[one hundred thousand] rupees.] ---------------------------------------------------------------------- 1 Inserted by the Finance Act, 1987, w.e.f. 1-6-1987. 2 Substituted for "Commissioner" by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1-4-1988. 3 Inserted by the Finance Act, 1987, w.e.f. 1-6-1987. 5 Sub-sections (1) to (1E) substituted by the Taxation Laws (Amendment) Act, 1984, w.e.f. 1-10-1984. Prior to the substitution, sub-section (1) read as under: "(1) An assessee may, at any stage of a case relating to him, make an application in such form and in such manner and containing such particulars as may be prescribed to the Settlement Commission to have the case settled and any such application shall be disposed of in the manner hereinafter provided:" 6 Substituted for "Income-tax" by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1-4-1988. 7 Substituted by the Finance Act, 1987, w.e.f. 1-6-1987. Prior to the substitution, the proviso read as under: "Provided that no such application shall be made unless the additional amount of income-tax payable on the income disclosed in the application exceeds fifty thousand rupees." 8 Substituted for "fifty thousand" by the Finance Act, 1995, w.e.f. 1-7-1995. ---------------------------------------------------------------------- 1.699 (1A) For the purposes of sub-section (1) of this section and sub- sections (2A) to (2D) of section 245D, the additional amount of income-tax payable in respect of the income disclosed in an application made under sub-section (1) of this section shall be the amount calculated in accordance with the provisions of sub-sections (1B) to (1D). 1[(1B) Where the income disclosed in the application relates to only one previous year,- (i) if the applicant has not furnished a return in respect of the total income of that year (whether or not an assessment has been made in respect of the total income of that year), then, except in a case covered by clause (iii), tax shall be calculated on the income disclosed in the application as if such income were the total income; (ii) if the applicant has furnished a return in respect of the total income of that year (whether or not an assessment has been made in pursuance of such return), tax shall be calculated on the aggregate of the total income returned and the income disclosed in the application as if such aggregate were the total income; (iii) if the proceeding pending before the income-tax authority is in the nature of a proceeding for reassessment of the applicant under section 147 or by way of appeal or revision in connection with such reassessment, and the applicant has not furnished a return in respect of the total income of that year in the course of such proceeding for reassessment, tax shall be calculated on the aggregate of the total income as assessed in the earlier proceeding for assessment under section 143 or section 144 or section 147 and the income disclosed in the application as if such aggregate were the total income.] 2[(1C)The additional amount of income-tax payable in respect of the ---------------------------------------------------------------------- 1 Substituted by the Finance Act, 1987, w.e.f. 1-6-1987. Prior to the substitution, subsection (1B) read as under: "(1B) Where the income disclosed in the application relates to only one previous year,- (i) if the applicant has not furnished a return in respect of the total income of that year and no assessment has been made in respect of the total income of that year, tax shall be calculated on the income disclosed in the application as if such income were the total income; (ii) if the applicant has furnished a return in respect of the total income of that year and no assessment has been made in pursuance of such return tax shall be calculated on the aggregate of the total income returned and the income disclosed in the application as if such aggregate were the total income; and (iii) if an assessment in respect of the total income of that year has been made, tax shall be calculated on the aggregate of the total income as assessed and the income disclosed in the application as if such aggregate were the total income." 2 Substituted by the Finance Act, 1987, w.e.f. 1-6-1987. Prior to the substitution, subsection (IC) read as under: "(IC) The tax as calculated under sub-section (1B) shall be reduced,- (a) in a case referred to in clause (i) of sub-section (1B), by the sum if any, deducted at source tinder Chapter XVIIB or paid in advance under Chapter ----------------------------------------------------------------------- 1.700 income disclosed in the application relating to the previous year referred to in sub-section (1B) shall be,- (a) in a case referred to in clause (i) of that sub- section, the amount of tax calculated under that clause; (b) in a case referred to in clause (ii) of that sub- section, the amount of tax calculated under that clause as reduced by the amount of tax calculated on the total income returned for that year; (c) in a case referred to in clause (iii) of that sub- section, the amount of tax calculated under that clause as reduced by the amount of tax calculated on the total income assessed in the earlier proceeding for assessment under section 143 or section 144 or section 147.] (1D) Where the income disclosed in the application relates to more than one previous year, the additional amount of income-tax payable in respect of the income disclosed for each of the years shall first be calculated in accordance with the provisions of