WP-12972-2018 (1) HIGH COURT OF MADHYA PRADESH: JABALPUR (Division Bench) Writ Petition No. 12972/2018 Petitioner : Jay Kumar Singh Versus Respondents : Principal Commissioner of Income-Tax (Central Circle), Bhopal and others Coram: Honble Shri Justice Ajay Kumar Mittal, Chief Justice Honble Shri Justice Vijay Kumar Shukla, Judge Appearance: Shri Mukesh Agrawal, Advocate for petitioner. Shri Sanjay Lal, Advocate for respondents No.1 to 3. ORDER (Oral) [06.01.2020] Per: Ajay Kumar Mittal, Chief Justice: petitioner by filing instant writ petition under Article 226 of Constitution of India has challenged order dated 18.12.2017 (Annexure P-2) passed by Settlement Commission whereby application preferred by petitioner under Section 245D(6B) of Income Tax Act, 1961 (hereinafter referred to as Act) for rectification of order, has been dismissed. 2. facts leading to present petition are that petitioner being individual assessee filed application under Section 245D(4) of Act before Settlement Commission for settlement on 24.2.2015 disclosing additional income as prescribed under Section 245C of Act for period 2007-08 to 2013-14. said application was decided by Settlement WP-12972-2018 (2) Commission vide order dated 28.11.2016. Noticing certain errors in order dated 28.11.2016, petitioner preferred application (Annexure P- 1) under Section 245D(6B) of Act for rectification of mistakes on 30th June, 2017. petitioner asserts that order dated 28.11.2016 was served upon him in month of December, 2016 and this averment was specifically made in application so as to say that application was within period of limitation. However, Settlement Commission vide order impugned herein has dismissed application for rectification on ground that same is barred by limitation, which is challenged herein. 3. Learned counsel for petitioner submitted that order under Section 245C of Act was passed on 28.11.2016 but it was served upon petitioner in month of December, 2016, hence, limitation of six months as provided under Clause (a) of Section 245D(6B) read with first proviso contained therein, would expire on 30.06.2017 and therefore, application for rectification filed on 30.06.2017 was well within limitation. Learned counsel has vehemently argued that for purposes of Section 245D(6B) of Act, limitation ought to have been counted from date of service of order and not from date of order itself. In this context, he has placed heavy reliance upon two judgments of Supreme Court reported in AIR 1961 SC 1500 (Raja Harish Chandra Raj Singh vs. Deputy Land Acquisition Officer and another) and (2003) 6 SCC 186 (D. Saibaba vs. Bar Council of India and another). Reliance has also been placed upon Division Bench decision of Bombay High Court reported in (1959) 37 ITR 264 (Petlad Bulakhidas Mills Co. Ltd. vs. Raj Singh and another). WP-12972-2018 (3) 4. Shri Lal, learned counsel appearing for Revenue, on other hand, arguing in support of impugned order has contended that proviso attached to Section 245D(6B) of Act creates bar in entertaining application for rectification after expiry of six months from end of month in which order under sub-section (4) of Section 245D of Act is passed by Settlement Commission. 5. We have heard learned counsel for parties and find that present petition deserves to be dismissed. 6. Section 245D of Act lays down procedure on receipt of application under Section 245C of Act. Under sub-section (6B) thereof, Settlement Commission has been empowered to rectify any mistake apparent from record in order passed by it under sub-section (4) thereof. Sub-section (6B) of Section 245D of Act reads as under:- (6B) Settlement Commission may, with view to rectifying any mistake apparent from record, amend any order passed by it under sub- section (4) (a) at any time within period of six months from end of month in which order was passed; or (b) at any time within period of six months from end of month in which application for rectification has been made by Principal Commissioner or Commissioner or applicant, as case may be: Provided that no application for rectification shall be made by Principal Commissioner or Commissioner or applicant after expiry of six months from end of month in which order under sub-section (4) is passed by Settlement Commission: Provided further that amendment which has effect of modifying liability of applicant shall not be made under this sub- section unless Settlement Commission has given notice to applicant and Principal Commissioner or Commissioner of its intention to do so and has allowed applicant and Principal Commissioner or Commissioner opportunity of being heard. WP-12972-2018 (4) 7. perusal of sub-section (6B) of Section 245D of Act makes it amply clear that any mistake apparent from record in order passed by Settlement Commission under sub-section (4) of Section 245D of Act may be rectified at any time within period of six months from end of month in which order was passed or at any time within period of six months from end of month in which application for rectification has been made by Principal Commissioner or Commissioner or applicant, as case may be. first proviso to sub- section (6B) further creates embargo for making any such application for rectification after expiry of six months from end of month in which order under sub-section (4) is passed by Settlement Commission. In present case, order under sub-section (4) of Section 245D was passed by Settlement Commission on 28.11.2016. Thus, six months from end of month in which order was passed, expired on 31st May, 2017. Admittedly, application under Section 245D(6B) of Act was filed by petitioner on 30.06.2017 which was barred by limitation as provided under sub-section (6B) thereof. 8. Still further, even if argument advanced by petitioner that limitation of six months for entertaining application under Section 245D(6B) of Act would start running from date order was served on petitioner, is considered, there is nothing to show as to on which date in month of December, 2016 order was served upon petitioner. petitioner has only stated that order dated 28.11.2016 was served upon him in month of December, 2016 and has not demonstrated that order dated 28.11.2016 was served upon him on or after 30th December, 2016 so as to claim that application filed by petitioner on 30 th June, 2017 was WP-12972-2018 (5) within limitation. Thus, considering controversy from this angle also, no case is made out in favour of petitioner. 9. In Supreme Court decision in Raja Harish Chandra Raj Singh (supra), relied upon by learned counsel for petitioner, question arose for consideration as to whether application filed by petitioner under Section 18 of Land Acquisition Act, 1894 was in time or not. proviso to Section 18 of said Act deals with question of limitation. Supreme Court observed that Section 12(2) of said Act makes it obligatory on Collector to give immediate notice of his award to such of persons interested as are not present personally or by their representatives when award is made. It is in this background, Court held that failure of Collector to discharge his obligation under Section 12(2) of said Act would directly tend to make ineffective right of party to make application under Section 18 and therefore, High Court was in error in coming to conclusion that application made by appellant in said proceedings was barred under proviso to Section 18 of said Act. relevant extract of said decision reads as under:- 7. In this connection it is material to recall fact that under section 12(2) it is obligatory on Collector to give immediate notice of award to persons interested as are not present personally or by their representatives when award is made. This requirement itself postulates necessity of communication of award to party concerned. Legislature recognised that making of award under section 11 followed by its filing under Section 12(1) would not meet requirements of justice before bringing award into force. It thought that communication of award to party concerned was also necessary, and so by use of mandatory words obligation is placed on Collector to communicate award immediately to WP-12972-2018 (6) person concerned. It is significant that section requires Collector to give notice of award immediately after making it. This provision lends support to view which we have taken about construction of expression "from date of Collector's award" in proviso to Section 18. It is because communication of order is regarded by Legislature as necessary that Section 12(2) has imposed obligation on Collector and if relevant clause in proviso is read in light of this statutory requirement it tends to show that literal and mechanical construction of said clause would be wholly inappropriate. It would indeed be very curious result that failure of Collector to discharge his obligation under Section 12(2) should directly tend to make ineffective right of party to make application under Section 18, and this result could not possibly have been intended by legislature. However, in present case, under sub-section (6B) of Section 245D of Act, there is no such requirement expressly provided for communication of order of which rectification is sought, rather said provision entitles both Principal Commissioner or Commissioner or applicant to seek rectification of any mistake apparent from record in order passed by Settlement Commission under sub-section (4) of Section 245D of Act within six months from end of month when order, rectification of which is sought, was passed. Thus, decision in Raja Harish Chandra Raj Singh (supra) does not confer any advantage to petitioner. 10. Similarly, another decision of Supreme Court in D. Saibaba (supra) and Division Bench decision of Bombay High Court in Petlad Bulakhidas Mills (supra) relied upon by learned counsel for petitioner are also of no help to petitioner being distinguishable on facts and passed in cases considering different enactments. These decisions were also referred to by petitioner before learned Settlement Commission and Commission observed as under:- WP-12972-2018 (7) 5. After considering arguments of both sides and legal position on issue, we are of opinion that none of these case laws are directly on section 245D(6B) and to clarify intent of legislature on limitation period, proviso to this section has been inserted w.e.f. 01.06.2015. This proviso clearly mentions that time period of six months for filing rectification application is from date of passing order u/s 245D(4) and not from its date of receipt by PCIT or applicant. There is no dispute that application has been filed after six months from end of month of passing order u/s 245D(4). Further, section 268 referred by applicant relates to cases of exclusion of time for taking copy of order where order has not been served upon applicant. In present case order has been served upon applicant and applicant has never asked for any copy of un-served order. We are of opinion that law is unambiguous in its intent and ample time of six months was available with applicant to file rectification application. As present application has been filed beyond period of end of six months from end of month in which order u/s 245D(4) was passed, we are inclined to reject application of applicant considering it to be non-est. Since, application has been held to be non-est, other substantive issues are not being adjudicated on merit. 11. We do not find any error in findings recorded by learned Settlement Commission warranting interference in exercise of power of judicial review. That apart, if any right has been conferred by Legislature, it equally has right to take it away or prescribe reasonable conditions for exercise of right. Legislature would be perfectly within its right to regulate any right conferred by it while imposing conditions or restrictions on its exercise. 12. In view of foregoing reasons, writ petition sans substance and is accordingly dismissed. (Ajay Kumar Mittal) (Vijay Kumar Shukla) Chief Justice Judge S/ Digitally signed by SACHIN CHAUDHARY Date: 2020.01.29 18:18:50 +05'30' Jay Kumar Singh v. Principal Commissioner of Income-tax (Central Circle), Bhopal and other