( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY WRIT PETITION NO.115 OF 2004 WRIT PETITION NO.115 OF 2004 WRIT PETITION NO.115 OF 2004 (CIVIL APPELLATE JURISDICTION) (CIVIL APPELLATE JURISDICTION) (CIVIL APPELLATE JURISDICTION) Union of India Through the Commissioner of Customs, Pune, having his office at ICE House, 41-A, Sassoon Road, Opp.Wadia College, Pune- 411 001 .. Petitioners V/s M/s.Hoganas India Ltd.& Ors. Ganga Commerce, 4, Koregaon Park, North Main Road, Pune 411 001. .. Respondents. ALONGWITH ALONGWITH ALONGWITH WRIT PETITION NO.1636 OF 2004 WRIT PETITION NO.1636 OF 2004 WRIT PETITION NO.1636 OF 2004 (CIVIL APPELLATE JURISDICTION) (CIVIL APPELLATE JURISDICTION) (CIVIL APPELLATE JURISDICTION) 1. The Commissioner of Customs, Jawahar Custom House, Nhava Sheva. 2. Directorate of Revenue Intelligence, Mumbai. .. Petitioners V/s 1. M/s.Sprint Services Pvt.ltd. Gala G, Maranbasri Industrial Estate Govandi Station Road, Deonar, Mumbai-88. 2. Sanjay Agarwal, Director of M/s. Sprint Services Pvt.Ltd. .. Respondents WITH WITH WITH WRIT PETITION NO.9995 OF 2004 WRIT PETITION NO.9995 OF 2004 WRIT PETITION NO.9995 OF 2004 (CIVIL APPELLATE JURISDICTION) (CIVIL APPELLATE JURISDICTION) (CIVIL APPELLATE JURISDICTION) 1. The Commissioner of Customs New Custom House, Central Revenue Building, The Mall, Amritsar - 143 001. 2. Directorate of Revenue Intelligence .. Petitioners V/s 1. M/s.Sprint Services Pvt.Ltd. Gala G.Maranbasri Industrial Estate, Govandi Station Road, Deonar, Mumbai - 88. 2. Sanjay Agarwal, Director of ( 2 ) M/s.Sprint Services Pvt.Ltd. .. Respondents WITH WITH WITH WRIT PETITION NO.4381 OF 2005 WRIT PETITION NO.4381 OF 2005 WRIT PETITION NO.4381 OF 2005 (CIVIL APPELLATE JURISDICTION) (CIVIL APPELLATE JURISDICTION) (CIVIL APPELLATE JURISDICTION) Tata Teleservices (Maharashtra) Ltd. (formerly known as Hughes Telecom India) Ltd., a public limited Company having its office at Ispat House, B.G.Kher Marg, Worli, Mumbai 400 018 .. Petitioners V/s 1. The Union of India Aayakar Bhavan, M.K.Road, Churchgate, Mumbai 400 020. 2. The Commissioner of Customs, Air Cargo Complex, Sahar Airport Mumbai 400 099. 3. The Commissioner of Customs, JNPT, Nhava Sheva, Post Uran, Dist - Raigad, Maharashtra 400 707. 4. Directorate of Revenue Intelligence 3rd/4th Floor, Hotel Wadrobe Bldg., 16, Arthur Bunder Road, Colaba Mumbai 400 005. 5. The Settlement Commission Customs & Central Excise, Utpad Shulk Bhavan, Bandra-Kurla Complex Bandra (East) Mumbai - 400 051. .. Respondents WITH WITH WITH WRIT PETITION NO.671 OF 2005 WRIT PETITION NO.671 OF 2005 WRIT PETITION NO.671 OF 2005 (CRIMINAL APPELLATE JURISDICTION) (CRIMINAL APPELLATE JURISDICTION) (CRIMINAL APPELLATE JURISDICTION) M/s.Sun Traders Through its proprietor Sandeep Singhania, 19, Malad Co-op.Hsg.society, Poddar Park, Malad (East) Mumbai 400 097. .. Petitioner V/s 1. Union of India Central Govt.Advocates 2nd Floor, Aayakar Bhavan Annexe New Marine Lines, Mumbai. 2. Commissioner of Customs (I) ACC, Sahar Mumbai. ( 3 ) 3. The Administrative Officer, Settlement Commission of Customs & Central Excise, Utpad Shulk Bhavan, Bandra Kurla Complex, Bandra (E), Mumbai 400 051. .. Respondents WITH WITH WITH WRIT PETITION NO.2430 OF 2004 WRIT PETITION NO.2430 OF 2004 WRIT PETITION NO.2430 OF 2004 (ORDINARY ORIGINAL CIVIL JURISDICTION) (ORDINARY ORIGINAL CIVIL JURISDICTION) (ORDINARY ORIGINAL CIVIL JURISDICTION) Manish Kalvadiya Indian Inhabitant, Resident of: 303, Prashant Complex, Sahth Lal Society, Hira Baug, Varachha Road, Surat -6. .. Petitioner V/s 1. Union of India Through the Secretary, Revenue Department, Central Govt.Advocates, 2nd Floor, Aaykar Bhawan, M.K.Road, Mumbai 400 020. 2. The Jt.Commissioner of Customs Air Intelligence Unit, C.S.Airport, Sahar, Mumbai. 3. The Settlement Commission, For Customs & Central Excise, 6th/7th Floor, Utpad Shulk Bhavan, Bandra Kurla complex, Mumbai .. Respondents WITH WITH WITH WRIT PETITION NO.1051 OF 2005 WRIT PETITION NO.1051 OF 2005 WRIT PETITION NO.1051 OF 2005 (ORDINARY ORIGINAL CIVIL JURISDICTION) (ORDINARY ORIGINAL CIVIL JURISDICTION) (ORDINARY ORIGINAL CIVIL JURISDICTION) Sanjay Balkrishna Chavan of Mumbai Indian Inhabitant, residing at Room No.1448, Building No.27, MHB Colony, Kher Nagar, Bandra (East) Mumbai 400 051. .. Petitioner V/s 1. The Union of India (through the Joint Secretary, Ministry of Law & Justice, Aayakar Bhuvan, M.K.Road, Mumbai 400 020. 