The ACIT, 1(1), V. M/s Sent Bank Home Fianance Ltd.,

ITA 22/IND/2004

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1516 (ITAT-INDORE)
• Duration Of Justice: 5 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-11-2009
• Assessment Year: 1997-1998
• Appeal Filed On: 05-01-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K KARAN
• Keywords: TDS

Judgement Text

PAGE 1 OF 5 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI V.K. GUPTA, AM ITA NO.22/IND/2004 AY: 1997-98 ACIT-1(1), BHOPAL ..APPELLANT V/S. CENT BANK HOME FINANCE LTD., CENTRAL BANK OF INDIA BUILDING, 9, ARERA HILLS, BHOPAL (PAN AAACC 6308 N) ..RESPONDENT DEPARTMENT BY : SHRI V.K. KARAN, SR. DR ASSESSEE BY : NONE ORDER PER JOGINDER SINGH, JM THIS APPEAL IS BY THE REVENUE CHALLENGING THE ORDER OF THE LD. CIT(A) DATED 27.10.2003 ON THE GROUND THAT ON THE F ACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. FIRST APPELLATE AUTHORITY ERRED IN DIRECTING THE ASSESSING OFFICER TO RESTORE THE DEDU CTION OF RS.50,89,175/- WHICH WAS DISALLOWED BY THE ASSESSING OFFICER. 2. DURING HEARING OF THIS APPEAL, ON QUESTIONING FR OM THE BENCH ABOUT COD, THE LD. SR. DR FAIRLY AGREED THAT NO COD HAS BEEN OBTAINED BY THE REVENUE TO PURSUE THIS APPEAL TILL DATE. THE ASSESSEE HAS ALSO MOVED AN APPLICATION FOR ADJOURNMENT. HOWEVER, IN V IEW OF THE ABOVE PAGE 2 OF 5 FACTUAL POSITION, THE APPLICATION OF THE ASSESSEE F OR ADJOURNMENT IS DISMISSED. 3. WE HAVE CONSIDERED THE FACTS THE FAIR ADMISSION ON BEHALF OF THE REVENUE. IT IS SEEN THAT THIS APPEAL WAS FILED BY D EPARTMENT ON 5.1.2004 AND SINCE THEN HAS BEEN ADJOURNED ON VARIOUS DATES, THEREFORE, WITHOUT GOING INTO MERIT OF THE CASE AND THE ASSERTION OF T HE LD. SR. DR THAT NO PERMISSION HAS BEEN OBTAINED TILL DATE FROM THE COM MITTEE ON DISPUTES BY THE REVENUE TO PURSUE ITS APPEAL, WE HAVE NO OPT ION BUT TO DISMISS THE APPEAL OF THE REVENUE. OUR VIEW FINDS SUPPORT F ROM THE DECISION OF THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF STATE BANK OF PATIALA (ITA NO.328/CHD/2009) ORDER DATED 29.6.2009, WHEREI N ONE OF US (JUDICIAL MEMBER) WAS SIGNATORY TO THE ORDER. THE R ELEVANT PORTION OF THE ORDER IS REPRODUCED HEREUNDER: THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A) DATED 11.2.2009 ON THE GROUND AS DETAILED IN THE GROUNDS OF APPEAL. DURING HEARING OF THE APPEAL WE HAVE HEARD, SHRI PANKAJ JAIN, LD COUNSEL FOR THE ASSESSEE AND MRS INOSHI SHARMA LEARNED DR. AT THE OUTSET, IT WAS POINTED OUT THAT NO COD HAS BEEN OBTAINED BY THE ASSESSEE, THEREFORE, THE APPEALS IS LIABLE TO BE DISMISSED FOR WANT OF PERMISSION FROM THE COMMITTEE ON DISPUTES. THE LD COUNSEL FOR THE ASSESSEE ADMITTED THAT AS ON DATE, NO PERMISSION IS OBTAINED, HOWEVER, THE ASSESSEE MAY BE PERMITTED TO PURSUE ITS APPEAL, IF SUCH PERMISSION IS OBTAINED AND PRODUCED BY THE ASSESSEE. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON THE FILE. ON IDENTICAL SITUATION, THE TRIBUNAL IN THE CASE OF SA TLUJ PAGE 3 OF 5 JAL VIDYUT NIGAM LTD VS. ITO (ITA NOS. 1031 TO 1033/CHD/2008) DISMISSED THE APPEAL OF THE ASSESSEE FOR WANT OF COD PERMISSION. THE RELEVANT PORTION OF THE ORDER IS REPRODUCED HEREWITH: THESE THREE APPEALS ARE BY THE ASSESSEE FOR ASSESSMENT YEARS 2001-02 TO 2002-03 AGAINST THE COMMON ORDER OF THE LEARNED CIT(A) DATED 29.9.2008 ON THE GROUND THAT THE LEARNED FIRST APPELLATE AUTHORITY GRAVELY ERRED IN UPHOLDING THE ORDER OF THE LEARNED ITO(TDS) THAT THE ASSESSEE WAS LIABLE TO DEDUCT TAX AT SOURCE UNDER SECTION 194A OF THE ACT AND CONSEQUENT CHARGING OF INTEREST UNDER SECTION 201(1A) OF THE ACT. 2. DURING ARGUMENTS, WE HAVE HEARD SHRI VINEET KRISHAN, LEARNED COUNSEL FOR THE ASSESSEE AND SHRI M.S. BHATIA LEARNED SR. D.R. AT THE OUTSET, IT WAS POINTED OUT BY THE LEARNED SR D.R THAT NECESSARY PERMISSION FROM COD HAS NOT BEEN RECEIVED BY THE ASSESSEE FOR PURSUING THESE APPEALS BEFORE THE TRIBUNAL. THE ASSESSEE ALSO COULD NOT PRODUCE SUCH PERMISSION. IN VIEW OF THESE FACTS, THESE APPEALS OF THE ASSESSEE ARE LIABLE TO BE DISMISSED FOR WANT OF NECESSARY PERMISSION FROM THE COMMITTEE ON DISPUTES. FOR THIS PROPOSITION, WE ARE FORTIFIED BY THE FOLLOWING DECISIONS. I) OIL & NATURAL GAS COMMISSION VS. COLLECTOR, CENTRAL EXCISE (1994) 70 ELT 45 (SC) II) OIL & NATURAL GAS COMMISSION VS. COLLECTOR, CENTRAL EXCISE (1992) SUPPLEMENTARY (4) SCC 541 III) CHIEF CONSERVATOR OF FOR FORESTS VS. COLLECTOR, 2003 SCC 472 IV) MAHANAGAR TELEPHONE NIGAM LTD VS. CBDT, 267 ITR 647 (SC). PAGE 4 OF 5 V) ITAT CHANDIGARH BENCH DECISION DATED 21.3.2005 IN ASSESSEES OWN CASE IN INTEREST TAX ASSESSMENT PROCEEDINGS NO. 4/CHANDTI/2002 FOR ASSESSMENT YEAR 1998-99. VI) ACIT, CIRCLE PATIALA PATIALA VS. STATE BANK OF PATIALA, IN ITA NOS 535, 536 & 484/CHANDI/2005 FOR ASSESSMENT YEARS 1994-95, 2001-02 & 1994-95 ORDER DATED 22.12.2006 IN THE LIGHT OF THE AFORESAID JUDICIAL PRONOUNCEMENTS, WE ARE OF THE VIEW, THAT IN THE ABSENCE OF CLEARANCE TO THE ASSESSEE, THE PROCEEDINGS CANNOT BE PROCEEDED WITH, CONSEQUENTLY, THESE APPEALS OF THE ASSESSEE ARE DISMISSED WITH A RIDER THAT IN CASE SUCH CLEARANCE IS PROVIDED TO THE ASSESSEE AND THE PROOF OF THE SAME IS FILED WITH THE REGISTRY OF THIS TRIBUNAL, THESE APPEALS SHALL BE RESTORED AND DISPOSED OF IN ACCORDANCE WITH LAW. IN THE RESULT, THESE APPEALS OF THE ASSESSEE ARE DISMISSED. IN THE LIGHT OF THE AFORESAID JUDICIAL PRONOUNCEMENTS, WE ARE OF THE VIEW, THAT IN THE ABSENCE OF CLEARANCE FROM THE COMMITTEE ON DISPUTES TO THE ASSESSEE, THE PROCEEDINGS CANNOT BE PROCEEDED WITH, CONSEQUENTLY, THE IMPUGNED APPEAL OF THE ASSESSEE IS DISMISSED WITH A RIDER THAT IN CASE SUCH CLEARANCE IS PROVIDED TO THE ASSESSEE AND THE PROOF OF THE SAME IS FILED WITH TH E REGISTRY OF THIS TRIBUNAL, THE IMPUGNED APPEAL SHALL BE RESTORED AND WILL BE DISPOSED OF IN ACCORDANCE WITH LAW. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED REPRESENTATIVES FROM BOTH SIDES ON 15.6.2009. PAGE 5 OF 5 4. IN VIEW OF THE ABOVE AND THE FAIR ADMISSION ON B EHALF OF THE REVENUE THAT THERE IS NO PERMISSION WITH THE DEPART MENT TO PURSUE ITS APPEAL BEFORE THE TRIBUNAL, CONSEQUENTLY, THIS APPE AL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENT OF LD. SR. DR ON 10.11.2009. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMI SSED. SD/- SD/- (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 10.11.2009 COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR