ACIT, New Delhi v. Laxman Dass, New Delhi

ITSSA 29/DEL/2011 | misc
Pronouncement Date: 30-03-2012 | Result: Dismissed

Appeal Details

RSA Number 2920116 RSA 2011
Assessee PAN AAGPD4078D
Bench Delhi
Appeal Number ITSSA 29/DEL/2011
Duration Of Justice 5 month(s) 27 day(s)
Appellant ACIT, New Delhi
Respondent Laxman Dass, New Delhi
Appeal Type Income Tax (Search & Seizure) Appeal
Pronouncement Date 30-03-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted H
Tribunal Order Date 30-03-2012
Date Of Final Hearing 28-03-2012
Next Hearing Date 28-03-2012
Assessment Year misc
Appeal Filed On 03-10-2011
Judgment Text
1 IT(SS) NOS.29 TO 32 /D/2011 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI H BENC H BEFORE SHRI A.N. PAHUJA AM AND SHRI C.M. GARG JM IT(SS) NOS.29 TO 32 /D/2011 BLOCK PERIOD:1-4-95 TO 5-10-2001 ACIT CIRCLE-1 ROOM NO.322 3 RD FLOOR ARA CENTRE JHANDEWALAN EXTN. NEW DELHI V/S . S/SH1. LAXMAN DAS [PAN:AAGPD 4078D] 2.GOVIND LAL [PAN: AABPL 6139 L] 3.VISHAN DAS [PAN: AAEPD 4836 F] & 4.VED PRAKASH [PAN:AAHPP 4003 H] IX 7038 ASHOK GALI GANDHI NAGAR DELHI ASSESSEE BY SHRI RAJESH JAIN AR REVENUE BY MRS. RENA S. PURI DR DATE OF HEARING 28-03-2012 DATE OF PRONOUNCEMENT 30 -03-2012 O R D E R A.N.PAHUJA:- THESE FOUR APPEALS FILED ON 3 RD OCTOBER 2011 BY THE REVENUE AGAINST FOUR SEPARATE ORDERS DATED 15 TH JULY 2011 OF THE CIT(A)-III NEW DELHI IN THE CA SE OF S/SHRI LAXMAN DAS GOVIND LAL VISHAN DASS AND VED PRAKASH RAISE THE FOLLOWING SIMILAR GROUNDS:- 1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE INTEREST OF ` ` 13 03 211/- CHARGED BY THE ASSESSING OFFICER U/S 245 D(2C) OF THE INCOME-TAX A CT 1961. 2 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE UNDIS CLOSED INCOME FINALLY SETTLED AT ` ` 37 04 040/- WAS ON ACCOUNT OF THE ORDER PASSED BY T HE SETTLEMENT COMMISSION WITHOUT APPRECIATING THE FACT THAT THE A SSESSEE HIMSELF HAD REVISED THE UNDISCLOSED INCOME EARLIER OFFERED BY HIM WHICH WAS ULTIMATELY ACCEPTED BY THE COMMISSION. 3 THE ORDER OF THE LEARNED CIT(A) IS ERRONEOUS AND IS NOT TENABLE ON FACTS AND IN LAW. 2 IT(SS) NOS.29 TO 32 /D/2011 4 THE APPELLANT CRAVES LEAVE TO ADD ALTER OR AMEND ANY/ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF TH E HEARING OF THE APPEAL. 2. FACTS IN BRIEF AS PER RELEVANT ORDERS AR E THAT A SEARCH U/S 132 OF THE INCOME- TAX ACT 1961 (HEREINAFTER REFERRED TO AS THE ACT) WAS CONDUCTED IN THE PREMISES OF K.C. GROUP OF CASES ON 5.10.2001. DURING THE SEARCH BESI DE CASH OF ` ` 2 16 500/- AND STOCK WORTH ` ` 53 21 218/- A NUMBER OF INCRIMINATING DOCUMENTS AN D BOOKS OF ACCOUNTS WERE SEIZED. MOREOVER A NUMBER OF UNDISCLOSED BANK ACCO UNTS CAME TO THE NOTICE. CONSEQUENTLY A NOTICE U/S 158BC OF THE ACT WAS SER VED UPON THESE ASSESSEES ON 8 TH OCTOBER 2002. IN RESPONSE THESE ASSESSEES FILED RETURN FOR THE BLOCK PERIOD ENDING 5 TH OCTOBER 2001 ON 10 TH DECEMBER 2002 DECLARING NIL UNDISCLOSED INCOME. IMMEDIATELY THEREAFTER ON 11.12.2002 APPLICATIONS U/S 245C(1) OF THE ACT WERE FILED BEFORE THE SETTLEMENT COMMISSION DISCLOSING INCOM E OF ` 10 00 000/- IN THE HANDS OF EACH OF THE AFORESAID FOUR PERSONS I.E AN AMOUNT O F ` 40 00 000/- @2% OF THE TURNOVER OF ` 20 CRORES. THESE APPLICATIONS WERE ADMITTED U/S 245 D(1) OF THE ACT VIDE THE ORDER DATED 23.10.2003. SUBSEQUENTLY THESE ASSESSES DE POSITED TAX OF ` `6 12 000/- EACH ON 26 TH DECEMBER 2003 IN TERMS OF AFORESAID ORDER DATED 2 3 RD OCTOBER 2003.LATER THESE ASSESSES DEPOSITED ` ` 12 240/- EACH ON 24 TH JULY 2007. AFTER ADMISSION OF THE APPLICATION U/S 245D(1) OF THE ACT THE COMMISSION CALLED FOR A REPORT UNDER RULE 9 OF THE SETTLEMENT COMMISSION RULES FROM THE CONCERNE D CIT IN THE LIGHT OF SAID REPORT THE SETTLEMENT COMMISSION HEARD THE MATTER ON 24 TH SEPTEMBER 2009 3 RD NOVEMBER 2009 18 TH NOVEMBER 2009 19 TH JANUARY 2010 AND 2 ND MARCH 2010 AND AN ORDER U/S 245D(4) OF THE ACT WAS PASSED ON 26.03.20 10 FOR THE BLOCK PERIOD IN THE FOLLOWING TERMS: 5. THE CASE WAS FINALLY HEARD ON 2.3.2010. SH. S. K. TULSIYAN ADVOCATE STATED THAT THE UNACCOUNTED TURNOVER MAINLY RELATED TO FA BRICS AND AS THE TRADING WAS ON WHOLESALE BASIS WHERE ELABORATE HANDLING ON THE PA RT OF THE APPLICANT WAS NOT REQUIRED. HE FURTHER SUBMITTED THAT FOR THE PURPOSE OF BUYING PEACE AND SETTING AT REST