The Income Tax Settlement Commission (ITSC) is a quasi-judicial body set up under the Income Tax Act. The objective of setting up of ITSC is to settle the tax liabilities in complicated cases, avoiding endless and prolonged litigation. The taxpayer can approach the ITSC during the pendency of assessment proceedings, subject to certain prescribed conditions. For making an application before the ITSC, the tax and interest on additional income disclosed before the ITSC has to be paid. The order passed by the ITSC is conclusive and no appeal to any authority can be made against the order.
Chapter XIX – A of Income Tax Act, 1961 provides for settlement of cases. Income Tax Settlement Commission (herein after referred to as ITSC) was set up in the year 1976 on the recommendation of Direct Tax Enquiry Committee headed by former Chief Justice of India, Shri K. N. Wanchoo. The purpose, intent and necessity of Settlement Commission is revealed by recommendation in para 2.32 to 2.34 of Chapter of the report:
“2.32 This, however, does not mean that the door for compromise with the errant tax payer should forever remain closed. In the administration of fiscal laws, whose primary objective is to raise revenue, there has to be room for compromise and settlement. A rigid attitude would not only inhibit a onetime tax evader or an un intending defaulter from making a clear breast of his affairs, but would also unnecessarily strain the investigational resources of the department in cases of doubtful benefit to revenue, while needlessly proliferating litigation and holding up collections. We would, therefore, suggest that there should be a provision in the law for a settlement with the taxpayer at any stage of the proceedings. In the United Kingdom, the confession method has been in vogue since 1923. In the U. S. law also, there is a provision for compromise with the taxpayer as to his tax liabilities. A provision of this type facilitating settlement in individual cases will have this advantage over general disclosure scheme that misuse thereof will be difficult and the disclosure will not normally breed further tax evasion. Each individual case can be considered on its merits and full disclosures not only of the income but of the modus operandi of its build up can be insisted on thus sealing off chances of continued evasion through similar practice.
2.33 To ensure that the Settlement is fair, prompt and independent, we would suggest that there should be a high level machinery for administering the provisions, which would also incidentally relieve the field officer of an onerous responsibility and risk of having to face adverse criticism which, we are told, has been responsible for the slow rate of disposal of disclosure petitions.”
Unique features of Income Tax Settlement Commission characterizing its role and responsibility are as follows:
The Income Tax Settlement Commission has certain unique features, such as:
Advantages for the Applicant:
Advantages for the Department:
The Settlement Commission is a platform to avoid never ending litigation.
‘Peak Credit Theory’,
‘Real Income Theory
The door for compromise should not be closed for an errant taxpayer permanently.
Objectives of the Income Tax Settlement Commission
The Commission was constituted in the year 1976 as per the recommendations of the Direct Taxes Enquiry Committee (Wanchoo Committee) as an alternative dispute resolution mechanism with the following objectives:
Benefits of the Settlement Commission
The main benefits of the Settlement Commission to both Government and the assessee are :-
(i) Department to get over long and continued litigation in complicated cases with doubtful benefit to revenue.
(ii) Final Settlement for settling liabilities across the board in complicated cases with doubtful benefit to Revenue, avoiding endless and prolonged litigation and subsequent strain on investigational resources of the Department.
(iii) Provided its disclosure was “full and true”, the assessee had a forum wherein complicated matters could be decided by one forum.
(iv) Time consuming litigation in the regular appellate procedure was avoided by the Department and the assessee.
(v)Provided its disclosure was full and true, benefits of waiver of penalties and prosecution are available to the assessee.
(vi) Confidentiality of the assessee’s disclosure is maintained, as the same could be used only in the Settlement Commission except as provided in Section 245HA(3) of the Act.
T0us, the best highlighting features of Settlement Commission are (a) To pass the Settlement order within 18 months of filling of the application (b) It has wide power of granting immunity from penalty and prosecution, which are major sources of litigation (c) The orders passed by the Commission are final and conclusive.
Income Tax Settlement Commission is not the part of the Income Tax Department
The Income Tax Settlement Commission is an independent quasi-judicial authority. It is an attached office of the Department of Revenue, only for its administrative matters.