sub-sections (1B) and (IC) and the aggregate of the amount so arrived at in respect of each of the years for which the application has been made under sub-section (1) shall be the additional amount of income-tax payable in respect of the income disclosed in the application. (1E) Where any books of account, other documents, money, bullion, jewellery or other valuable article or thing belonging to an assessee are seized under section 132, the assessee shall not be entitled to make an application under sub-section (1) before the expiry of one hundred and twenty days from the date of the seizure.] (2) Every application made under sub-section (1) shall be accompanied by such fees as may be prescribed. (3) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant. 245D. Procedure on receipt of an application under section 245C 1 (1) On receipt of an application under section 245C, the Settlement Commission shall call for a report from the Commissioner and on the basis of the materials contained in such report and having regard to the nature and circumstances of the case or the complexity of the investigation involved therein, the Settlement Commission may, by order, allow the application to be proceeded with or reject the application: Provided that an application shall not be rejected under this subsection unless an opportunity has been given to the applicant of being heard: 2[Provided further that the Commissioner shall furnish the report within a period of forty-five days of the receipt of communication from the Settlement Commission in case of all applications made under section 245C on or after the 1st day of July 1995 and if the Commissioner fails to furnish the report within the said period, the Settlement Commission may make the order without such report.] 3[(1A) Omitted by the Finance (No. 2) Act, 1991, w.e.f 27-9- 1991.] (2) A copy of every order under sub-section (1) shall be sent to the applicant and to the Commissioner. 4[(2A) Subject to the provisions of sub-section (2B), the assessee ---------------------------------------------------------------------- 2 Substituted by the Finance Act, 1995, w.e.f. 1-7-1995. Prior to the substitution, the second proviso, as inserted by the Finance (No. 2) Act, 1991, w.e.f. 27-9-1991, read as under: "Provided further that the Commissioner shall furnish the report within a period of one hundred and twenty days of the receipt of communication from the Settlement Commission in case of all applications made under section 245C on or after the date on which the Finance (No. 2) Bill, 1991, receives the assent of the President* and if the Commissioner fails to furnish the report within the said period, the Settlement Commission may make the order without such report." * 27th September, 1991. Earlier, the second proviso was omitted by the Finance Act, 1979, w.e.f. 1-4-1979. 3 Prior to the omission, sub-section (1A), as inserted by the Finance Act, 1979, w.e.f. 1-4-1979 and amended by the Taxation Laws (Amendment) Act, 1984, w.e.f. 1-4-1984, read as under: "(1A) Notwithstanding anything contained in sub-section (1), an application shall not be proceeded with under that sub-section if the Commissioner objects to the application being proceeded with on the ground that concealment of particulars of income on the part of the applicant or perpetration of fraud by him for evading any tax or other sum chargeable or imposable under this Act, has been established or is likely to be established by any income-tax authority, in relation to the case: Provided that where the Settlement Commission is not satisfied with the correctness of the objection raised by the Commissioner, the Settlement Commission may, after giving the Commissioner an opportunity of being heard, by order, allow the application to be proceeded with under sub-section (1) and send a copy of its order to the Commissioner." 4 Inserted by the Taxation Laws (Amendment) Act, 1984, w.e.f. 1-10- 1984. ---------------------------------------------------------------------- 1.702 shall, within thirty-five days of the receipt of a copy of the order under sub-section (1) 1[allowing the application to be proceeded with], pay the additional amount of income-tax payable on the income disclosed in the application and shall furnish proof of such payment to the Settlement Commission.] 2[(2B) if the Settlement Commission is satisfied, on an application made in this behalf by the assessee, that he is unable for good and sufficient reasons to pay the additional amount of income-tax referred to in sub-section (2A) within the time specified in that sub- section, it may extend the time for payment of the amount which remains unpaid or allow payment thereof by instalments if the assessee furnishes adequate security for the payment thereof. 3[(2C) Where the additional amount of income-tax is not paid within the time specified under sub-section (2A), then, whether or not the Settlement Commission has extended the time for payment of the amount which remains unpaid or has allowed payment thereof by instalments under sub-section (2B), the assessee shall be liable to pay simple interest at fifteen per cent per annum on the amount remaining unpaid from the date of expiry of the period of thirty-five days referred to in sub-section (2A). 