2. The Commissioner of Customs CIS International Airport, having his office at Sahar, Andheri (East), Mumbai 400 099. 3. The Settlement Commissioner, ( 4 ) Additional Bench, having his office, at Utpad Shulk Bhuvan, Bandra Kurla Complex, Bandra (E), Mumbai 400 051. .. Respondents WITH WITH WITH WRIT PETITION NO.2 OF 2004 WRIT PETITION NO.2 OF 2004 WRIT PETITION NO.2 OF 2004 (ORDINARY ORIGINAL CIVIL JURISDICTION) (ORDINARY ORIGINAL CIVIL JURISDICTION) (ORDINARY ORIGINAL CIVIL JURISDICTION) Bipin H.Badani (Proprietor of M/s.Sai Impex) 26/3, 4th Cross K.V.Layout, 45h Block, Jayanagar, Bangalore 560 011. .. Petitioner V/s 1. Union of India (Through the Sr.Central Govt.Adv.) Govt.of India, Ministry of Law, Justice and C.A.Dept.of Legal Affairs, 2nd Floor, Aayakar Bhawan annexe, New Marine Lines, Mumbai 400 020. 2. Settlement Commission, Customs & Central Excise, Additional Bench, 6th Floor, Utpad Shulk Bhavan, Bandra Kurla Complex, Bandra (East), Mumbai 400 051. 3. Commissioner of Customs, Pune ICE House, 41-A, Sassoon road, Opp. Wadia College, Pune 411 001. .. Respondents WITH WITH WITH WRIT PETITION NO.507 OF 2004 WRIT PETITION NO.507 OF 2004 WRIT PETITION NO.507 OF 2004 (ORDINARY ORIGINAL CIVIL JURISDICTION) (ORDINARY ORIGINAL CIVIL JURISDICTION) (ORDINARY ORIGINAL CIVIL JURISDICTION) Union of India Through Commissioner of Customs, (Export Promotion), New Custom House, Ballard Estate, Mumbai 400 038. .. Petitioner V/s 1. M/s.Bell Granito Ceramica Ltd 506-507, Acme Plaza, Andheri Kurla Road, Andheri (East), Mumbai 400 059. 2. Settlement Commission, Customs and Central Excise, Utpad Shulk Bhavan, 7th Floor, Bandra Kurla Complex, ( 5 ) Bandra (East), Mumbai 400 051. .. Respondents WITH WITH WITH WRIT PETITION NO.2379 OF 2004 WRIT PETITION NO.2379 OF 2004 WRIT PETITION NO.2379 OF 2004 (ORDINARY ORIGINAL CIVIL JURISDICTION) (ORDINARY ORIGINAL CIVIL JURISDICTION) (ORDINARY ORIGINAL CIVIL JURISDICTION) Union of India Through Commissioner of Customs, (Exports), Air Cargo Complex, Mumbai 400 099. .. Petitioner V/s 1. M/s.Express Block and Engraving Studio Pvt.Ltd. Mustafa Bldg., Sir P.M.Road, Fort, Mumbai. 2. The Settlement Commission, Customs & Central Excise, Utpad Shulk Bhavan, 7th Floor, Bandra Kurla Complex, Bandra (East), Mumbai 400 051. .. Respondents ....... Mr.A.J.Rana, Sr.Counsel with Mr.P.S.Jetley & Mr.K.R.Chaudhary for the Petitioners, AND Mr.D.B.Shroff with Mr.Rustomjee & Ms.Arman Dalal i/by M/s.Croford Bayley & Co. for the Respondents in W.P.No.115/2004. W.P.No.115/2004. W.P.No.115/2004. Mr.A.J.Rana, Sr.Counsel with Mr.K.J.Presswala for the Petitioners AND AND AND Mr.C.Harishankar with Mr.S.N.Kantawala i/by Mr.Yogesh Rohira for the Respondents in W.P.No.1636/2004 and W.P.No.9995/2004. W.P.No.1636/2004 and W.P.No.9995/2004. W.P.No.1636/2004 and W.P.No.9995/2004. Mr.V.Shreedharan, Sr.Counsel with Mr.Prakash Shah, Mr.Jitu Motwani & Mr.Bharat Raichandani i/by M/s.PDS Legal for the Petitioners AND AND AND Mr.A.M.Sethna for the Respondents in W.P.No.4381/2005. W.P.No.4381/2005. W.P.No.4381/2005. Mr.C.Harishankar with Mr.S.N.Kantawala i/by Mr.Yogesh Rohira for the Petitioners AND AND AND Mr.Y.Shinde (Public Prosecutor) for the Respondents in Criminal Writ Criminal Writ Criminal Writ Petition No.671/2005. Petition No.671/2005. Petition No.671/2005. Mr.C.Harishankar, Sr.Counsel with Mr.S.N.Kantawala i/by Mr.Yogesh Rohira for the Petitioners AND AND AND Mr.A.J.Rana, Sr.Counsel with Mr.P.S.Jetley, Mr.H.V.Mehta, Mr.Y.S.Bhate & Mr.Y.R.Mishra for the Respondents in in in W.P.No.2430/2004 W.P.No.2430/2004 W.P.No.2430/2004. ( 6 ) Mr.Madhur Baya for the Petitioners AND AND AND Mr.A.J.Rana, Sr.Counsel with Mr.P.S.Jetley & Mr.H.V.Mehta for the Respondents in W.P.No.1051/2005. W.P.No.1051/2005. W.P.No.1051/2005. Mr.P.Balakram i/by Mr.V.M.Doiphode for the Petitioners AND AND AND Mr.A.J.Rana, Sr.Counsel with Mr.K.J.Presswala & Mr.P.S.Jetley for the Respondents in W.P.No.2/2004. W.P.No.2/2004. W.P.No.2/2004. Mr.A.J.Rana, Sr.Counsel with Mr.H.V.Mehta & Mr.P.S.Jetley for the Petitioners AND AND AND