ALL DISPUTABLE ISSUES THE APPLICANTS IN MODIFICATI ON OF THEIR EARLIER DECLARATION WERE FINALLY OFFERING ADDITIONAL INCOME AS UNDER:- 6% OF AGGREGATE TURNOVER OF RS.21 36 02 650/- ADD;. SEED MONEY TOTAL .L 28 16 160 .20 00 000 .L 48 16 160 IT(SS) NO.29-31-2011 3 SH. TULSIYAN ADDED THAT THE REVISED OFFER OF RS.I 4 8 16 160 WOULD BE EQUALLY. DIVIDED IN THE HANDS OF THE FOUR APPLICANTS @ RS.37 04 040/- E ACH. 6. WE HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE THE RIVAL SUBMISSIONS AND THE DOCUMENTS ON RECORD. THERE IS N O DISPUTE REGARDING THE COMPUTATION OF THE TOTAL UNACCOUNTED TURNOVER BY TH E DEPTT. AT RS.21 36 02 650/- AS THE SAME HAS BEEN ACCEPTED BY THE APPLICANTS AND ON THAT BASIS THE OFFER OF THE ADDITIONAL INCOME HAS BEEN REVISED. AS REGARDS THE APPLICATION OF GROSS PROFIT RATE THE BENCH FINDS THAT THE CIT HAS ADOPTED THE GROSS PROFIT RATE VARYING FROM 8.56 TO 14.68% BASED ON THE DISCLOSED RESULTS OF T HE APPLICANTS IN THE RESPECTIVE YEARS IN THEIR REGULAR BOOKS OF ACCOUNT. IT IS RELEVANT TO MENTION HERE THAT WHILE THE ACCOUNTED BUSINESS OF THE APPLICANTS WAS IN HOSIERY GOODS THE UNACCOUNTED BUSINESS RELATED PREDOMINANTLY TO FABRI CS. THE CIT HAS NOT BEEN ABLE TO PRODUCE ANY MATERIAL TO THE CONTRARY. IN TH E CIRCUMSTANCES THE ADOPTION OF THE GROSS PROFIT RATE OF THE ACCOUNTED BUSINESS FOR THE UNACCOUNTED BUSINESS WOULD BE UNJUSTIFIED. IT IS SEEN THAT WHILE MAKING THE OFFER OF ADDITIONAL INCOME THE APPLICANTS HAVE TAKEN THE NET PROFIT RATE OF 6% . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE ADOPTION OF THE NET P ROFIT RATE BY THE APPLICANTS AT 6% APPEARS TO BE FAIR AND REASONABLE AND IS ACCEPTE D. 7. AS REGARDS THE THIRD ISSUE I.E. ESTIMATION OF THE WORKING CAPITAL IT IS SEEN THAT THE CIT IN THE REPORT UNDER RULE-9 HAS TAKEN 1 0% OF THE TOTAL TURNOVER AS THE UNEXPLAINED INVESTMENT OF THE GROUP FOR THE BLOCK P ERIOD. WE FIND THAT NEITHER IN THE REPORT UNDER RULE-9 NOR IN THE COURSE OF HEARIN G ANY BASIS FOR THE ESTIMATION AT 10% OF THE TOTAL TURNOVER HAS BEEN PROVIDED. THE APPLICANTS HAVE OFFERED A SUM OF RS.20 LAC AS T HE SEED MONEY AND HAVE CLAIMED THAT THE SAID CAPITAL WAS ADEQUATE TO GENER ATE THE .UNACCOUNTED TURNOVER OF THE BUSINESS. THEIR ARGUMENT IS THAT TH EY AVAILED OF THE CREDIT FACILITY FROM THE SUPPLIERS AND ALSO PLOUGHED BACK THE PROFI TS EARNED INTO THE BUSINESS. HAVING TAKEN INTO CONSIDERATION THE FACTS WE ARE IN CLINED TO ACCEPT THE OFFER OF THE SEED MONEY OF RS.20 LAC AS ADEQUATE FOR GENERAT ING THE UNACCOUNTED TURNOVER UNDER REFERENCE. 8. IN VIEW OF THE ABOVE DISCUSSION WE ACCEPT THE OFFER OF ADDITIONAL INCOME OF RS.L 48 16 160/- AS MENTIONED IN PARA 5 ABOVE. IN T HE ABSENCE OF ANYTHING TO THE CONTRARY BEING BROUGHT TO OUR NOTICE THE REQUEST OF THE APPLICANTS TO ALLOCATE THIS INCOME EQUALLY AMONG THE FOUR APPLICANTS I.E.RS.37 04 040/- EACH IS ALSO ACCEPTED. 9. THE COMPUTATION OF INCOME IS ENCLOSED AS PE R ANNEXURE. 10. THE APPLICANT HAS REQUESTED FOR WAIVER OF INTER EST UNDER VARIOUS PROVISIONS OF THE ACT. INTEREST ULS 158BFA BEING MANDATORY IN NAT URE ITS WAIVER CANNOT BE ALLOWED. THE A.O. IS DIRECTED TO CHARGE INTEREST AS PER LAW . INTEREST UNDER SECTION 220(2) APPLICABLE ON THE SUSTAINED DEMAND ON VARIOUS DATES IF ANY IS TO BE CHARGED UP TO THE DATE OF THIS ORDER. IT(SS) NO.29-31-2011 4 3. IN TERMS OF THE AFORESAID ORDER OF THE SETTL EMENT COMMISSION THE AO PASSED A CONSEQUENTIAL ORDER ON 4 TH MAY 2010 LEVYING INTER ALIA INTEREST U/S 245D( 2C) AND 158BFA(2) OF THE ACT AS UNDER:- INTEREST U/S 245D(2C) I NTEREST U/S 158BFA 6 DUE DATE OF RETURN 08.11.2002 7 RETURN FILED ON 10.12.2002 8 DELAY 1 MONTH 9 NET TAXABLE INCOME 37 04 040/- 10 INTEREST CHARGEABLE U/S 158BFA @1% PER MONTH 37 040/- 4. ON APPEAL AGAINST THE AFORESAID ORDER OF THE AO LEVYING INTEREST U/S 245D(2C) & 158BFA OF THE ACT THE LD. CIT(A) CONCLUDED AS UNDE R:- 5.FINDING ON GROUND OF APPEAL NO.1: THE ISSUE TO BE DECIDED IN THIS GROUND OF APPEAL IS WHETHER THE REVISED OFFER OF ADDITIONAL INCOME BY THE APPELLANT. WHICH WAS MADE DURING THE LAST DATE OF HEARING OF PROCEEDINGS UNDER SECTION 245D(4) OF THE IT ACT ON 2.03.201 0 (THE FINAL ORDER WAS PASSED ON 26.03.10) COULD BE TERMED AS REVISION BY THE APPLICANT OF HIS ORIGINAL APPLICATION FILED U/S 245C(1) AND WHICH WAS