Changes since inception
1. Many changes over the fourty four years of existence.
(a) Veto Power of CIT withdrawn
(b) Payment of tax after admission changed
(c) Time limit for final order set
2. Major changes by Finance Act 2007
(a) All old cases pending on 01.04.2008 – back to Income Tax Department – i.e. Abate
(b) New cases-One year time limit for final disposal
(c) Tax payment on income disclosed along with application
(d) Following types of cases excluded from the purview of the Commission
(i) search cases,
(ii) matter pending at levels above Assessing Officer,
(iii) re-opened matter before Assessing Officer
3. Changes by Finance Act, 2010
(i) Big search cases brought back
(ii) Time limit for final order increased to 18 months
(iii) Search cases can come only after issue of notice under section 153A or 153C
Chapter XIX-A of the Act providing for settlement of cases is a machinery provision
In S.P.A.M. RFA (OS) 2347/2008 Page 7 Krishnan Chettiar and Son v. Income Tax Settlement Commission and Another, (1993) 202 ITR 81 (Mad.), a Division Bench of the Madras High Court ruled that Chapter XIX-A of the Act providing for settlement of cases is a machinery provision; the following observations are relevant: –
“Chapter XIX-A in the Act, introduced by the Taxation Laws (Amendment) Act, 1975, was the result of implementing the recommendations of the Wanchoo Committee to arrest the evil of black money and large scale tax evasion. One of the recommendations made was a compromise measure by which a disclosure could be made and the quantum of tax is determined and the assessee not only secured quittance for himself, but also freedom from levy of penalty and prosecution. The machinery, initially conceived of by the Wanchoo Committee to achieve this, was a Tribunal, though, later, it was rechristened the Settlement Commission with full powers to investigate, quantify the amount of tax, penalty as well as interest, etc., and grant immunity from prosecution at its discretion. The details of the application, probe, consideration, hearing and disposal, found in the report, had been incorporated in the statutory provisions in Chapter XIX-A. Thus, a careful study of the anatomy of Chapter XIX-A clearly brings out that it was only in the nature of machinery provisions for the purpose of settlement of tax disputes between the assessee and the Revenue. The provisions do not compel any assessee to resort to section 245C, but that can be availed of, if the assessee so chooses. In other words, the remedy provided under section 245C, as a machinery provision for effecting settlement of tax disputes, was only in the nature of a concession or option open to the assessee who desired to settle his tax matters.” – [Krishnan Chettiar and Son v. Income Tax Settlement Commission and Another (1993) 202 ITR 81 (Mad.)]
It is a settled rule of construction that tax laws, like all other laws, shall be interpreted reasonably and in consonance with justice so as to avoid an absurd consequence that may lead to mischief or abuse: (Hegde, J., in Jodha Mal Kuthiala v. CIT (1971) 82 ITR 570 (SC). A machinery provision in the Income Tax Act cannot be subjected to the literal or strict rule of construction that is adopted to interpret a charging section. In Calcutta Jute Manufacturing Co. v. CTO, (AIR 1997 SC 2920), the Supreme Court held that a machinery provision must be so interpreted as to effectuate its purpose, and the distinction between a charging section and a machinery provision whose function is to effectuate the charge, was pointed out in the context of the rule of interpretation to be adopted.
Powers of Settlement Commission
Role of Income Tax Department
First Stage – Prima facie Decision
Second Stage – Order to decide Validity
Third Stage – 245 D (3) Report – Enquiry
— Rule 9 Report from CIT
Fourth Stage – Final Order
– Within 18 months from the Filing of Application (12 months for applications upto 31.05.2010)
Challenging the order of Settlement Commission – It can be challenged in court of law by filling a writ petition only when :
Similar forums abroad
Settlement is a concept that works and has worked well in other countries too for example the Hansard procedure of confession in the UK IRS and the Compromise Procedure of the US IRS.
|Principal Bench, Delhi||Additional Bench. I, New Delhi||Additional Bench. I, New Delhi|
|DESIG NATION||TEL. NO.||DESIG NATION||TEL. NO.||DESIG NATION||TEL. NO.|
|Chairman||24694049||Vice Cha irman||24694049||Vice Chair man||2462 9402(O)|
|DIT (Inv.)||24698411(O)||DIT (Inv.)||24629 406(O)||DIT (Inv.)||24629 406(O)|
|Addl. DIT (Inv.)||24693319(O)||Addl. DIT (Inv.)||24698 671(O)||Addl. DIT (Inv.)||2469 8671(O)|
|CIT (DR)||24621761(O)||CIT (DR)||24621 761(O)||CIT (DR)||2464 0964(O)|
|Additional Bench. I, Mumbai||Additional Bench. II, Mumbai|
|DESIGNATION||TEL. NO.||DESIGNATION||TEL. NO.|
|Vice Chairman||Vice Chairman||23516592(F)|
|Addl. DIT (Inv.) – 1(1)||23537230(O)||CIT (DR)||23533701(O)|
|Addl. DIT (Inv.) – 1(2)||23543526(O)||Addl. DIT (Inv.) – 2(1)||23548815(O)|
Kolkata & Chennai
