Central Coalfields Ltd., V. Addl Commissioner of Income Tax,

ITA 173/RAN/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85464 (ITAT-RANCHI)
• Duration Of Justice: 5 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-12-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 01-06-2009
• Court: TRIBUNAL
• Department Lawyers: DEEPAK ROSHAN SR S C LD
• Assessee Lawyers: S K PODDAR; M K CHOUDHARY S LD ARS
• Keywords: Search and seizure

Judgement Text

1 ITA NO.173/RAN/09 RANJAN KR.SAHA CHAIRMAN CUM MD, M/S.CCL INCOME TAX APPELLATE TRIBUNAL, CIRCUIT BENCH, RANCHI BEFORE HON'BLE SHRI H.L. KARWA, PRESIDENT , AND HON'BLE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO. 173/RAN/09 A.Y 2005 - 06 SHRI RANJAN KR. SAHA VS. ADDL. CIT, RANGE - 1, RANCHI CHAIRMAN CUM MD M/S. CENTRAL COALFIELDS LTD PAN :AAACC7476R ( APPELLANT ) ( RESPONDEN T ) FOR THE APPELLANT :S/SHRI S.K.PODDAR & M.K. CHOUDHARY, ADVOCATES, LD.ARS FOR THE RESPONDENT : SHRI DEEPAK ROSHAN, SR.S.C /LD.DR DATE OF HEARING : 03 - 12 - 2014 DATE O F PRONOUNCEMENT: 0 3 - 12 - 2014 ORDER SHRI B.R. BASKARAN, ACCOUNTANT MEMBER : THE APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 03 - 02 - 2009 PASSED BY LD CIT(A), RANCHI AND IT RELATES TO THE ASSE SSMENT YEAR 2005 - 06 . THE ASSESSEE HAS RAISED TWO EFFECTIVE GROUNDS, EVEN THOUGH IT HAS RAISED SIX GROUNDS IN TOTAL. 2. THIS APPEAL WAS EARLIER DISPOSED OF BY THE CO - ORDINATE BENCH ON 12.02.2010. THE ASSESSEE, BEING A GOVERNMENT UNDERTAKING, WAS REQUIR ED TO OBTAIN APPROVAL OF COMMITTEE ON DISPUTES (COD) FOR PROSECUTING THIS APPEAL. ACCORDINGLY, IT APPLIED TO COD SEEKING PERMISSION TO PROSECUTE BOTH THE GROUNDS. HOWEVER, THE COMMITTEE ON DISPUTES, IN ITS MEETING HELD ON 19.11.2009 PERMITTED THE ASSESSE E TO PROSECUTE ONLY 2 ITA NO.173/RAN/09 RANJAN KR.SAHA CHAIRMAN CUM MD, M/S.CCL ONE GROUND RELATING TO LEASE HOLD PREMIUM AND REJECTED THE PERMISSION WITH REGARD TO THE REMAINING GROUNDS. THE DECISION OF THE COD WAS COMMUNICATED TO THE ASSESSEE, VIDE ITS LETTER DATED 08.12.2009. ACCORDINGLY, THE CO - ORDINATE BENCH DISPOSED OF THE GROUND RELATING TO LEASE HOLD PREMIUM AND DISMISSED THE REMAINING GROUNDS. 3. SUBSEQUENTLY, THE DEPARTMENT MOVED A MISCELLANEOUS APPLICATION BEFORE THE TRIBUNAL SEEKING RECALL OF THE ORDER PASSED BY THE TRIBUNAL, REFERRED SUPRA, IN VI EW OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD VS. UNION OF INDIA & OTHERS (CIVIL APPEAL NO.1883 OF 2011 DATED 17.02.2011), WHEREIN THE HON BLE APEX COURT RECALLED ITS DIRECTION REGARDING SEEKING APPROVA L OF COD FOR PROSECUTING THE APPEALS. THE DEPARTMENT APPEARS TO HAVE MOVED THE PETITION IN THE LIGHT OF LETTER DATED 12.12.2011 ISSUED BY THE CBDT GIVING DIRECTION TO THE ASSESSING OFFICERS TO FILE REVIVAL APPLICATIONS IN ALL CASES WHERE EITHER THE COURT/ TRIBUNAL HAS DISMISSED THE APPEAL FOR WANT OF APPROVAL OF COD. ACCORDINGLY, THE CO - ORDINATE BENCH OF THE TRIBUNAL, VIDE ITS ORDER DATED 19 - 06 - 2013 PASSED IN M.A.NO.13/RAN/2012, REVIVED THE APPEAL DISMISSED FOR WANT OF APPROVAL OF COD , MEANING THEREBY ONLY THOSE ISSUES WHICH WERE DISMISSED FOR WANT OF APPROVAL OF COMMITTEE ON DISPUTES WERE REVIVED . ACCORDINGLY, THIS APPEAL CAME TO BE SHOWN AS PENDING . 