SUBSEQU ENTLY ADMITTED U/S 245D(1) BY THE COMMISSION VIDE ORDER DATED 23.10.03. IN THIS CONTE XT IT IS NOTED FROM THE ORDER U/S 245D( 4) THAT THE CASE WAS HEARD ON 24.09.09 03.11 .09 18.11.09 19.01.10 AND LASTLY ON 02.03.10. IT IS ALSO SEEN FROM PARA 5 OF 245D(4) ORDER THAT IT IS ON 02.03.10 THAT THE APPELLANT HAD MADE THIS OFFER OF ADDITIONAL INCOME WHICH HAS FINALLY BEEN ACCEPTED BY THE SETTLEMENT COMMISSION ( PARA 8 OF THE ORDER). T HE POINT BEING MADE BY THIS AO IS THAT BY THE OFFER MADE ON 02.03.10 THE APPELLANT HA S REVISED THE ORIGINAL APPLICATION MADE U/S 245C. AND THEREFORE IN VIEW OF SUCH RETROSPECTIVE R EVISION THE ASSESSEE IS ALSO LIABLE TO PAY INTEREST U/S245D(2C) ON THIS REV ISED INCOME FROM 01.01.04 ITSELF AS THE APPLICANT IN THE OPINION OF THE AO HAS DEFAULTED IN PAYMENT OF THE ADDITIONAL AMOUNT OF INCOME TAX PAYABLE ON THE INCOME DISCLOSE D IN THE ORIGINAL APPLICATION. S NO. PARTICULARS AMOUNT 1 AMOUNT DECLARED AS PER ORIGINAL APPLICATION DT. 23.10.2003 10 00 000/- 2 REVISED AMOUNT OF ORIGINAL APPLICATION 37 04 040/ - 3 TAX AND SURCHARGE PAYABLE AS PER DECLARATION MADE ON THE ABOVE. 22 66 872/- 4 TAX PAID ON THE DECLARATION MADE 6 12 000/- 5 DATE OF ORDER U/S 245D(1) 23 10 2003 6 DUE DATE OF PAYMENT OF TAX 01.01.2004 7 TAX PAID UPTO 01.04.2004 6 12 000/- 8 BALANCE TAX PAYABLE 16 54 872/- 9 INTEREST U/S 245D(2C) FROM 1.1.2004 TO 26.3.2010 AT THE RATE OF 15% 13 03 211/- IT(SS) NO.29-31-2011 5 ON THE OTHER HAND SUBMISSION MADE BY THE APPLICANT ON SUCH CHARGING OF INTEREST U/S 245D(2C) VEERS AROUND THE PROPOSITION THAT THERE HA S BEEN NO REVISION OF ORIGINAL APPLICATION TILED BY THE APPELLANT BEFORE THE HONB LE COMMISSION U/S 245C(1) AND THEREFORE THE QUESTION OF REVISION OF ADDITIONAL IN COME DOES NOT ARISE. THAT THE OFFER OF ADDITIONAL INCOME MADE DURING THE PROCEEDINGS U/S 2 45 D( 4) WAS CULMINATION OR THE DETAILED ORAL HEARINGS AND ARGUMENTS WHICH CONTINUE D IN THE COMMISSION ON THE DATES REFERRED TO IN THE 245D(4) ORDER. THAT ESSENTIALLY THE REVISED ADDITIONAL INCOME OFFER WAS BASED ON REVISION OF NET PROFIT RATE FROM 2% TO 6% ON THE UNDISCLOSED TURNOVER OF FABRICS AND WAS WITH A VIEW TO BUYING PEACE AND SET TLING AT REST ALL DISPUTABLE ISSUES. THIS OFFER OF THE APPLICANT MADE ON THE LAST DAY OF HEARING BEFORE THE COMMISSION HAS BEEN ACCEPTED BY THE COMMISSION AND FORMS PART OF T HE SETTLEMENT ORDER DATED 26.03.10. IT HAS BEEN SUBMITTED THAT THUS THE DETER MINATION OF ADDITIONAL INCOME IS IN SUBSTANCE QUANTIFICATION BY THE COMMISSION OF ADDIT IONAL INCOME THOUGH ON THE FACE OF IT OFFERED BY THE APPLICANT ON 02.03.10. I HAVE CAREFULLY CONSIDERED THE ISSUE AT HAND AND A M OF THE VIEW THAT THERE ARE ONLY TWO PROVISIONS U/S 245D UNDER WHICH CHARGING OF INT EREST CAN BE MADE. THE FIRST POINT IN TIME WHEN CHARGING OR INTEREST CAN BE MADE IS U/S 245D (2A) R.W.S . 245D(2C) OF THE ACT AND THE SECOND POINT IN TIME ARISES U/S 245D(6A ). UNDER THESE PROVISIONS ON RECEIPT OF AN APPLICATION U/S 245C THE COMMISSION U PON HEARING THE APPLICANT MAY ALLOW THE APPLICATION TO BE PROCEEDED WITH AND THE ASSESSEE SHALL WITHIN 35 DAYS OF THE RECEIPT OF THE COPY OF THE ORDER UNDER SUB SECTION (1) OF SECTION 245D HAS TO PAY THE ADDITIONAL AMOUNT OF INCOME TAX PAYABLE ON THE INCO ME DISCLOSED IN THE APPLICATION. HOWEVER WHERE THE ADDITIONAL OF AMOUNT OF INCOME TA X IS NOT PAID UNDER SUB SECTION (2A) OF 245D THEN THE ASSESSEE SHALL BE LIABLE TO P AY SIMPLE INTEREST AT 15% PER ANNUM ON THE AMOUNT REMAINING UNPAID FROM THE DATE OF EXP IRY OF THE PERIOD OF 35 DAYS REFERRED TO IN SUB SECTION (2C). THUS AS ENVISAGED IN THESE PROVISIONS THE APPLICANT HAS TO MAKE PAYMENT OF ADDITIONAL AMOUNT OF INCOME TAX ON THE INCOME DISCLOSED IN THE APPLICATION MADE IN THE UNDER SECTION 245C(1) ONCE THIS APPLICATION IS ADMITTED FOR FURTHER PROCEEDING WITH BY AN ORDER PASSED 245C(1). STRICTLY SPEAKING UNDER THE PROVISIONS IN SECTION 245C (1 ) .245D(1) 245D(2A) THERE IS NO SCOPE FOR REVISING AN APPLICATION MADE UNDER SECTION 245C MORE PARTICULARLY WHEN SUCH APPLICATION HAS BEEN ALLOWED TO BE PROCEEDED WITH VIDE ORDER U/S 245D(1) . TO PUT IT DIFFERENTLY ONCE AN APPLICATION IS ADMITTED VIDE ORDER U/S 245D(1) ANY FURTHER OFFER OF ADDITIONAL INCOME CAN ONLY HE DONE DURING THE COURSE OF PROCEEDINGS U/S 