The main legal point established in the judgment is that the Settlement Commission had exclusive jurisdiction from the date of the petitioner's application, and the penalty imposed was without jurisdiction.

JUDGMENT

Rajiv Sahai Endlaw, J. - The petition impugns the order dated 4th November, 2019 for the assessment year 2018-19, under Section 271DA of the Income Tax Act, 1961 ("Act"), imposing penalty on the petitioner in the sum of Rs.14,27,96,270/-.

2. The petition came up first before this Court on 10th January, 2020, when on the contention of the counsel for the petitioner that the order dated 4 th November, 2019 imposing penalty was passed after the petitioner had made an application before the Settlement Commission under Section 245C of the Act on 1st November, 2019, under intimation to the Assessing Officer, the petition was entertained, counter affidavit directed to be filed and the order imposing penalty was stayed; it was however clarified that the proceedings before the Settlement Commission shall go on, uninfluenced by the pendency of this petition.

3. No counter affidavit has been filed inspite of two opportunities. The counsel for the respondent states that a counter affidavit has been filed but has not come on record. The counsel for the petitioner states that he has received advance copy of the same. The counsel for the respondent draws attention to CM No.34968/2020 filed by the respondent, for vacation of the stay granted on 10th January, 2020 and expresses urgency, contending that the petitioner has obtained stay of the order imposing penalty, by misrepresenting / suppressing facts. We have however enquired from the counsel for the petitioner, whether not the hearing on the application for vacation of stay as well as on the main petition itself, would be substantially similar. The counsel for the petitioner then states that the writ petition itself can be heard today, without the counter affidavit coming on record in as much as the outcome of the writ petition depends upon the interpretation of the statutory provisions and the respondent does not need to refer to any documents other than those annexed to the petition and in fact the respondent, along with its counter affidavit has not annexed any documents and the pleadings in the counter affidavit are also confined to law, which can be argued. We have thus proceeded to hear the counsels on the writ petition.

4. It is the case of the petitioner, (a) that a search and seizure operation under Section 132 of the Act as well as survey under Section 133A of the Act was carried out on 29 th May, 2018 in the case of the petitioner and thereafter the investigation wing referred the case of the petitioner to the concerned Assessing Officer; (b) the respondent, being the Range Head of the Assessing Officer of the petitioner, after going through the seized material, presumed that the petitioner had violated the provisions of Section 269ST of the Act and issued a notice dated 30th September, 2019 to the petitioner, for assessment years 2018-19 and 2019-20, calling upon the petitioner to show cause why penalty under Section 271DA of the Act, for violating the provisions of Section 269ST of the Act, be not imposed on the petitioner and fixed the case for hearing on 10th October, 2019; (c) the petitioner vide letter dated 10th October, 2019 requested for adjournment and the case was adjourned to 16th October, 2019; (d) in the meanwhile, in pursuance to the search and seizure operation, notices under Section 153A of the Act were issued to the petitioner for the assessment years 2013-14 to 2018-19; (e) the petitioner, on 16th October, 2019 also, requested for adjournment of the hearing and sought time to file reply to the show cause notice dated 30th September, 2019; the hearing was adjourned to 21st October, 2019; (f) the petitioner, vide letter dated 18th October, 2019 requested the respondent to supply the relevant documents on the basis of which show cause notice under Section 271DA had been issued; (g) on 21st October, 2019, the petitioner contended that it had not received the document sought and sought for the proceedings to be kept in abeyance; (h) the petitioner, vide letter