Mr.V.Shreedharan, Sr.Counsel with Mr.Prakash Shah, Mr.Jitu Motwani & Mr.Bharat Raichandani i/by M/s.PDS Legal for the Respondents in W.P.No.507/2004. W.P.No.507/2004. W.P.No.507/2004. Mr.A.J.Rana, Sr.Counsel with Mr.P.S.Jetley, Mr.S.M.Shah & Mr.Y.R.Mishra for the Petitioners AND AND AND Mr.V.Shreedharan, Sr.Counsel with Mr.Bharat Raichandani i/by M/s.PDS Legal for the Respondents in W.P.No.2379/2004. W.P.No.2379/2004. W.P.No.2379/2004. ....... CORAM CORAM CORAM: DR.S.RADHAKRISHNAN & DR.S.RADHAKRISHNAN & DR.S.RADHAKRISHNAN & J.H.BHATIA, JJ. J.H.BHATIA, JJ. J.H.BHATIA, JJ. DATE DATE DATE : 21/07/2005 21/07/2005 21/07/2005. JUDGMENT: (Per S.Radhakrishnan,J.) JUDGMENT: (Per S.Radhakrishnan,J.) JUDGMENT: (Per S.Radhakrishnan,J.) 1. In all the above ten Petitions, common issue has been raised with regard to the jurisdiction of the Settlement Commission constituted under Chapter XIV-A of the Customs Act, 1962. The Petitioners in the five Writ Petitions which have been filed by the Union of India representing the Customs Department, have sought to contend that the jurisdiction of the Settlement Commission to entertain any application under Section 127B of the Customs Act, 1962 is very limited in the sense, such an application can be entertained only in case of short levy on account of misclassification or otherwise. On the contrary, the contentions of the Petitioners in the other five Writ Petitions which have been filed by the private parties is that the ( 7 ) jurisdiction of the Settlement Commission constituted under the Customs Act is quite wider and it cannot be restricted in such a narrow manner. On this point of law, the learned Counsel appearing for the Customs Department as well as the learned Counsel appearing for private parties have made their submissions and have cited various judgments in support of their respective submissions. 2. Mr.Rana, the learned Senior Counsel appearing for the Customs Department has sought to argue in Writ Petition No.115 of 2004 on this issue. He pointed out factually in the above writ petition that the Respondents imported duty free raw material as input which was not at all used and could not be used in the manufacture of export products. The contention of the learned Counsel for the Customs Department is that the Respondents in the aforesaid Writ Petition No.115/2004 had availed of various benefits under the DEEC Scheme and evaded huge payment of duty by practicing a systematic fraud over a number of years by manipulation of records. It is also contended by Mr.Rana that the Respondent had shown higher percentage of wastage i.e.almost 12% though admittedly it was not more than 4.16%. It is also the contention of Mr.Rana, that the imported goods were actually sold in violation of the conditions of Licence. Therefore, Mr.Rana, the learned Sr.Counsel has pointed out that the seven show cause notices were issued to the Respondents under Section 111(d), 111(o), 111(m), 112, 113, 114, 114-A and 117 read with Section 28 of the Customs Act. Out of the ( 8 ) seven show cause notices, admittedly, with regard to two show cause notices the amount involved was less than Rs.2 lakhs and hence the Settlement Commission had no jurisdiction to entertain the same. It is the main contention of Mr.Rana that the companies or the persons who evade the customs duty fraudulently, cannot avail of the benefit of approaching the Settlement Commission. Mr.Rana thereafter took us through the provisions of Section 127-A of the Customs Act. Section 127-A(b) defines a "case", reads as under:- "Case" means any proceeding under this Act or any other Act for the levy, assessment and collection of customs duty, or any proceeding by way of appeal or revision in connection with such levy, assessment or collection, which may be pending before a proper officer or the Central Government on the date on which an application under sub-section (1) of Section 127B is made." 3. Mr.Rana also brought to our notice the main provision contained in Section 127B, whereby an application for settlement of cases is made to the Settlement Commission. Section 127-B reads as under:- 127B. Application for settlement of cases:- (1) Any importer, exporter or any other person (hereinafter in this