4. FIRST OF ALL, IT IS NOT UNDERSTANDABLE AS TO WHY THE DEPARTMENT HAS FILED THE MISCELLANEOUS APPLIC ATION SEEKING RECALL OF THE ORDER PASSED IN THE APPEAL FILED BY THE ASSESSEE, WHEN THE GROUNDS OF THE ASSESSEE HAD 3 ITA NO.173/RAN/09 RANJAN KR.SAHA CHAIRMAN CUM MD, M/S.CCL ALREADY BEEN DISMISSED FOR WANT OF COD, MEANING THEREBY THE SAID DISMISSAL WAS IN FAVOUR OF THE REVENUE. THE SAID ACTION OF THE REVENUE ONLY SHOWS ABOUT NON - APPLICATION OF MIND ON THE PART OF THE OFFICERS WHO MOVED/APPROVED THE MISCELLANEOUS PETITION. 5. AS PER THE ORDER PASSED BY THE TRIBUNAL IN THE MISCELLANEOUS APPLICATION, THE PRESENT APPEAL HAS BEEN RECALLED TO DECIDE ONLY THOSE GR OUNDS WHICH WERE DISMISSED FOR WANT OF COD. WE HAVE ALREADY NOTICED THAT THE COD HAS GRANTED PERMISSION TO PROSECUTE THE FIRST GROUND ONLY AND DID NOT APPROVE THE PROSECUTION OF THE REMAINING GROUNDS. IT CAN BE NOTICED THAT THE REMAINING GROUNDS CONSISTE D OF ONLY ONE EFFECTIVE GROUND , VIZ., DISALLOWANCE OF ARREAR HRA PAID BY THE ASSESSEE AND FOUR GENERAL GROUNDS. 6. THE QUESTION THAT ARISES IS WHE THER THE DECISION OF THE COD DECLINING PERMISSION TO PROSECUTE THE APPEAL WILL BE CONSIDERED AS VALID OR NOT , SUBSEQUENT TO THE ORDER OF HON BLE APEX COURT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD (SUPRA). IN THIS REGARD, WE MAY GAINLY REFER TO SOME OF THE DECISIONS. THE HON BLE DELHI BENCH OF TRIBUNAL HAS CONSIDERED THIS ISSUE IN THE CASE OF DC IT VS. AIRPORT AUTHORITY OF INDIA (2013)(35 TAXMANN.COM 141) AND IT HAS HELD, INTER ALIA, AS UNDER , VIDE ITS ORDER DATED 14.12.2012 : - WHERE COD APPROVAL IS DENIED PRIOR TO THE DECISION OF HON BLE SUPREME COURT DATED 17/02/2011 RECALLING ITS ORDER IN THE C ASE OF ONGC (SUPRA), THE ORDER OF TRIBUNAL DISMISSING THE APPEAL PRIOR TO COD APPROVAL CANNOT BE RECALLED. 4 ITA NO.173/RAN/09 RANJAN KR.SAHA CHAIRMAN CUM MD, M/S.CCL 7. THE ABOVE SAID QUESTION WAS ALSO CONSIDERED BY THE HON BLE KERALA HIGH COURT IN THE CASE OF STATE BANK OF TRAVANCORE IN RP NO. 895 OF 2010. THE HON BLE KERALA HIGH COURT, VIDE ITS ORDER DATED 30 - 11 - 2011, HAS HELD AS UNDER: - HOWEVER, THE RESPONDENT S COUNSEL BROUGHT TO OUR NOTICE THAT THE COD REJECTED REVENUE S APPLICATION FOR PERMISSION TO FILE APPEALS THROUGH SEPARATE ORDERS DATED 20/05/200 5, 17/06/2006, 11/11/2008 & 20/08/2009, WHICH HAPPENED MORE THAN 2 YEARS PRIOR TO THE DATE OF THE JUDGMENT OF THE HONOURABLE SUPREME COURT. IN OTHER WORDS, WHEN THE COMMITTEE CONSIDERED AND DECLINED PERMISSION TO THE REVENUE, THE COMMITTEE REMAINED VALIDL Y CONSTITUTED UNDER THE ORDERS OF THE SUPREME COURT, AND SO MUCH SO, WE ARE AFRAID WE CANNOT IGNORE THOSE ORDERS. WE REFUSED TO ENTERTAIN THE A PPEALS AND REJECTED THE SAME ON 15/12/2009 FOR THE REASON THAT THE COMMITTEE ON DISPUTES DECLINED PERMISSION. T HE HONORABLE SUPREME COURT IN THE JUDGMENT REFERRED TO ABOVE HAS NOT STATED AS TO WHETHER THE APPROVALS GRANTED OR DECLINED BY THE COMMITTEE COULD BE GONE INTO BY THE APPELLATE COURT IN ANY CASE PENDING OR DISPOSED OF. SO MUCH SO, WE FEEL THE APPLICATIONS OF THE REVENUE CANNOT BE ALLOWED. THUS, THE HON BLE KERALA HIGH COURT HAS MADE IT CLEAR THAT THE ORDERS ALREADY PASSED BY COD CANNOT BE IGNORED, EVEN AFTER THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA, SUPRA. IN THE INSTANT CASE, THE COD HAS PASSED ITS ORDER ON 08.09.2009. THE DECISION IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD, SUPRA, WAS RENDERED BY HON BLE APEX COURT ON 17 - 12 - 2011. SINCE THE COD IN THE INSTANT CASE HAS PASSED ITS ORDERS PRIOR TO THE DATE OF DECISION OF HON BLE SUPREME COURT REFERRED SUPRA, THE SAID ORDER OF THE COD CANNOT BE IGNORED AS PER THE DECISION OF HON