M/S NISHANT FINANCE PVT. LTD. v. INCOME TAX SETTLEMENT COMMISSION - 2015-LL-0923-33

Citation	2015-LL-0923-33
Appellant Name	M/S NISHANT FINANCE PVT. LTD.
Respondent Name	INCOME TAX SETTLEMENT COMMISSION
Court	HIGH COURT OF MADHYA PRADESH
Relevant Act	Income-tax
Date of Order	23/09/2015
Judgment	View Judgment
Keyword Tags	application to settlement commission • opportunity of being heard
Bot Summary:	The petitioner has filed this writ petitionchallenging the order dated 8.5.2015 passed bythe Income Tax Settlement Commission, Mumbai,rejecting an application filed by the applicant incase No.MP/BHCC/099/2014-15/IT. Primarily, the grievance of the petitioner isthat the Settlement Commission did not hear theapplication filed under Section 245(c) of theIncome Tax Act in accordance to the requirementof the statute that is proper opportunity ofmaking submission, argument and making deepenquiry was not entered into. It is said that theissue averred in the affidavit of the counselhimself appearing for the Commission on8.5.2015, that the Commission disposed of thematter in the manner as is indicated in the lettersubmitted by the Chartered Accountant whoappeared on behalf of the petitioner before theCommission in the application Annexure P-7available at page 164. In the said application adetailed assertion is made with regard to theproceedings that took place on the said date, thefacts of more than 5 to 6 cases of the applicant isheard and being taken, paucity of time and in themanner in which the application is rejected byhighlighting these facts which is supported byaffidavit of the Chartered Accountant and therepresentative himself filed as annexure P-8. 336 ITR 174 Rajasthan, it is emphasized byShri Sumit Nema that the application has notbeen properly decided. Even though Shri Sanjay Lal, counsel for therespondents tried to refuse the aforesaidcontention but on going through the assertionmade in the petition as is indicated herein above,the manner in which the order is passed and afterconsidering the law laid down and theobservations made by the Rajasthan High Courtin the case of Harikishan Vijayvargiyaparticularly, the observations and findingsrecorded in para 20 onwards, we find, that therequirement of law is that an application filed forsettlement in accordance with the provision ofSection 245 has to be decided after givingproper opportunity of hearing to the assesseconcerned, conducting an enquiry as envisagedtherein and after showing application of mind inthe decision taken. The manner in which theapplication has been filed and has been decidedin the present case is evaluated in the backdropas are available in the Annexure P-7, which issupported by the affidavit of the representative ofthe assesse himself, we find that properopportunity has not been granted and in a hurriedmanner the application has been decided. The application already filed which ispending be heard and decided in accordance tolaw after giving due opportunity of representationand submission to the petitioner.

WP-12452-2015
(M/S NISHANT FINANCE PVT. LTD. Vs INCOME TAX SETTLEMENT COMMISSION)

23-09-2015

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

(RAJENDRA MENON) (C V SIRPURKAR)
JUDGE JUDGE
M/S NISHANT FINANCE PVT. LTD. v. INCOME TAX SETTLEMENT COMMISSION

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