2 45D(4)AS HAS HAPPENED IN THIS CASE. ON A READING OF SECTION 245D (4) OF THE ACT I T IS NOTED THAT THE FINAL ORDER PASSED BY THE SETTLEMENT COMMISSION IS AFTER EXAMINATION O F RECORDS AND THE REPORT OF THE COMMISSIONER AND AFTER GIVING OPPORTUNITY TO THE AP PELLANT AND TO THE COMMISSIONER TO BE HEARD. NOW SUCH AN ORDER WOULD MORE OFTEN THAN N OT MAY RESULT IN ENHANCEMENT OF THE INITIAL OFFER OF ADDITIONAL INCOME MADE BY THE APPLICANT UNDER SECTION 245C(1). SUCH ENHANCEMENT CAN TAKE VARIOUS FORMS. THERE CAN BE A CASE WHERE UPON ELABORATE HEARING AND ARGUMENT IT IS THE APPLICANT HIMSELF WH O MAY BE CALLED UPON FURTHER OFFER ADDITIONAL INCOME WHICH IS MORE THAN THAT DISCLOSED IN HIS ORIGINAL APPLICATION AND IT IS THIS OFFER WHICH IS FINALLY ACCEPTED BY THE COMMISS ION IN ITS ORDER U/S 245D (4).THERE COULD BE AN ANOTHER ILLUSTRATION WHERE THE COMMISSI ON UPON HEARING BOTH THE PARTIES DETERMINES THE ADDITIONAL INCOME BY ITSELF WHICH IS MORE THAN THE AMOUNT OFFERED BY THE APPLICANT IN HIS ORIGINAL APPLICATION. NOW IN BOTH THESE SITUATIONS CAN IT BE SAID THAT IN THE FIRST CASE THERE WOULD BEING CHARGING OF INTERE ST U/S 245D(2C) ) ON THE PREMISE THAT THE APPLICANT HAS REVISED THE ORIGINAL APPLICATION WHIL E IN THE LATTER CASE THERE WOULD HE NO CHARGING OF INTEREST U/S 245D(2C) AS IN THIS CASE THE DETERMINATION OF ADDITIONAL INCOME HAS BEE N DONE BY THE COMMISSION ITSELF. I AM AFRAID THAT SUC H INTERPRETATION WOULD BE AGAINST THE IT(SS) NO.29-31-2011 6 LETTER AND SPIRIT OF THE PROVISIONS CONTAINED IN S. 245C(1) . 245D(1 ) (2) (2A) (2B) ( 2C) (4) & (6A) . THIS IS BECAUSE FIRSTLY THERE IS NO PROVISIO N IN CHAPTER XIX-A OF THE IT ACT WHICH PROVIDES FOR A SUBSEQUENT REVISION OF THE ORIGINAL APPLICATION AND THAT TOO IN A CASE WHERE SUCH APPLICATION HAS ALREADY BE EN ADMITTED BY THE COMMISSION AND ON WHICH ADDITIONAL AMOUNT OF TAX AND INTEREST IN DEFAULT OF PAYMENT OF TAX HAS ALREADY BEEN PAID. SECONDLY. THERE IS NO WAY THAT T HE ASSESSEE COULD HAVE VISUALIZED AS TO ON WHICH FIGURE THE FINAL DETERMINATION OF SE TTLEMENT AMOUNT WOULD ULTIMATELY BE MADE AND CONSEQUENTLY HE COULD NOT HAVE FORESEEN TH E ADDITIONAL TAXES AND INTEREST THEREON. LASTLY THE PROCESS OF SETTLEMENT IS THE O UTCOME OF DETAILED SUBMISSION AND ARGUMENTS FROM BOTH SIDES WHICH CAN IN A GIVE CASE RESULT IN OFFER OF ADDITIONAL TAX BY THE APPLICANT ITSELF WHICH IS IN THE NATURE OF BUYI NG PEACE FOR SETTING TO REST DISPUTABLE ISSUES. IN THE FACTS OF THIS CASE IT IS THIS FORM W HICH HAS TAKEN PLACE AND AS DISCUSSED ABOVE THE ADDITIONAL INCOME HAS BEEN FINALLY ESTIMA TED AT 6% OF PROFIT ON UNDISCLOSED SALES (THERE IS NO DISPUTE ON THE FIGURE OF UNDISCL OSED SALES) IN FABRICS. MERELY BASED ON THIS FACT. THERE SHOULD BE NO CASE FOR CHARGING OF INTEREST U/S 245D (2C). IN VIEW OF THIS DISCUSSION I AM INCLINED TO HOLD THAT THE UNDI SCLOSED INCOME FINALLY SETTLED AT RS. 37.04.040/-WAS ON ACCOUNT OF ORDER PASSED HY THE SE TTLEMENT COMMISSION U/S245D(4) OF THE ACT AND THE TAXES ON THIS INCOME AND INTERES T IN DEFAULT OF PAYMENT. IF ANY. CAN ONLY BE MADE STRICTLY IN TERMS OF SECTION 245D(6A) OF THE ACT. IT IS ALSO NOTED THAT THE DIRECTION GIVEN BY THE ITSC TO THE AO FOR CHARGING INTEREST AS PER LAW WAS WITH REFERENCE TO CHARGING OF INTEREST ULS L58BFA WHICH IS MANDATORY IN NATURE AND WHOSE WAIVER CANNOT BE ALLOWED. THIS VIEW EMANATES FROM T HE TACT THAT THE DIRECTION REGARDING CHARGING OF INTEREST AS PER LAW. IMMEDIATELY FOLLOW S THE SENTENCE REGARDING THE MANDATORY CHARGING OF INTEREST U IS 158BFA. THAT TH US THERE HAS BEEN NO SPECIFIC DIRECTION BY THE ITSC FOR CHARGING INTEREST U/S 245 D(2C) OF THE ACT: WHILE COMING TO THE ABOVE CONCLUSION THE FOLLOWING OBSERVATIONS MADE BY IT AT MUMBAI IN ACIT VS. SMT. LEONIE M. ALMEIDA 129 TTJ 747 HAVE ALSO BEEN RELIED UPON.