BLE KERALA HIGH COURT REFERRED SUPRA AND CONSEQUENTLY IT HAS TO BE COMPLIED WITH. 5 ITA NO.173/RAN/09 RANJAN KR.SAHA CHAIRMAN CUM MD, M/S.CCL 8. SINCE THE COD HAS DENIED PERM ISSION TO PROSECUTE THE ISSUES URGED IN GROUND NOS. 2 TO 6, BY FOLLOWING THE DECISION OF HON BLE KERALA HIGH COURT (REFERRED SUPRA), WE HOLD THAT THE SAID ORDER OF COD SHALL BE BINDING ON THE ASSESSEE EVEN AFTER THE DECISION OF HON BLE SUPREME COURT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD. ACCORDINGLY, WE DISMISS THE GROUNDS 2 TO 6 URGED BY THE ASSESSEE. WE ALSO NOTICE THAT THE COCHIN BENCH OF TRIBUNAL HAS FOLLOWED THE ABOVE SAID DECISION OF HON BLE KERALA HIGH COURT IN ITS ORDER DATED 29 - 03 - 2012 PASSED IN THE CASE OF STATE BANK OF TRAVANCORE IN ITA NO. 406/COCH/2009 RELATING TO AY 2009 - 10. THE SAID CASE RELATE TO THE APPEAL FILED BY THE DEPARTMENT, WHEREIN THE COD HAD REJECTED PERMISSION IN RESPECT OF TWO ISSUES AND GRANTED PERMISSION IN RE SPECT OF OTHER ISSUES. THE RELEVANT APPEAL WAS HEARD BY THE TRIBUNAL SUBSEQUENT TO THE DECISION OF ELECTRONICS CORPORATION OF INDIA LTD (SUPRA). SINCE THE COD HAD ALREADY REJECTED THE PERMISSION ON TWO ISSUES, THE TRIBUNAL DID NOT ALLOW THE DEPARTMENT TO CONTEST THEM AND ACCORDINGLY REJECTED THE SAME. THUS, IT IS SEEN THAT THE SANCTITY OF THE DECISION OF THE COD IS REQUIRED TO BE MAINTAINED. 9. WE NOTICE THAT THE EITHER OF PARTIES HAVE NOT BROUGHT TO THE NOTICE OF THE CO - ORDINATE BENCH ABOUT THE DECISION RENDERED BY THE HON BLE KERALA HIGH COURT IN THE CASE OF STATE BANK OF TRAVANCORE (SUPRA) OR THE ORDER PASSED BY THE DELHI BENCH OF TRIBUNAL IN THE CASE OF AIRPORT AUTHORITY OF INDIA (SUPRA) , WHILE HEARING THE MISCELLANEOUS PETITION . IN ANY CASE, THERE IS NO ESTOPPELS AGAINST THE LAW AND ACCORDINGLY, WE HAVE FOLLOWED THE LAW INTERPRET ED BY HON BLE KERALA HIGH COURT IN THE CASE CITED ABOVE. 6 ITA NO.173/RAN/09 RANJAN KR.SAHA CHAIRMAN CUM MD, M/S.CCL 10. IN THE RESULT, THE GROUNDS NOS. 2 TO 6 OF THE APPEAL ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03 - 12 - 2014 SD/ - SD/ - [ H.L. KARWA ] [ B.R. BASKARAN ] PRESIDENT ACCOUNTANT MEMBER DT. 03 - 12 - 2014 PLACE : RANCHI PP, SR. PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT : 2 THE RESPONDENT: 3..THE CIT, 4.THE CIT(A), 5.DR, ITAT CIRCUIT BENCH, RANCHI 6. GUARD FILE. TRUE COPY, BY ORDER, ASSTT. REGISTRAR 7 ITA NO.173/RAN/09 RANJAN KR.SAHA CHAIRMAN CUM MD, M/S.CCL 1 DATE OF DICTATION ............. NO DICTATION. ORDER PREPARED BY THE MEMBER IN HIS LAPTOP AND THE SAME RETURNED ON 4 - 12 - 14 .... FOR PRINTING ................. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER ........................OTHER MEMBER .............................. 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. ..................... 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCE MENT................................................................................ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S ................ 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK ....................................... 7 . DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ......................................... 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ............................................................................. .................... 9. DATE OF DESPATCH OF THE ORDER ..............................................................