4[(2D) Where the additional amount of income-tax referred to in subsection (2A) is not paid by the assessee within the time specified under that sub-section or extended under sub-section (2B), as the case may be, the Settlement Commission may direct that the amount of income-tax remaining unpaid, together with any interest payable thereon under subsection (2C), be recovered and any penalty for default in making payment of such additional amount may be imposed and recovered, in accordance with the provisions of Chapter XVII, by the 5[Assessing] Officer having jurisdiction over the assessee.] (3) Where an application is allowed to be proceeded with under subsection (1), the Settlement Commission may call for the relevant records from the Commissioner and after examination of such records, if the Settlement Commission is of the opinion that any further enquiry or investigation in the matter is necessary, it may direct the Commissioner to make or cause to be made such further enquiry or investigation and furnish a report on the matters covered by the application and any other matter relating to the case. (4) After examination of the records and the report of the Commissioner received under sub-section (1), and the report, if any, of the Commissioner received under sub-section (3), and after giving an opportunity to the applicant and to the Commissioner to be heard, either in person or through a representative duly authorised in this behalf, and after examining such further evidence as may be placed before it or obtained by it, the Settlement Commission may, in accordance with the --------------------------------------------------------------------- 1 Inserted by the Finance Act, 1985, w.r.e.f. 1-10-1984. 2 Inserted by the Taxation Laws (Amendment) Act, 1984, w.e.f. 1-10- 1984. 3 Ibid. 4 Ibid. 5 Substituted for "Income-tax" by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1-4-1988. --------------------------------------------------------------------- 1.703 provisions of this Act, pass such order as it thinks fit on the matters covered by the application and any other matter relating to the case not covered by the application, but referred to in the report of the Commissioner under sub-section (1) or sub-section (3). 1[(5) Subject to the provisions of section 245BA, 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) and, in relation to the passing of such order, the provisions of section 245BD shall apply.] (6) Every order passed under sub-section (4) shall provide for the terms of settlement including any demand by way of 2[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. 3[(6A) Where any tax payable in pursuance of an order under sub- section (4) is not paid by the assessee within thirty-five days of the receipt of a copy of the order by him, then, whether or not the Settlement Commission has extended the time for payment of such tax or has allowed payment thereof by instalments, the assessee shall be liable to pay simple interest at fifteen per cent per annum on the amount remaining unpaid from the date of expiry of the period of thirty-five days aforesaid.] (7) Where a settlement becomes void as provided under sub- section (6), 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 and the income-tax authority concerned may, notwithstanding anything contained in any other provision of this Act, complete such proceedings at any time before the expiry of two years from the end of the financial year in which the settlement became void. 4[(8) For the removal of doubts, it is hereby declared that nothing contained in section 153 shall apply to any order passed under sub-section (4) or to any order of assessment, reassessment or recomputation required to be made by the 5[Assessing] Officer in pursuance of any ---------------------------------------------------------------------- 1 inserted by the Finance Act, 1987, w.e.f. 1-6-1987. The original sub-section (5) was amended by the Finance Act, 1982, w.e.f. 1-4-1982 and omitted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act, 1986, w.e.f. 10-9-1986. Prior to omission, it read as under: "(5) Subject to the provisions of sub-section (2A) of section 245B, the materials brought on record before the Settlement Commission shall be considered by all the members thereof before passing any order under sub-section (4) and, in the case of a difference of opinion among the members, the opinion of the majority shall prevail and such order shall be expressed in terms of the views of the majority." 2 Substituted for "tax or penalty" by the Finance Act, 1987, w.e.f. 1-6-1987. Earlier, these words were substituted for "tax, penalty or interest" by the Taxation Laws (Amendment) Act, 1984, w.e.f. 1-10- 1984. 3 Inserted by the Taxation Laws (Amendment) Act, 1984, w.e.f. 1-10- 1984. 4 Ibid. 5 Substituted for "Income-tax" by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1-4-1988. ---------------------------------------------------------------------- 1.704 directions contained in such order passed by the Settlement Commission 1[and nothing contained in the proviso to sub-section (1) of section 186 shall apply to the cancellation of the registration of a firm required to be made in pursuance of any such directions as aforesaid.] 