- ' 4.3 . THERE ARE ALSO PROVISIONS FOR CHARGE OF INTEREST IN THE SCHEME OF CHAPTER XIX-A OF THE IT ACT RELATING TO THE SETTLEMENT OF A CASE BY SETTLEM ENT COMMISSION. THE ASSESSEE UNDER SECTION 245C OF THE ACT MAY FILE AN APPLICATION FOR SETTLEM ENT DISCLOSING PARTICULAR INCOME. THE COMMISSION AFTER FOLLOWING PROCEDURE PRESCRIBED MAY PROCEED TO DEAL WITH THE APPLICATION OR MAY REJECT THE APPLICATION AND THEREFORE THE DEMAND RAISED BY THE AO IN THE ASSESSMENT DOES NOT GET VACATED ONLY ON FILING OF APPLICATION BEFOR E THE SETTLEMENT COMMISSION. THE SETTLEMENT COMMISSION HAS JURISDICTION OVER THE ASSESSEE ONLY WHEN IT DECIDES TO PROCEED WITH THE APPLICATION AND ADMITS THE APPLICATION UNDER SECTIO N 245D(1). ONCE THE APPLICATION IS ADMITTED THE ASSESSEE IS REQUIRED TO PAY THE ADDITIONAL DEMA ND ON THE BASIS OF INCOME DISCLOSED IN THE APPLICATION WITHIN 35 DAYS OF THE ORDER OF THE COMM ISSION UNDER SECTION 245D(1) AND IN CASE THE DEMAND IS NOT PAID WITHIN THE TIME ALLOWED INTE REST AT PRESCRIBED RATE IS CHARGEABLE UNDER 245D(2C). SIMILARLY WHEN THE SETTLEMENT COMMISSION PASSES FINAL ORDER UNDER SECTION 245D(4) THE TAX PAYABLE IN PURSUANCE OF SUCH AN ORDER IS RE QUIRED TO BE PAID BY THE ASSESSEE WITHIN 35 DAYS OF THE RECEIPT OF COPY OF THE ORDER AND FOR FA ILURE TO DO SO THE ASSESSEE IS LIABLE TO PAY INTEREST AT THE PRESCRIBED RATE UNDER SECTION 245D( 6A). THUS THE INTEREST PAYABLE UNDER SECTION 220(2) AND THE INTEREST PAYABLE UNDER SECTIONS 245D (2C) AND 245D(6) ARE IN DIFFERENT CONTEXTS AND HAVE TO BE LEVIEDINDEPENDENTLY. ACCORDINGLY. IN VIEW OF ABOVE DISCUSSION . THE A O IS DIRECTED TO REVISE THE CALCULATION OF INTEREST CHARGED ULS 245D(2C) OF THE ACT IN TERMS OF THE ABOVE FINDINGS. THE GROUND OF APPEAL NO.1 IS THEREFORE ALLOWED IN FAVOUR OF THE APPELLANT. IT(SS) NO.29-31-2011 7 6. FINDING ON GROUND OF APPEAL NO.2:- SO FAR AS GROUND OF APPEAL NO 2 IS CONCERNED THE AO HAS CHARGED INTEREST 158BF A OF THE ACT AMOUNTING TO RS.37.040/- FOR ALLEGED DEF AULT OF LATE TILING OF BLOCK RETURN. WITH RESPECT TO THIS CHARGING OR INTEREST THERE ARE CLEAR DIRECTIONS OR THE ITSC IN PARA 10 OF ITS ORDER WHEREIN THE FOLLOWING HAS BEEN HELD 'INTEREST U/S 158BFA BEING MANDATORY IN NATURE ITS WAIVER CANNOT BE ALLOWED. THE A.O. IS DIRECTED TO CHARGE INTEREST AS PER LAW '. IN VIEW OF THE SPECIFIC FINDING OF THE COMMISSION AND THE FACT THAT THE ABOVE PROVISION IS MANDATORY IN NATURE. THIS GROUND OF APPEAL IS DISMI SSED. 5. THE REVENUE IS NOW IN APPEAL BEFORE US AGAI NST THE AFORESAID FINDINGS OF THE LD. CIT(A) DELETING INTEREST LEVIED U/S 245D(2C) OF TH E ACT. THE LD. DR WHILE CARRYING US THROUGH THE RELEVANT PROVISIONS OF SECTION 245D OF THE ACT AND ORDER OF THE SETTLEMENT COMMISSION CONTENDED THAT SINCE THE ASSESSEES SUO M OTU OFFERED ADDITIONAL INCOME TO TAX BEFORE THE SETTLEMENT COMMISSION THE AO WAS JU STIFIED IN LEVYING INTEREST U/S 245D (2C) OF THE ACT. 6. ON THE OTHER HAND THE LD. AR ON BEHALF OF THE ASSESSEE WHILE CARRYING US THROUGH THE PROCEDURE FOLLOWED BY THE SETTLEMENT COMMISSION IN DISPOSING OF THEIR APPLICATION SUPPORTED THE FINDINGS OF THE LD. CIT(A). THE LD. AR ARGUED THAT IN TERMS OF PROVISIONS OF SEC. 245I OF THE ACT THE AO HAD MERELY TO GIVE EFF ECT TO THE ORDER OF SETTLEMENT COMMISSION AND COULD NOT IMPOSE INTEREST WHICH DID NOT FORM PART OF THE ORDER OF THE SETTLEMENT COMMISSION. WHILE INVITING OUR ATTENTIO N TO PARA 10 OF THE ORDER OF THE SETTLEMENT COMMISSION THE LD. AR PLEADED THAT INT EREST U/S 158BFA(2) OF THE ACT BEING MANDATORY IN NATURE COULD NOT BE WAIVED AND THEREF ORE THE SETTLEMENT COMMISSION DIRECTED THE AO TO CHARGE INTEREST AS PER LAW..NOWH ERE IN THE SAID ORDER SETTLEMENT COMMISSION DIRECTED LEVY OF INTEREST U/S 245D(2C) O F THE ACT THE LD. AR ADDED.INTER ALIA THE LD. AR RELIED UPON THE DECISION DATED 26.03.200 9OF THE ITAT MUMBAI A BENCH IN ACIT VS. SMT. LEONIE M. ALMEIDA 129 TTJ (MUM)747. 7. WE HAVE HEARD BOTH THE PARTIES & GONE THROUGH THE FACTS OF THE CASE AS ALSO THE AFORESAID DECISION RELIED UPON BY THE LD. AR. AT T HE OUT SET WE MAY REFER TO THE RELEVANT EXTANT PROVISIONS OF SECTION 245D OF THE A CT WHICH READ AS UNDER:- 245D. PROCEDURE ON RECEIPT OF AN APPLICATION UNDER SECTIO N 245C. (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 CIR CUMSTANCES OF THE CASE OR THE IT(SS) NO.29-31-2011 8 COMPLEXITY OF THE INVESTIGATION INVOLVED THEREIN T HE SETTLEMENT COMMISSION SHALL WHERE IT IS POSSIBLE BY ORDER REJECT THE APPLICAT ION OR ALLOW THE APPLICATION TO BE PROCEEDED WITH WITHIN A PERIOD OF ONE YEAR FROM THE END OF THE MONTH IN WHICH SUCH APPLICATION WAS MADE UNDER SECTION 245C: PROVIDED THAT AN APPLICATION SHALL NOT BE REJECTED UNDER THIS SUB-SECTION UNLESS AN OPPORTUNITY HAS BEEN GIVEN TO THE APPLICANT OF BEIN G