DCIT (LTU), New Delhi V. M/s. RITS Ltd., New Delhi

ITA 3687/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 5592 (ITAT-DELHI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 28-01-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 28-08-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: SUDHIR JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F DELHI) BEFORE SHRI I.P. BANSAL, J.M. AND SHRI B.P. JAIN, A.M. ITA NO. 3687 (DEL)2009 ASSESSMENT YEARS: 2001-02 DY. COMMISSIONER OF I.TAX, M/S RITES LTD ., LTU, NBCC, V. SCOPE MINAR, PLAZA PUSHP VIHAR, LAXMI NAGAR, NEW DELHI 110 007. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI H.K. LAL, SR.DR RESPONDENT BY: SHRI SUDHIR JAIN, AR ORDER PER I.P. BANSAL, J.M. THE APPELLANT IN THE PRESENT APPEALS IS DEPARTMENT. RESPONDENT IN THE PRESENT CASE IS PUBLIC SECTOR UNDERTAKING/ GOVT. OF INDIA UNDERTAKING. ACCORDING TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF OIL & NATURAL GAS COMMISSION & ANOTHER V. COMMISSIONER OF CENTRAL EXCISE, 104 CTR SC 31 IT IS OBLIGATORY ON EVERY COURT 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 WOULD NOT BE PROCEEDED WITH. IT WILL ITA NO.3687/D/09 2 BE RELEVANT TO REPRODUCE FOLLOWING OBSERVATIONS OF THEIR 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 CLEA RANCE FROM THE COMMITTEE IN CASE IT HAS NOT BEEN SO PLEADED AND IN THE ABSENCE OF THE CLEARANCE, THE PROCEEDINGS WOULD NOT BE PROCEEDED W ITH. 2. 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 MAINTAINI NG DISCIPLINE AND ABIDING BY THE DECISION, THE APPELLANTS HAVE WASTED PUBLIC MONEY AND TIME OF THE COURTS. THE CLARIFICATORY ORDER, RELI ED 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 WI TH. THIS POSITION IS FURTHER CLARIFIED IN CHIEF CONSERVATOR OF FOREST S CASE WHERE AGAIN THIS COURT HAS HELD THAT THE DECISION 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, THE SE PROCEEDINGS CANNOT BE PROCEEDED WITH. THE HIGH COURT WAS WRON G IN DEALING WITH ITA NO.3687/D/09 3 THE MERITS OF THE MATTER. WE, THEREFORE, DO NOT E XAMINE WHETHER THE HIGH COURT WAS RIGHT ON MERITS. THE APPEAL ACCORD INGLY STANDS DISPOSED OF WITH NO ORDER AS TO COSTS. 3. NO SUCH APPROVAL FROM COD HAS BEEN FURNISHED BY THE DEPARTMENT, THEREFORE, IN THE ABSENCE OF CLEARANCE FROM COD THE APPEAL FILED BY THE DEPARTMENT CANNOT BE PROCEEDED WITH. AS SUCH THIS APPEAL IS DISMISSED FOR WANT OF CLEARANCE FROM COD. WE MAY OBSERVE THAT I F LATER ON IN CASE THE DEPARTMENT IS ABLE TO OBTAIN CLEARANCE FROM COD IT MAY APPROACH THE TRIBUNAL FOR REVIVAL OF THIS APPEAL. WITH THESE OB SERVATIONS THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 29.01.2010. (B.P. JAIN) (I.P. BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 29.01.2010 *DK COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT: ONGC 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DEPUTY REGISTRAR