2[245DD. Power of Settlement Commission to order provisional attachment to protect revenue (1) Where, during the pendency of any proceeding before it, the Settlement Commission is of the opinion that for the purpose of protecting the interests of the revenue it is necessary so to do, it may, by order, attach provisionally any property belonging to the applicant in the manner Provided in the Second Schedule: Provided that "here a provisional attachment made under section 281B is pending immediately before an application is made under section 245C, an order under this sub-section shall continue such provisional attachment up to the period up to which an order made under section 281 B would have continued if such application had not been made: Provided further that where the Settlement Commission passes an order under this sub-section after the expiry of the period referred to in the preceding proviso, the provisions of sub-section (2) shall apply to such order as if the said order had originally been passed by the Settlement Commission. (2) Every provisional attachment made by the Settlement Commission under sub-section (1) shall cease to have effect after the expiry of a period of six months from the date of the order made under sub-section (1): Provided that the Settlement Commission may, for reasons to be recorded in writing, extend the aforesaid period by such further period or periods as it thinks fit, so, however, that the total period of extension shall not in any case exceed two years.] 245E. Power of Settlement Commission to reopen completed proceedings If the Settlement Commission is of the opinion (the reasons for such opinion to be recorded by it in writing) that, for the proper disposal of the case pending before it, it is necessary or expedient to reopen any proceeding connected with the case but which has been completed 3[* * *] under this Act by any income-tax authority before the application under section 245C was made, it may, with the concurrence of the applicant, reopen such proceeding and pass such order thereon as it thinks fit, as if ---------------------------------------------------------------------- 1 Inserted by the Finance Act, 1987, w.e.f. 1-6-1987. 2 Inserted by the Finance Act, 1988, w.e.f. 1-4-1988. 3 The words "Linder the Indian Income-tax Act, 1922 (11 of 1922), or" omitted by the Taxation Laws (Amendment) Act, 1984, w.e.f. 1-10- 1984. ------------------------------------------------------------------------ 1.705 the case in relation to which the application for settlement had been made by the applicant under that section covered such proceeding also: 1[Provided that no proceeding shall be reopened by the Settlement Commission under this section if the period between the end of the assessment year to which such a proceeding relates and the date of application for settlement under section 245C exceeds nine years.] 245F. Powers and procedure of Settlement Commission (1) In addition to the powers conferred on the Settlement Commission under this Chapter, it shall have all the powers which are vested in an income-tax authority under this Act. (2) Where an application made under section 245C has been allowed to be proceeded with under section 245D, the Settlement Commission shall, until an order is passed under sub-section (4) of section 245D, have, subject to the provisions of sub-section (3) of that section, exclusive jurisdiction to exercise the powers and perform the functions of an income-tax authority under this Act in relation to the case. (3) Notwithstanding anything contained in sub-section (2) and in the absence of any express direction to the contrary by the Settlement Commission, nothing contained in this section shall affect the operation of any other provision of this Act requiring the applicant to pay tax on in relation to the matters before the Settlement Commission. (4) For the removal of doubt, it is hereby declared that, in the absence of any express direction by the Settlement Commission to the contrary, nothing in this Chapter shall affect the operation of the provisions of this Act in so far as they relate to any matters other than those before the Settlement Commission. 3[(5) Omitted by the Finance Act, 1987, w.e.f. 1-6-1987.] 4[(6) Omitted by the Finance Act, 1987, w.e.f. 1-6-1987.] 5[(7) The Settlement Commission shall, subject to the provisions of this Chapter, have power to regulate its own procedure and the procedure of Benches thereof in all matters arising out of the exercise of its powers ----------------------------------------------------------------------- 1 Substituted by the Finance Act, 1987, w.e.f. 1-6-1987. Prior to the substitution, tile proviso read as under: "Provided that no proceeding shall be reopened by the Settlement Commission under this section after the expiry of a period of eight years from the end of the assessment year to which such proceeding relates." 2 The words "or by way of advance tax" omitted by the Finance Act, 1987, w.e.f. 1-6-1987. 3 Prior to the omission, sub-section (5), substituted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act, 1986, w.e.f. 10-9-1986, read as under: "(5) The powers or functions of the Settlement Commission may be exercised or discharged by Benches constituted by the Chairman of the Settlement Commission from amongst the members thereof." 4 Prior to the omission, sub-section (6), as inserted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act, 1986, w.e.f. 10-9-1986, read as under: "(6) A Bench constituted under sub-section (5) shall consist of three members, one of whom shall be the Chairman or a Vice-Chairman." 5 Inserted by the Taxation Laws (Amendment & Miscellaneous Provisions) Act, 1986, w.e.f. 10-9-1986. ---------------------------------------------------------------------- ITA-45 1.706 or of the discharge of its functions, including the places at which the Benches shall hold their sittings.) 