HEARD: PROVIDED FURTHER THAT THE COMMISSIONER SHALL FURNIS H THE REPORT WITH IN 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 TH E 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. (2) A COPY OF EVERY ORDER UNDER SUB-SECTION (1) SHA LL BE SENT TO THE APPLICANT AND TO THE COMMISSIONER. (2A) SUBJECT TO THE PROVISIONS OF SUB-SECTION (2B) THE ASSESSEE SHALL WITHIN THIRTY-FIVE DAYS OF THE RECEIPT OF A COPY OF THE ORDER UNDER SU B-SECTION (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 PROO F OF SUCH PAYMENT TO THE SETTLEMENT COMMISSION. (2B) IF THE SETTLEMENT COMMISSION IS SATISFIED ON AN APPLICATION MADE IN THIS BEHALF BY THE ASSESSEE THAT HE IS UNABLE FOR GOOD AND SUFFIC IENT 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 ASSESSE E FURNISHES ADEQUATE SECURITY FOR THE PAYMENT THEREOF. (2C) WHERE THE ADDITIONAL AMOUNT OF INCOME-TAX IS N OT PAID WITHIN THE TIME SPECIFIED UNDER SUB-SECTION (2A) THEN WHETHER OR NOT THE SE TTLEMENT COMMISSION HAS EXTENDED THE TIME FOR PAYMENT OF THE AMOUNT WHICH REMAINS UN PAID 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 T HE AMOUNT REMAINING UNPAID FROM THE DATE OF EXPIRY OF THE PERIOD OF THIRTY-FIVE DAYS RE FERRED TO IN SUB-SECTION (2A). (2D) WHERE THE ADDITIONAL AMOUNT OF INCOME-TAX REFE RRED TO IN SUB-SECTION (2A) IS NOT PAID BY THE ASSESSEE WITHIN THE TIME SPECIFIED UNDE R THAT SUB-SECTION OR EXTENDED UNDER SUB-SECTION (2B) AS THE CASE MAY BE THE SET TLEMENT COMMISSION MAY DIRECT THAT THE AMOUNT OF INCOME-TAX REMAINING UNPAID TOG ETHER WITH ANY INTEREST PAYABLE THEREON UNDER SUB-SECTION (2C) BE RECOVERED AND AN Y PENALTY FOR DEFAULT IN MAKING PAYMENT OF SUCH ADDITIONAL AMOUNT MAY BE IMPOSED AN D RECOVERED IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII BY THE ASSESSING OF FICER HAVING JURISDICTION OVER THE ASSESSEE. (3) WHERE AN APPLICATION IS ALLOWED TO BE PROCEEDED WITH UNDER SUB-SECTION (1) THE SETTLEMENT COMMISSION MAY CALL FOR THE RELEVANT REC ORDS FROM THE COMMISSIONER AND AFTER EXAMINATION OF SUCH RECORDS IF THE SETTLEMEN T 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 FURTH ER ENQUIRY OR INVESTIGATION AND IT(SS) NO.29-31-2011 9 FURNISH A REPORT ON THE MATTERS COVERED BY THE APPL ICATION 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 COM MISSIONER RECEIVED UNDER SUB-SECTION (3) AND AFTER GIVING AN OPPORTUNITY TO THE APPLICA NT 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 PLA CED BEFORE IT OR OBTAINED BY IT THE SETTLEMENT COMMISSION MAY IN ACCORDANCE WITH THE P ROVISIONS OF THIS ACT PASS SUCH ORDER AS IT THINKS FIT ON THE MATTERS COVERED BY TH E 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). (4A) IN EVERY APPLICATION ALLOWED TO BE PROCEEDED W ITH UNDER SUB-SECTION (1) THE SETTLEMENT COMMISSION SHALL WHERE IT IS POSSIBLE PASS AN ORDER UNDER SUB-SECTION (4) WITHIN A PERIOD OF FOUR YEARS FROM THE END OF THE F INANCIAL YEAR IN WHICH SUCH APPLICATION WAS ALLOWED TO BE PROCEEDED WITH. (5) SUBJECT TO THE PROVISIONS OF SECTION 245BA THE MATERIALS BROUGHT ON RECORD BEFORE THE SETTLEMENT COMMISSION SHALL BE CONSIDERED BY TH E 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 A PPLY. (6) EVERY ORDER PASSED UNDER SUB-SECTION (4) SHALL PROVIDE FOR THE TERMS OF SETTLEMENT INCLUDING ANY DEMAND BY WAY OF TAX PENALTY OR INTE REST THE MANNER IN WHICH ANY SUM DUE UNDER THE SETTLEMENT SHALL BE PAID AND ALL OTHE R MATTERS TO MAKE THE SETTLEMENT EFFECTIVE AND SHALL ALSO PROVIDE THAT THE SETTLEMEN T SHALL BE VOID IF IT IS SUBSEQUENTLY FOUND BY THE SETTLEMENT COMMISSION THAT IT HAS BEEN OBTAINED BY FRAUD OR MISREPRESENTATION OF FACTS. (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 RECE IPT 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 INSTALME NTS 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 DAY S AFORESAID. (7) WHERE A SETTLEMENT BECOMES VOID AS PROVIDED UND ER 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 APPLI CATION WAS ALLOWED TO BE PROCEEDED WITH BY THE SETTLEMENT COMMISSION AND THE INCOME-TA X AUTHORITY CONCERNED MAY NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PRO VISION OF THE ACT COMPLETE SUCH PROCEEDINGS AT ANY TIME BEFORE THE EXPIRY OF TWO YE ARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE SETTLEMENT BECAME