|Additional Bench, Kolkata||Additional Bench, Chennai|
|DESIGNATION||TEL. NO.||DESIGNATION||TEL. NO.|
|Vice Chairman||22659677 (O)||Vice Chairman||24348031(O)|
Settlement Commission Address —
(1) Delhi – Principal Branch
4th Floor, Lok Nayak Bhavan, New Delhi-110 003
EPBAX : 011-24690693, 011-24622608, 011-24622764
(2) Chennai Bench:
640- Anna Salai Satguru Complex, Chennai.-600035
Tele/Fax – 044-24344404
(3) Kolkata Bench
10-C, Middleton Road, 2nd Floor, Kolkata – 700071
Tel.: 033-22659677; FAX . 033-22658756
(4) Mumbai Bench
Mahalaxmi Chamber, S.K. Rathod Marg, Mahalaxmi, Mumbai-400034
Tel. 022-23549503; FAX. 022-23549504
Sections dealing with Settlement Commission
SETTLEMENT OF CASES
|(ii)||245B||Income-tax Settlement Commission.|
|(iii)||245BA||Jurisdiction and powers of Settlement Commission.|
|(iv)||245BB||Vice-Chairman to act as Chairman or to discharge his functions in certain circumstances.|
|(v)||245BC||Power of Chairman to transfer cases from one Bench to another.|
|(vi)||245BD||Decision to be by majority.|
|(vii)||245C||Application for settlement of cases.|
|(viii)||245D||Procedure on receipt of an application under section 245C.|
|(ix)||245DD||Power of Settlement Commission to order provisional attachment to protect revenue.|
|(x)||245E||Power of Settlement Commission to reopen completed proceedings.|
|(xi)||245F||Powers and procedure of Settlement Commission.|
|(xii)||245G||Inspection, etc., of reports.|
|(xiii)||245H||Power of Settlement Commission to grant immunity from prosecution and penalty.|
|(xiv)||245HA||Abatement of proceeding before Settlement Commission.|
|(xv)||245HAA||Credit for tax paid in case of abatement of proceedings.|
|(xvi)||245I||Order of Settlement to be conclusive|
|(xvii)||245J||Recovery of sums due under order of settlement.|
|(xviii)||245K||Bar on subsequent application for settlement.|
|(xix)||245L||Proceedings before Settlement Commission to be judicial proceedings.|
|(xx)||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, with effect from 01.06.1987]
Rules dealing with Settlement Commission
SETTLEMENT OF CASES
|(i)||44C||Form of application for settlement of case [and intimation to the Assessing Officer|
|(ii)||44CA||Disclosure of information in the application for settlement of cases.|
|(iii)||44D||Fee for furnishing copy of report.|
Period of Limitation
|S. No.||Section||Nature of compliance||Limitation of time|
|(i)||245C(1)||Application for settlement of case to Settlement Commission||At any stage of case (with effect from 01.07.2007 at any stage during the pendency of a case before the Assessing Officer)|
|(ii)||245(1E)||Application for settlement before Settlement Commission under sub-section (1) where books of account, documents etc., have been seized.||Not before 120 days of seizure|
|(iii)||245D(1)||Rejecting/allowing the application for settlement||Within 7 days, notice shall be issued to the applicant to justify admission of his application; within 14 days from the receipt of application, the order pertaining to rejecting/allowing the application shall be made|
|(iv)||245D(2B)||Calling report by the Settlement Commission from Principal Commissioner/ Commissioner||Within 30 days from the date of receipt of application|
|(v)||245(2B)||Submission of report by the Principal Commissioner/ Commissioner to Settlement Commission||Within 30 days from the date of communication from the Settlement Commission|
|(vi)||245(2C)||Declaring application as invalid by the Settlement Commission||Within 15 days from the date of receipt of report from the Principal Commissioner/Commissioner|
|(vii)||245D(3)||Furnishing a report by the Principal Commissioner/Commissioner to the Settlement Commission in the matters covered by the application||Within 90 days from the date of receipt of communication from the Settlement Commission|
|(viii)||245(4A)||Passing order of settlement||Within 18 months from the end of the month in which the application was made, if application is made on or after 01.06.2010|
|(ix)||245(6B)||Passing of order by the Settlement Commission to amend an order passed by it in order to rectify any mistake apparent from records.||(a) Within 6 months from end of the month in which order was passed; or
(b) Within 6 months from end of the month in which an application for rectification has been made by the Principal Commissioner or the Commissioner or the applicant, as the case may be.
No application for rectification shall be made by the Principal Commissioner or the Commissioner or the applicant after the expiry of 6 months from the end of the month in which an order is passed by the Settlement Commission
|(x)||245D(7)||Completion of proceedings where settlement becomes void as provided in section 245D(6)||Within 2 years from the end of the financial year in which the settlement becomes void|
|Reopening of completed proceedings by Settlement Commission if an application is made before 01.06.2007||Reopening of proceeding is not possible where period between end of assessment year to which proceeding relates and the date of application for settlement under section 245C exceeds 9 years.|