Chapter referred to as the applicant) may, at any stage of a case relating to him, make an application in such form and in such manner as may be specified by rules, and containing, a full and true disclosure of his duty liability which has not been disclosed before the proper officer, the manner in which such liability has been incurred, the additional amount of customs duty accepted to be payable by him and such other particulars as may be specified by rules including the particulars of such dutiable goods in respect of which he admits short levy on account of misclassification or optherwise of goods, to the Settlement Commission to have the case settled and such application shall be disposed of in the manner ( 9 ) hereinafter provided: provided that no such application shall be made unless- (a) The applicant has filed a bill of entry, or a shipping bill, in respect of import or export of goods, [as the case may be, and in relation to such bill of entry or shipping bill], a show cause notice has been issued to him by the proper officer; (b) the additional amount of duty accepted by the applicant in his application exceeds two lakh rupees: Provided further that no application shall be entertained by the Settlement Commission under this sub-section in cases which are pending in the Appellate Tribunal or any Court: Provided also that no application under this sub-section shall be made in relation to goods to which section 123 applies or to goods in relation to which any offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), has been committed: Provided also that no application under this sub-section shall be made for the interpretation of the classification of the goods under the Customs Tariff Act, 1975 (51 of 1975). (2) Where any dutiable goods, books of account, other documents or any sale proceeds of the goods have been seized under section 110, the applicant shall not be entitled to make an application under sub-section (1) before the expiry of one hundred and eighty days from the date of the seizure. (3) Every application made under sub-section (1) shall be accompanied by such fees as may be specified by rules. (4) An application made under sub-section (1) shall not be allowed to be withdrawn by the applicant. 4. Mr.Rana, the learned Counsel for the Customs Department has contended that the application under Section 127B of the said Act can only be made if the Applicant has filed a Bill of Entry with regard to the import of goods (shipping bill in respect of export) and a show cause notice has been issued to him by the proper officer in relation to such a Bill of Entry. Unless these two essential conditions viz. filing of Bill of ( 10 ) Entry as well as issuance of show cause notice, are fulfilled, no party can approach the Settlement Commission. Mr.Rana contended that the word "case" has been defined under Section 127-A(b). He emphasised that, reading the requirement that there should be a "case", a show cause notice referred to therein, would mean a show cause notice under Section 28 of the Customs Act for short levy where there has been no collusion, willful misstatement or suppression of facts except regarding misclassification. Mr.Rana contended that only in case case of short levy such a show cause notice can be issued and there should be no suppression of facts except regarding the misclassification. To put in other words, Mr.Rana contended that in case of mis-diclaration or fraud or any other ground, a party cannot approach the Settlement Commission as the same would not amount to short levy or mis-classification. According to Mr.Rana, in the instant case, the Petitioners had adopted a modus operendi of importing raw material which was not at all used by the petitioners for a long period and the petitioners had willfully evaded payment of duty and when the investigation was started and the show cause notices were issued, the petitioners had approached the Settlement Commission, which the learned Counsel Mr.Rana states, should not be allowed. Mr.Rana states that the jurisdiction of the Settlement Commission is only with regard to the genuine cases of mis-classification either done willfully or otherwise. Therefore, the contention of Mr.Rana is that