VOID. (8) FOR THE REMOVAL OF DOUBTS IT IS HEREBY DECLARE D THAT NOTHING CONTAINED IN SECTION 153 SHALL APPLY TO ANY ORDER PASSED UNDER SUB-SECTI ON (4) OR TO ANY ORDER OF ASSESSMENT RE-ASSESSMENT OR RE-COMPUTATION REQUIRE D TO BE MADE BY THE ASSESSING OFFICER IN PURSUANCE OF ANY DIRECTIONS CONTAINED IN SUCH ORDER PASSED BY THE SETTLEMENT COMMISSION 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. IT(SS) NO.29-31-2011 10 7.1 AS IS APPARENT FROM THE AFORESAID PROVISIONS THE PROCEDURE LAID DOWN IN SECTION 245D OF THE ACT ENVISAGES THAT ON RECEIPT OF THE A PPLICATION UNDER SECTION 245C(1) OF THE ACT THE SETTLEMENT COMMISSION IS REQUIRED TO F ORWARD A COPY OF THE APPLICATION FILED IN THE PRESCRIBED FORM (NO. 34B) CONTAINING FULL D ETAILS OF ISSUES FOR WHICH APPLICATION FOR SETTLEMENT IS MADE THE NATURE AND CIRCUMSTANCE S OF THE CASE AND COMPLEXITIES OF THE INVESTIGATION INVOLVED EXCEPT THE ANNEXURES R EFERRED TO IN ITEM NO. 11 OF THE FORM AND TO CALL FOR A REPORT FROM THE CIT WITHIN A PER IOD OF 45 DAYS FROM THE DATE OF COMMUNICATION BY THE SETTLEMENT COMMISSION. THEREAF TER THE SETTLEMENT COMMISSION ON THE BASIS OF THE SAID REPORT AND HAV ING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND/OR COMPLEXITY OF THE INVESTIGATION INVOLVED THEREIN MAY BY AN ORDER ALLOW THE APPLICATION TO BE PROCEEDED WITH OR REJECT THE APPLICATION. AFTER ORDER U/S 245D(1) IS MADE BY THE SETTLEMENT COMMISS ION RULE 8 OF THE 1987 RULES MANDATES THAT A COPY OF THE ANNEXURE TO THE APPLICA TION TOGETHER WITH A COPY OF EACH OF THE STATEMENTS AND OTHER DOCUMENTS ACCOMPANYING SUCH ANNEXURE SHALL BE FORWARDED TO THE CIT AND FURTHER REPORT SHALL BE CA LLED FROM THE CIT. THE SETTLEMENT COMMISSION IS ALSO EMPOWERED TO DIRECT THE CIT TO MAKE FURTHER ENQUIRY AND INVESTIGATIONS IN THE MATTER AND FURNISH HIS REPORT . THEREAFTER AFTER EXAMINING THE RECORD CITS REPORT AND SUCH FURTHER EVIDENCE THAT MAY BE LAID BEFORE IT OR OBTAINED BY IT THE SETTLEMENT COMMISSION IS REQUIRED TO PASS A N ORDER AS IT THINKS FIT ON THE MATTER COVERED BY THE APPLICATION AND IN EVERY MATTER RELA TING TO THE CASE NOT COVERED BY THE APPLICATION AND REFERRED TO IN THE REPORT OF THE CI T UNDER SUB-SECTION (1) OR SUB-SECTION (3) OF THE SAID SECTION. THUS EVEN WHEN THE SETTLE MENT COMMISSION DECIDES TO PROCEED WITH THE APPLICATION IT IS NOT DENUDED OF ITS POWER TO EXAMINE AS TO WHETHER IN HIS APPLICATION U/S 245C(1) OF THE ACT THE ASSESSE E MADE A FULL AND TRUE DISCLOSURE OF HIS UNDISCLOSED INCOME AND THE REPORT(S) OF THE CIT AND OTHER DOCUMENTS COMING ON RECORD AT DIFFERENT STAGES OF THE CONSIDERATION OF THE CASE BEFORE OR AFTER THE SETTLEMENT COMMISSION HAS DECIDED TO PROCEED WITH T HE APPLICATION ARE MOST GERMANE TO DETERMINATION OF THE SAID QUESTION. A 'FULL AND TRUE' DISCLOSURE OF INCOME WHICH HAD NOT BEEN PREVIOUSLY DISCLOSED BY THE ASSESSEE BEIN G A PRE-CONDITION FOR A VALID APPLICATION UNDER SECTION 245C(1) OF THE ACT THE S CHEME OF CHAPTER XIX-A DOES NOT CONTEMPLATE REVISION OF THE INCOME SO DISCLOSED IN THE APPLICATION AGAINST ITEM NO. 11 OF THE FORM. MOREOVER IF AN ASSESSEE IS PERMITTED TO REVISE HIS DISCLOSURE IN ESSENCE HE WOULD BE MAKING A FRESH APPLICATION IN RELATION TO THE SAME CASE BY WITHDRAWING THE EARLIER APPLICATION. IN THIS REGARD SECTION 245C(3 ) OF THE ACT WHICH PROHIBITS THE IT(SS) NO.29-31-2011 11 WITHDRAWAL OF AN APPLICATION ONCE MADE UNDER SUB-SECTION (1) OF THE SAID SECTION IS INSTRUCTIVE IN AS MUCH AS IT MANIFESTS THAT AN A SSESSEE CANNOT BE PERMITTED TO RESILE FROM HIS STAND AT ANY STAGE DURING THE PROCEEDINGS. IN NUTSHELL IN THE SCHEME OF CHAPTER XIX-A THERE IS NO STIPULATION FOR REVISION OF AN APPLICATION FILED UNDER SECTION 245C(1) OF THE ACT AND THUS THE NATURAL COROLLARY IS THAT DETERMINATION OF INCOME BY THE SETTLEMENT COMMISSION HAS NECESSARILY TO BE WITH RE FERENCE TO THE INCOME DISCLOSED IN THE APPLICATION FILED UNDER THE SAID SECTION IN THE PRESCRIBED FORM. MOREOVER SUB- SECTION(5) OF SEC. 245D MANDATES THAT THE MATERIALS BROUGHT ON RECORD BEFORE THE SETTLEMENT COMMISSION SHALL BE 'CONSIDERED' BY THE MEMBERS BEFORE PASSING ANY FINAL ORDER UNDER SUB-SECTION (4). THE WORD 'CONSIDERATIO N' MEANS AN INDEPENDENT EXAMINATION OF THE EVIDENCE AND MATERIALS BROUGHT O N RECORD BEFORE THE ITSC BY THE MEMBERS AND APPLICATION OF MIND THERETO WITH A VIEW TO INDEPENDENTLY ASSESS THE MATERIALS AND EVIDENCE WHETHER ADDUCED BY THE ASSE SSEE-APPLICANT OR BY THE CIT AND COME TO A CONCLUSION BY THEMSELVES. HERE WE MAY PO INT OUT THAT THE HONBLE APEX COURT IN AJMERA HOUSING CORPORATION VS. CIT 193 TAX MAN193(SC) HELD THAT IN THE SCHEME OF CHAPTER XIX-A THERE IS NO STIPULATION FO R REVISION OF AN APPLICATION FILED UNDER SECTION 245C(1) OF THE ACT . 