DCIT (LTU), New Delhi V. M/s Rural Electrification Corporation Ltd., New Delhi

ITA 3662/DEL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9612 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 27-01-2010
• Assessment Year: misc
• Appeal Filed On: 27-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C PANCHOLI
• Assessee Lawyers: GAGAN GOYAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER & SHRI B.P. JAIN, ACCOUNTANT MEMBER ITA NO. 3662/DEL/2009 ASSESSMENT YEAR: 2001-02 DCIT (LTU), VS. M/S RURAL ELECTRIFICATION CORPORA TION LTD., NBCC PLAZA, PUSHP VIHAR, CORE-IV, SCOPE COMPLEX, 7 LODHI ROAD, NEW DELHI. NEW DELHI. PAN NO. AAACR4512R (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P.C. PANCHOLI, SR. DR RESPONDENT BY : SH. GAGAN GOYAL, FCA ORDER PER I.P. BANSAL, J.M. THIS IS AN APPEAL FILED BY THE REVENUE. IT IS DIR ECTED AGAINST THE ORDER OF CIT(A) DATED 29.06.2009 FOR A.Y. 2001-02. 2. THE RESPONDENT IN THE PRESENT CASE IS A PUBLIC SECT OR UNDERTAKING, THEREFORE, APPROVAL FROM COD IS REQUIRED. NO SUCH APPROVAL FROM COD HAS BEEN FURNISHED ON RECORD. ACCORDING TO DECISION OF HONBLE SUPREME COURT IN THE CASE OF OIL AND NATURAL GAS AND ANOTHER V. C OMMISSIONER OF CENTRAL EXCISE, 104 CTR SC 31 IT IS OBLIGATORY ON EVERY COU RT AND EVERY TRIBUNAL WHERE DISPUTE BETWEEN PUBLIC SECTOR UNDERTAKING AND DEPARTMENT IS RAISED TO DEMAND A CLEARANCE FROM COMMITTEE IN CASE IT HAS NOT BEEN SO PLEADED AND IN THE ABSENCE OF CLEARANCE, THE PROCEEDINGS WO ULD NOT BE PROCEEDED WITH. IT WILL BE RELEVANT TO REPRODUCE FOLLOWING OBSERVATIONS OF THEIR ITA NO. 3662/DEL/09 2 LORDSHIPS FROM THE SAID DECISION:- IT SHALL BE THE OBLIGATION OF EVERY COURT AND EVER Y TRIBUNAL WHERE SUCH A DISPUTE IS RAISED HEREAFTER TO DEMAND A CLEARANCE FROM THE COMMITTEE IN CASE IT HAS NOT BEEN SO PLEAD ED AND IN THE ABSENCE OF THE CLEARANCE, THE PROCEEDINGS WOULD NOT BE PROCEEDED WITH. 3. THE STAND WAS REITERATED BY THE HONBLE SUPREME COURT IN THE CASE OF MAHANAGAR TELEPHONE NIGAM LTD. V. CHAIRMAN, CBDT , [2004] 267 ITR 647(SC) AS PER THE FOLLOWING OBSERVATIONS:- IN THIS CASE, THIS IS ABSOLUTELY WHAT HAS HAPPENED . THE APPELLANTS WANTED TO APPROACH THE COURT ONLY AGAINST A SHOW CA USE NOTICE. IT IS SETTLED LAW THAT AGAINST A SHOW CAUSE NOTICE LITIGA TION SHOULD NOT BE ENCOURAGED. THE DECISION OF THE HIGH POWERED COMM ITTEE, SET OUT HEREINABOVE, MERELY EMPHASIZES THE WELL-SETTLED POS ITION. IT IS AN EMINENTLY FAIR AND CORRECT DECISION. THE PURPOSE OF THE DECISION WAS TO PREVENT FRIVOLOUS LITIGATION. NO RIGHT OF THE APPELLANTS IS BEING AFFECTED. IT HAS BEEN CLARIFIED THAT THE APPELLANT S COULD MOVE A COURT OF LAW AGAINST AN APPEALABLE ORDER. BY NOT MAINTA INING DISCIPLINE AND ABIDING BY THE DECISION, THE APPELLANTS HAVE WA STED PUBLIC MONEY AND TIME OF THE COURTS. THE CLARIFICATORY O RDER, RELIED UPON BY MR. ANDHYARUJINA, CLARIFIES IN PARA 5 AS TO WHAT IS TO HAPPEN IF CLEARANCE IS NOT GIVEN BY THE COMMITTEE. IT IS SET OUT THAT, IN THE ABSENCE OF THE CLEARANCE, THE PROCEEDINGS MUST NOT BE PROCEEDED WITH. THIS POSITION IS FURTHER CLARIFIED IN CHIEF CONSERVATOR OF FORESTS CASE WHERE AGAIN THIS COURT HAS HELD THAT THE DECI SION TAKEN BY SUCH A COMMITTEE IS BINDING ON ALL DEPARTMENTS CONCERNED AND IT IS THE STAND OF THE GOVERNMENT. IN VIEW OF THIS SETTLED LAW, WHICH IS BINDING ON US , WE HOLD THAT, AS CLEARANCE HAS NOT BEEN GIVEN TO THE APPELLANTS, THESE PROCEEDINGS CANNOT BE PROCEEDED WITH. THE HIGH COURT WAS WRON G IN DEALING WITH THE MERITS OF THE MATTER. WE, THEREFORE, DO NOT EXAMINE WHETHER THE HIGH COURT WAS RIGHT ON MERITS. THE APPEAL AC CORDINGLY STANDS DISPOSED OF WITH NO ORDER AS TO COSTS. ITA NO. 3662/DEL/09 3 4. NO SUCH APPROVAL FROM COD HAS BEEN FURNISHED BY THE REVENUE, THEREFORE, IN THE ABSENCE OF CLEARANCE FROM COD THE APPEAL FILED BY THE REVENUE CANNOT BE PROCEEDED WITH. AS SUCH THIS AP PEAL IS DISMISSED FOR WANT OF CLEARANCE FROM COD. WE MAY OBSERVE THAT I F LATER ON IN CASE THE REVENUE IS ABLE TO OBTAIN CLEARANCE FROM COD IT MAY APPROACH THE TRIBUNAL FOR REVIVAL OF THIS APPEAL. WITH THESE OBSERVATION S THE APPEAL IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 29.1.2010 (B.P. JAIN) (I.P. BANSA L) ACCOUNTANT MEMBER JU DICIAL MEMBER DATED: *KAVITA CHOPRA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR