Bombay High Court
Gurjeet Singh vs Union Of India And 4 Ors on 14 July, 2022
Bench: K. R. Shriram, Milind N. Jadhav
212.os.wp.563.09.doc
S.S.Kilaje IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
WRIT PETITION NO. 563 OF 2009
Gurjeet Singh .. Petitioner
Versus
Union of India and Ors. .. Respondents
....................
Mr. Jitendra Motwani a/w. Mr. Chirag Shetty i/by Economic Laws
Practice for Petitioner
Mr. P. S. Jetly, Senior Advocate i/by Mr. Jitendra B. Mishra for
Respondents ...................
CORAM : K. R. SHRIRAM &
MILIND N. JADHAV, JJ.
DATE : 14th JULY, 2022
P. C.:
1. Petitioner has approached this court for impugning an order dated 23.01.2009 passed by the Settlement Commission - respondent No.2, i.e., Settlement Commission, Customs & Central Excise, Mumbai. By the said order, respondent No.2 came to a conclusion that the application filed by petitioner under section 127C of the Customs Act, 1962 ("the said Act") stood abated by virtue of sub-section 6 of section 127C of the said Act because the application was filed prior to 30.06.2007 and it did not get disposed before 29.02.2008, the cut-off date. Respondent No.2 also gave liberty to petitioner to file, in the interest of fairplay and justice, the application afresh if they chose to do so.
2. According to petitioner, it diligently pursued its application at all times and it was the department that had resorted to challenge the 1 of 4
212.os.wp.563.09.doc interim order passed by the Settlement Commission belatedly and thereby creating an impediment in the progress of the proceedings before the Settlement Commission. The thrust of Mr. Motwani's submissions is that the department was instrumental in first creating a situation of simultaneously pursuing the matter before multiple forum and subsequently using the resultant time loss to effectively thwart petitioner's application being considered by the Settlement Commission.
3. Having considered the facts and circumstances of the case and the chronology of dates given in the petition and submissions by Mr.Motwani, in our view, petitioner should be permitted to file an application afresh before the Settlement Commission and the Settlement Commission shall consider the same on merits in accordance with law. The provisions cannot be construed as punishing an applicant for the inability or failure of the Settlement Commission to dispose the application within the period specified where such delay in disposal is not attributable to petitioner. Otherwise it would amount to punishing petitioner for the inability of the Settlement Commission to fulfill its statutory obligation, for matters completely beyond his control. We find support for this view in the judgment of Division Bench of this court, in Star Television News Ltd. Vs. Union of India1 where paragraph Nos. 49 and 54 reads as under :-
1 [2009]184 Taxman 400 (Bombay) 2 of 4
212.os.wp.563.09.doc " 49. The principles set out above in the abovementioned decisions squarely apply in the present case where the purported objective of the amendments introduced in Chapter XIX-A by the 2007 Act, is to streamline the proceedings before the Settlement Commission and to ensure expeditious disposal of pending cases. The said amendments cannot be construed as punishing an applicant for the inability or failure of the Settlement Commission to dispose of its application within the period specified in section245D(4A) where such delay in disposal is not attributable to the applicant. The time-limit for disposal of an application under Section 245D(4A)(1) will have to be read as 'may' to the extent that it is not on account of the fault of the applicant. It does do same violence to the language, but at the same time the constitutionality of the provision can be upheld. To do otherwise would be to punish an applicant for the inability of the Settlement Commission to fulfill its statutory obligation, for matters completely beyond the applicant's control. As set out above, the Court will presume that the legislature enacts laws which, are honest, fair and equitable and that the legislative process is influenced by considerations of justice and reason. Accordingly, an interpretation leading to such an unjust, inequitable, harsh and absurd result must be rejected. Consequently, section 245HA(1)(iv)must be read in the manner set out above only to applications where the applicants have, by some willful act or omission, prevented the Settlement Commission from fulfilling its statutory mandatory duty under section 245D(4A) only such applications will abate.
To do so will also avoid the inequitably and unjust result whereby an applicant, who has been induced to pay the tax on the income disclosed and interest thereon by reason of a statutory assurance that its application will be settled by the Settlement Commission on or before 31st March 2008, is penalized for no fault of its own by the abatement of its application and the attendant consequences, including disclosure of the confidential information and material to the IT Authorities for use in proceedings before them as also possible proceedings for penalty and prosecution. It is for the Settlement Commission to decide the aspect of the matter.
54. From the above discussion having arrived at a conclusion that fixing the cut-off date as 31 st March, 2008 was arbitrary the provisions of Section 245HA(1)(iv) to that extent will be also arbitrary. We have also held that it is possible to read down the provisions of Section 245HA(1)(iv) in the manner set out earlier. This recourse has been taken in order to avoid holding the provisions as unconstitutional. Having so read, we would have to read Section 245HA(1)(iv) to mean that in the event the application could not be disposed of for any reasons attributable on the part of the applicant who has made an 3 of 4
212.os.wp.563.09.doc application under Section 245C. Consequently only such proceedings would abate under Section 245HA(1)(iv). Considering the above, the Settlement Commissioner to consider whether the proceedings had been delayed on account of any reasons attributable on the part of the Applicant. If it comes to the conclusion that it was not so, then to proceed with the application as if not abated. Respondent No.1 if desirous of early disposal of the pending applications, to consider the appointment of more Benches of the Settlement Commission, more so at the Benches where there is heavy pendency like Delhi and Mumbai."
This judgment was later upheld by the Apex Court in Union of India Vs. Star Television News Ltd.2.
4. The time lost from the date of the impugned order till the application is filed, which Mr. Motwani states will be filed within 4 weeks from today, shall be excluded. Since, the application had already been admitted earlier, we would request the Settlement Commission to endeavour to finally dispose the application in the first hearing itself.
5. Petition disposed.
6. We clarify we have not make any observation on the merits of the matter.
[ MILIND N. JADHAV, J. ] [K. R. SHRIRAM, J.]
2 [2015] 57 taxmann.com.305(SC)
4 of 4