the jurisdiction of the Settlement Commission is confined only to levy, assessment and ( 11 ) collection of duty and in the case of mis-classification or otherwise which has resulted in short levy. However, accordingly to Mr.Rana, in case of fraud or mis-declaration or suppression of facts, the remedy of approaching the Settlement Commission under Section 127B is not permissible. In that behalf, Mr.Rana referred to Statement of Objects at the time when the said Chapter XIV-A of the Customs Act was brought in by the amended Act 21 of 1998 which came into force from 1st August 1998. In the said statement of objects annexed to the Bill it is mentioned clearly that the Government has decided to provide Chapter XIV-A in the Customs Act to provide setting up of the Customs and Central Excise Settlement Commissions on the lines of a similar Commission already existing under the Income Tax Act, 1961. In the said Bill it is mentioned that the Settlement Commission will also entertain application for settlement of cases relating to the levy, assessment and collection of customs duty, or any appeal or revision in connection with such levy, assessment or collection. Any importer or exporter or any person who has incurred any liability under any law levying duties of customs may make an application in such form and in such a manner as may be prescribed stating interalia a true and full disclosure of his duty liability which has not been disclosed before the proper officer having jurisdiction, the manner in which such liability has been incurred and the additional amount of excise duty accepted to be payable by him. It also provides that such an application will be accepted only where the Applicant has filed a bill of entry or shipping bill ( 12 ) under the Customs Act, 1962. Only cases where show cause notice or demand notice for recovery of duty has been received by the Applicant will be entertained. 5. Mr.Rana thereafter brought to our notice the judgment of the Hon’ble Supreme Court in the case of Commissioner of Income Tax (Central) V/s. Commissioner of Income Tax (Central) V/s. Commissioner of Income Tax (Central) V/s. B.N.Bhattacharjee and Another, reported in (1979) 4 SCC B.N.Bhattacharjee and Another, reported in (1979) 4 SCC B.N.Bhattacharjee and Another, reported in (1979) 4 SCC 121, 121, 121, wherein the issue with regard to setting up of the Settlement Commission under Chapter XIX-A with regard to recovery of income tax was considered. The relevant part of paragraph No.68 in the aforesaid judgment, reads as under:- "It is not inappropriate to state that the policy of the law as disclosed in Chapter XIXA is not to provide a rescue shelter for big tax-dodgers who indulge in criminal activities by approaching the Settlement Commission. The Settlement Commission will certainly take due note of the gravity of economic offences on the wealth of the nation which the Wanchoo Committee had emphasised and will exercise its power of immunisation against criminal prosecutions by using its power only sparingly and in deserving cases; otherwise such orders may become vulnerable if properly challenged.: 6. Mr.Rana thereafter referred to the judgment of the Hon’ble Supreme Court in the case of Commmissioner of Commmissioner of Commmissioner of Income Tax, Madras V/s. Express Newspapers Ltd., Income Tax, Madras V/s. Express Newspapers Ltd., Income Tax, Madras V/s. Express Newspapers Ltd., reported in (1994) 2 Supreme Court Cases 374. reported in (1994) 2 Supreme Court Cases 374. reported in (1994) 2 Supreme Court Cases 374. Though the aforesaid case was decided by the Supreme Court subsequent to the amendment of 1991, in the said judgment, the Supreme Court was dealing with the case involving a period prior to the amendment of 1991. ( 13 ) Paragraph Nos.19 and 22 of the aforesaid judgment would be relevant which read as under:- "19. The idea underlying the said words [in the main limb of sub-section (1-A) is self-evident. The disclosure under Section 245-C must be of an income not disclosed before the Assessing Officer. If the Assessing Officer (or the income tax authority) has already discovered it and has either gathered the material to establish the particulars of such income or