245G. Inspection, etc., of reports 1 No person shall be entitled to inspect, or obtain copies of, any reports made by any income-tax authority to the Settlement Commission; but the Settlement Commission may, in its discretion, furnish copies thereof to any such person on an application made to it in this behalf and on payment of the prescribed fee: Provided that, for the purpose of enabling any person whose case is under consideration to rebut any evidence brought on record against him in any such report, the Settlement Commission shall, on an application made in this behalf, and on payment of the prescribed fee by such person, furnish him with a certified copy of any such report or part thereof relevant for the purpose. 245H. Power of Settlement Commission to grant immunity from prosecution and penalty (1) The Settlement Commission may, if it is satisfied that any person who made the application for settlement under section 245C has cooperated with the Settlement Commission in the proceedings before- it and has made a full and true disclosure of his income and the manner in which such income has been derived, grant to such person, subject to such conditions as it may think fit to impose, immunity from prosecution for any offence under this Act or under the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and also 2[(either wholly or in part)] from the imposition of any penalty under this Act, with respect to the case covered by the settlement: 3[Provided that no such immunity shall be granted by the Settlement Commission in cases where the proceedings for the prosecution for any such offence have been instituted before the date of receipt of the application under section 245C.] 4[(1A) An immunity granted to a person under sub-section (1) shall stand withdrawn if such person fails to pay any sum specified in the order of settlement passed under sub-section (4) of section 245D within the time specified in such order or within such further time as may be allowed by the Settlement Commission, or fails to comply with any other condition subject to which the immunity was granted and thereupon the provisions of this Act shall apply as if such immunity had not been granted.] (2) An immunity granted to a person under sub-section (1) may, at any time, be withdrawn by the Settlement Commission, if it is satisfied that such person 5[* * *] had, in the course of the settlement proceedings, concealed any particulars material to the settlement or had given false evidence, and thereupon such person may be tried for the offence with -------------------------------------------------------------------- 2 Inserted by the Taxation Laws (Amendment) Act, 1984, w.e.f. 1-10- 1984. 3 Inserted by the Finance Act, 1987, w.e.f. 1-6-1987. 4 Ibid. 5 The words has not complied with the conditions subject to which the immunity was granted or that such person' omitted by the Finance Act, 1987, w.e.f. 1-6-1987. ---------------------------------------------------------------------- 1.707 respect to which the immunity was granted or for any other offence of which he appears to have been guilty in connection with the settlement and shall also become liable to the imposition of any penalty under this Act to which such per-son would have been liable, had not such immunity been granted. 1[245HA. Power of Settlement Commission to send a case back to the 2[Assessing] Officer If the assessee does not co-operate (1) The Settlement Commission may, if it is of opinion that any person who made an application for settlement under section 245C has not co-operated with the Settlement Commission in the proceedings before it, send, the case back to the 3[Assessing] Officer who shall thereupon dispose of the case in accordance with the provisions of this Act as if no application under section 245C had been made. (2) For the purposes of sub-section (1), the 4[Assessing] Officer shall be entitled to use all the materials and other information produced by the assessee before the Settlement Commission or the results of the inquiry held or evidence recorded by the Settlement Commission in the course of the proceedings before it as if such materials, information, inquiry and evidence had been produced before the 5[Assessing] Officer or held or recorded by him in the course of the proceedings before him. (3) For the purposes of the time limit under sections 149, 153, 154, 155 and 231 and for the purposes of payment of interest under sections 243 and 244, in a case referred to in sub-section (1), the period commencing on and from the date of the application to the Settlement Commission under section 245C and ending with the date of receipt by the 6[Assessing] Officer of the order of the Settlement Commission sending the case back to the 7[Assessing] Officer shall be excluded; and where the assessee is a firm, for purposes of the time- limit for cancellation of registration of the firm under sub-section (1) of section 186, the period aforesaid shall, likewise, be excluded.] 245-I. Order of settlement to be conclusive Every order of settlement passed under sub-section (4) of section 245D shall be conclusive as to the matter stated therein and no matter covered by such order shall, save as otherwise provided in this Chapter, be reopened in any proceeding under this Act or under any other law for the time being in force. ---------------------------------------------------------------------- 1 Inserted by the Finance Act, 1987, w.e.f. 1-6-1987. 