7.2 AS IS EVIDENT FROM THE AFORESAID PROCEDURE LAID DOWN U/S 245D OF THE ACT ONCE THE APPLICATION IS ADMITTED THE ASSESSEE IS REQUIR ED TO PAY THE ADDITIONAL DEMAND ON THE BASIS OF INCOME DISCLOSED IN THE APPLICATION WI THIN 35 DAYS OF THE ORDER OF THE COMMISSION U/S 245D(1) AND IN CASE THE DEMAND IS NO T PAID WITHIN THE TIME ALLOWED INTEREST AT PRESCRIBED RATE IS CHARGEABLE UNDER 245 D(2C). THERE IS NO MATERIAL BEFORE US NOR THERE IS ANYTHING TO SUGGEST THAT IN THE OR DER OF THE SETTLEMENT COMMISSION THAT THE ASSESSEE DID NOT COMPLY WITH AFORESAID ORDER U/ S 245D(1) OF THE ACT. SIMILARLY WHEN THE SETTLEMENT COMMISSION PASSES FINAL ORDER U NDER SECTION 245D(4) OF THE ACT THE TAX PAYABLE IN PURSUANCE OF SUCH AN ORDER IS RE QUIRED TO BE PAID BY THE ASSESSEE WITHIN 35 DAYS OF THE RECEIPT OF COPY OF THE ORDER AND FOR FAILURE TO DO SO THE ASSESSEE IS LIABLE TO PAY INTEREST AT THE PRESCRIBED RATE UN DER SECTION 245D(6A). THUS THE INTEREST PAYABLE UNDER SECTIONS 245D(2C) AND 245D(6) ARE IN DIFFERENT CONTEXTS AND ARE LEVIED INDEPENDENTLY. IN THE INSTANT CASE THE LD. CIT(A) AFTER ANALYZING THE PROCEDURE LAID DOWN UNDER THE PROVISIONS OF SEC. 245D OF THE ACT CONCLUDED THAT THERE BEING NO SCOPE FOR REVISING AN APPLICATION MADE UNDER SECTIO N 245C OF THE ACT CHARGING OF INTEREST U/S 245D(2C) OF THE ACT ON THE PREMISE THAT THE APPLICANT REVISED THE ORI GINAL APPLICATION IS AGAINST THE LETTER AND SPIRIT OF THE PROVISIONS CO NTAINED IN S. 245C(1) & 245D OF THE ACT. THE LD. CIT(A) ALSO CONCLUDED THAT THE PROCESS OF SETTLEMENT IS THE IT(SS) NO.29-31-2011 12 OUTCOME OF DETAILED SUBMISSION AND ARGUMENTS FROM B OTH SIDES AND ACCORDINGLY THE ADDITIONAL INCOME WAS FINALLY ESTIMATED @ 6% OF THE UNDISCLOSED SALES AND CONSEQUENTLY THERE IS NO CASE FOR CHARGING OF INTE REST U/S 245D (2C) NOR THERE IS ANY SUCH DIRECTION OF THE SETTLEMENT COMMISSION. AS POINTED OUT EARLIER THE HONBLE APEX COURT IN AJMERA HOUSING CORPORATION (SUPRA) HE LD THAT IN THE SCHEME OF CHAPTER XIX-A THERE IS NO STIPULATION FOR REVISION OF AN A PPLICATION FILED UNDER SECTION 245C(1) OF THE ACT . THUS THE DETERMINATION OF INCOME BY THE SETTLEMENT COMMISSION IS NECESSARILY WITH REFERENCE TO THE INCOME DISCLOSED IN THE APPLICATION FILED UNDER THE SAID SECTION IN THE PRESCRIBED FORM. MOREOVER IN T ERMS OF PROVISIONS OF SEC.245I OF THE ACT EVERY ORDER OF SETTLEMENT PASSED UNDER SUB-SEC TION (4) OF SECTION 245D IS CONCLUSIVE AS TO THE MATTERS STATED THEREIN AND NO MATTER COVERED BY SUCH ORDER SAVE AS OTHERWISE PROVIDED IN THE CHAPTER XIXA CAN BE R EOPENED IN ANY PROCEEDING UNDER THIS ACT OR UNDER ANY OTHER LAW FOR THE TIME BEING IN FORCE. IN VIEW OF THE FOREGOING ESPECIALLY WHEN THE REVENUE DID NOT PLACE ANY MAT ERIAL BEFORE US CONTROVERTING THE AFORESAID FINDINGS OF THE LD. CIT(A)NOR REFERRED US TO ANY CONTRARY DECISION SO AS TO ENABLE US TO TAKE A DIFFERENT VIEW IN THE MATTER W E ARE NOT INCLINED TO INTERFERE. THEREFORE GROUND NOS.1 & 2 IN THE APPEAL ARE DISMI SSED. . 8. GROUND NO.3 IN THESE FOUR APPEALS OF THE RE VENUE BEING GENERAL IN NATURE NOR ANY SUBMISSIONS HAVING BEEN MADE BEFORE US ON THIS GROUND DOES NOT REQUIRE ANY SEPARATE ADJUDICATION WHILE NO ADDITIONAL GROUND HA VING BEEN RAISED BEFORE US IN TERMS RESIDUARY GROUND NO.4 IN THESE APPEALS ACCORDINGL Y ALL THESE GROUNDS ARE DISMISSED. 9. NO OTHER ARGUMENT OR SUBMISSION WAS MADE BEFORE US. 10. IN THE RESULT THESE FOUR APPEALS ARE DISMISSE D. ORDER PRONOUNCED IN OPEN COURT SD/- SD/- (C.M. GARG) (A.N. PAHUJA) JUDICIAL MEMBER ACCOUNTANT MEMBER NS COPY OF THE ORDER FORWARDED TO :- 1. ASSESSEES CONCERNED. 2 ACIT CIRCLE-1 ROOM NO.322 3 RD FLOOR NRA CENTRE JHANDEWALAN EXTN. IT(SS) NO.29-31-2011 13 NEW DELHI 3. CIT CONCERNED. 4. CIT(APPEALS)-III DELHI 5. DR ITAT H BENCH NEW DELHI 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITA T DELHI