fraud fully or is at a stage of investigation/enquiries where the material gathered by him is likely to establish the particulars of such income or fraud, the assessee cannot be allowed to defeat or forestall, as the case may be, the entire exercise of the income tax authorities just by approaching the Commission. In such a case, it cannot be said that he is acting voluntarily or in good faith. He should not be allowed to take advantage of the comparatively easy course of settlement. He must be allowed to face the normal channels of assessment/appeal etc. Section 245-C is meant for those assessees who seek to disclose income not disclosed before the Officer including "the manner in which such income has been derived". If the department already knows and has gathered particulars of such income and the manner in which it has been derived, there is no ‘disclosure’ by the assessee. Let it be remembered that the words in question [in Section 245-D (1-A)] are not words of limitation nor are they meant to help unscrupulous assessees. Chapter XIX-A is a part of the Income Tax Act and must be construed consistent with the overall scheme and object. The chapter is meant for those assessees who want to disclose income not disclosed till then together with the manner in which the said income is derived. It is not meant for those who come after the event, i.e., after the discovery of the particulars of income and its source - or discovery of particulars of fraud perpetrated by the assessee, as the case may be - nor even to those who come to the commission to forestall the investigation/inquiries which have reached a stage where the department is in possession of material which though not sufficient to establish such concealment or fraud, is such that it is likely to establish it - may be some more material is required to establish it fully. The Commission has to keep all this in mind while deciding whether to allow the application to be proceeded before it or to reject it." "22. If we look at the facts of the case in the light of the legal position adumbrated hereinabove, it would be clear that the application filed by the respondent before the Commission was not maintainable and could not have been allowed to be proceeded with. Firstly, the respondent did not disclose, in its application under Section 245-C, any income which was not disclosed before the Assessing Officer. This was a case where the ( 14 ) respondent was claiming certain losses, which he sought to set-off against its other income. If the respondent’s case was true, it would not have been liable to pay any tax for the reason that entire income from property (and other income, if any) would have been swamped by the said losses. Indeed, the loss had to be carried forward to the next year. The case of the Revenue, however, was that all the alleged transactions (from which loss is said to have resulted) were bogus and fictitious ones, fabricated only for the purposes of evading the tax lawfully due on its income. In his application to the Commission, the respondent did not disclose any income not disclosed by him before the Assessing Officer nor did he disclose in his application the manner in which such income was derived. The assessee merely offered a part of the amount (claimed by him as losses) towards taxable income. Thus, his application, not being in compliance with the first and foremost requirement of Section 245-C(1), was not maintainable thereunder. It ought to have been rejected in limine. the Commission had no jurisdictiion to entertain the said application. Secondly, this is a case where the income tax authorities had made extensive investigation and inquiries wherein they had collected voluminous material, which, according to them, established the particulars of concealment of income on the part of the respondent-assessee. It was so held by the Assessing Officer- with whom the first appellate authority agreed, no doubt, subsequent to the filing of the application under Section 245-C but before the passing of the impugned order." It should be noted here that prior to 1991 amendment, in Section 245D there was a second proviso which provided that the application for settlement shall not be proceeded with