2 Substituted for 'Income-tax' by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1-4-1988. ----------------------------------------------------------------------- 1.708 case may be. The scope of enquiry, whether by the High Court or before the Supreme Court, remains the same, viz., to consider whether the order of the Settlement Commission is contrary to the provisions of the Income-tax Act, and if so, whether it has prejudiced the petitioner. This is, of course apart from grounds of bias, fraud and malice which constitute a separate and independent category. Where, in a case before the Settlement Commission, the Commission has to interpret a trust deed, even if the interpretation placed by Commission on the trust deed is not correct, it would not be a ground for interference by the Supreme Court in an appeal from the order of the Settlement Commission made under section 245D, since a wrong interpretation of a deed of trust cannot be said to be a violation of the provisions of the Income-tax Act. It is equally clear that the interpretation placed upon the deed by the Commission does not bind the incometax authorities in proceedings relating to other assessment years not covered by the order. Jyotendrasinghji v Tripathi (SI) (1993) 201 ITR 611 (SC). 245J. Recovery of sums due under order of settlement Any sum specified in an order of settlement passed under sub- section (4) of section 245D may, subject to such conditions, if any, as may be specified therein, be recovered, and any penalty for default in making payment of such sum may be imposed and recovered in accordance with the provisions of Chapter XVII, by the 1[Assessing] Officer having ,jurisdiction over the person who made the application for settlement under section 245C. 245K. Bar on subsequent application for settlement in certain cases Where,- (i) an order of settlement passed under sub-section (4) of section 245D provides for the imposition of a penalty on the person who made the application under section 245C for settlement, on the ground of concealment of particulars of his income; or (ii) after the passing of an order of settlement under the said subsection (4) in relation to a case, such person is convicted of any offence under Chapter XXII in relation to that case; 2[or] 3[(iii) the case of such person is sent back to the 4[Assessing] Officer by the Settlement Commission under section 245HA,] then, he shall not be entitled to apply for settlement under section 245C in relation to any other matter. 245L. Proceedings before Settlement Commission to be judicial proceedings Any proceeding under this Chapter before the Settlement Commission shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196, of the Indian Penal Code 5 (45 of 1860). ---------------------------------------------------------------------- 1 Substituted for "Income-tax' by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1-4-1988. 2 Inserted by the Finance Act, 1987, w.e.f. 1-6-1987. 3 Ibid. 4 Substituted for "Income-tax" by the Direct Tax Laws (Amendment) Act, 1987, w.e.f. 1-4-1988. ---------------------------------------------------------------------- 1.709 1[245M. Certain persons who have filed appeals to the Appellate Tribunal entitled to make applications to the Settlement Commission.- Omitted by the Finance Act, 1987, w.e.f. 1-6-1987.] ---------------------------------------------------------------------- 1 Prior to the omission, section 245M, as inserted by the Taxation Laws (Amendment) Act, 1975, w.e.f. 1-4-1976 and amended by the Taxation Laws (Amendment) Act, 1984, w.e.f. 1-10-1984, read as under: "245M. Certain persons who have filed appeals to the Appellate Tribunal entitled to make applications to the Settlement Commission.- (1) Notwithstanding anything contained in this Chapter, any assessee who has filed an appeal to the Appellate Tribunal under this Act which is pending before it shall, on withdrawing such appeal from the Appellate Tribunal before the 1st day of October, 1984, be entitled to make an application to the Settlement Commission to have his case settled under this Chapter: Provided that no such assessee shall be entitled to make an application in a case where the Income-tax Officer has preferred an appeal under sub-section (2) of section 253 against the order to which the assessee's appeal relates. (2) Any assessee referred to in sub-section (1) may make an application to the Appellate Tribunal for permission to withdraw the appeal. (3) On receipt of an application tinder sub-section (2), the Appellate Tribunal shall grant permission to withdraw the appeal. (4) Upon the withdrawal of the appeal, the proceeding in appeal immediately before such withdrawal shall, for the purposes of this Chapter, be deemed to be a proceeding pending before an income-tax authority. (5) An application to the Settlement Commission under this section shall be made within a period of thirty days from the date on which the order of the Appellate Tribunal permitting the withdrawal of the appeal is communicated to the assessee. (6) An application made to the Settlement Commission under this section shall be deemed to be an application made under subsection (1) of section 245C and the provisions of this Chapter [except subsection (7) of section 245D] shall apply accordingly. (7) Where an application made to the Settlement Commission under this section is not entertained by the Settlement Commission, then, the assessee shall not be deemed to have withdrawl the appeal from the Appellate Tribunal and the provisions contained in section 253, section 254 and section 255 shall so far as may be, apply accordingly." ---------------------------------------------------------------------- 1.710
Read All Comments
