The ACIT, 2 (1), V. M.P. Stata Mining Corporation Ltd,

ITA 4/IND/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8774 (ITAT-INDORE)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-07-2009
• Assessment Year: 2004-2005
• Appeal Filed On: 19-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K KARAN
• Assessee Lawyers: S S DESH
• Section: 207

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI N.K.SAINI, A.M. AND SHRI BHAVNESH SAINI, J.M. PAN NO. : AABCM0300K I.T.A.NO.04/IND/2009. A.Y. : 2004-05 ACIT, 2(1), BHOPAL. VS. M.P.STATE MINING CORPORATION LIMITED, PARYAVAS BHAWAN, JAIL ROAD, BHOPAL. APPELLANT RESPONDENT APPELLANT BY : SHRI V.K.KARAN, ADDL. CIT DR RESPONDENT BY : SHRI S.S.DESHPANDE, C.A. PAN NO. : AADCM7515Q I.T.A.NO. 291/IND/2009. A.Y. : 2003-04 MADHYA PRADESH AUDHYOGIK KENDRA VIKAS NIGAM (INDORE) , D.J.DAVE & COMPANY, 52-53, IIND FLOOR, DAWA BAZAR, R.N.T.MARG, VS. ACIT, 3(1), INDORE. -: 2 :- 2 INDORE. APPELLANT RESPONDENT APPELLANT BY : SHRI SACHIN KHERADIA, C.A. RESPONDENT BY : SMT. APARNA KARAN, ADDL. CIT DR PAN NO. : AACCM1081C I.T.A.NO.187/IND/2009. A.Y. : 1988-89 ACIT, 2(1), BHOPAL. VS. M.P.RAJYA VAN VIKASK NIGAM, 5 TH FLOOR, PANCHANAN BUILDING, MALVIYA NAGAR, BHOPAL. APPELLANT RESPONDENT APPELLANT BY : SHRI V.K.KARAN, ADDL. CIT DR RESPONDENT BY : SHRI ANIL KHABYA, C. A. PAN NO. : AABCM1366K I.T.A.NO. 14/IND/2009. A.Y. : 2005-06 M. P. LALGHU UDYOG NIGAM VS. ACIT, -: 3 :- 3 LIMITED, 4 TH FLOOR, PANCHANAN BUILDING, T.T.NAGAR, BHOPAL. 2(1), BHOPAL. APPELLANT RESPONDENT APPELLANT BY : SHRI ANIL KHABYA, C. A RESPONDENT BY : SHRI V.K.KARAN, ADDL. CIT DR PAN NO. : AAAAM2180N I.T.A.NO. 943/IND/2004. A.Y. : 1982-83 M. P. STATE COOP.OILSEED GROWERS FED. LIMITED, 1,ARERA HILLS, BHOPAL. VS. ACIT, 1(1), BHOPAL. APPELLANT RESPONDENT APPELLANT BY : NONE RESPONDENT BY : SMT. APARNA KARAN, ADDL. CIT DR -: 4 :- 4 O R D E R PER N. K. SAINI, A.M. THE ABOVE CAPTIONED APPEALS OF THE REVENUE FILED IN I.T.A.NOS. 04/IND/2009 AND 187/IND/2009 ARE DIRECTED AGAINST T HE ORDERS OF CIT(A)-I, BHOPAL, DATED 17.10.2008 AND 30.1.2009 AND RELATE T O ASSESSMENT YEARS 2004-05 & 1988-89 RESPECTIVELY AND ASSESSEES APPEA LS IN I.T.A.NOS. 291/IND/09, 14/IND/09 AND 943/IND/04 ARE DIRECTED A GAINST THE ORDERS OF CIT(A)-I, INDORE, DATED 27.3.2009, CIT(A)-I, BHOPAL , DATED 11.11.2008 AND CIT(A)-I, BHOPAL DATED 27.08.2004 AND RELATE TO ASS ESSMENT YEARS 2003-04, 2005-06 AND 1982-83 RESPECTIVELY. DIFFERENT ASSESS EES ARE THERE IN ALL THESE APPEALS. 2. WE HAVE HEARD THE PARTIES. IT IS NOTICED THAT IN THESE APPEALS, THE ASSESSEES ARE GOVERNMENT UNDERTAKINGS/CONCERNS,WHER EIN COMMITTEE ON DISPUTES PERMISSION IS REQUIRED. SIMILAR ISSUE HAS BEEN DECIDED BY THIS BENCH OF THE TRIBUNAL VIDE ORDER DATED 17.07.0 9 IN I.T.A.NO.221 & 269/IND/2009 IN THE CASE OF M.P.RAJYA VAN VIKAS NIG AM, BHOPAL, FOR -: 5 :- 5 THE ASSESSMENT YEARS 1998-99 AND 2006-07 AND RELEV ANT FINDING HAS BEEN GIVEN IN PARAS 2 & 3, WHICH READ AS UNDER :- 2. DURING THE COURSE OF HEARING BEFORE US, IT WAS A DMITTED BY BOTH THE PARTIES THAT THE ASSESSEE IS A STATE GO VERNMENT UNDERTAKING. SINCE THE PARTIES ARE GOVERNMENT UNDERTAKING, THEREFORE, THESE ARE REQUIRED TO SEEK PERMISSION OF THE COMMITTEE ON DISPUTES, BUT IT WAS BROUGHT TO OUR NOTICE BY THE LEARNED COUNSEL FOR TH E ASSESSEE THAT NO PERMISSION TO PURSUE THESE APPEALS HAD BEEN ACCORDED TILL NOW BY THE COMMITTEE ON DISPUTES . IN VIEW OF THE ABOVE, BOTH THESE APPEALS BY THE DEPART MENT DESERVES TO BE DISMISSED FOR WANT OF NECESSARY PERM ISSION FROM THE COMMITTEE ON DISPUTES WITH THE RIDER THAT IN CASE CLEARANCE IS OBTAINED FROM COMMITTEE ON DISPUTES, A PPEALS SHALL BE RESTORED AND DISPOSED OF IN ACCORDANCE WIT H LAW. FOR THIS PROPOSITION, WE ARE FORTIFIED BY THE FOLLO WING DECISIONS :- (I) OIL & NATURAL GAS COMMISSION V. COLLECTOR, CENTRAL EXCISE, (1994) 70 ELT 45 (S.C.) -: 6 :- 6 (II) OIL & NATURAL GAS COMMISSION VS. COLLECTOR, CENTRAL EXCISE, (1995) SUPPLEMENTARY (4) SCC 541. (III) CHIEF CONSERVATOR OF FORESTS V. COLLECTOR,(2003) 3 SCC 472 (IV) MAHANAGAR TELEPHONE NIGAM LIMITED VS. CBDT, 267 ITR 362 (MAD.) (V) CIT VS. NEYVELI LIGNITE CORPN. LTD.,(2007( 293 ITR 362 (MAD). (VI) OIL & NATURAL GAS CORPN. LIMITED VS. CITY & INDUSTRIAL DEVELOPMENT CORPORATION MAHARASHTRA LIMITED & OTHERS, (2007) 7 SCC 39. 2. WE ALSO THINK IT APPROPRIATE TO REPRODUCE THE DECIS ION OF I.T.A.T., PUNE BENCH, PUNE, IN THE CASE OF MAHARASH TRA STATE WAREHOUSING CORPORATION LIMITED VS. DY. CIT, REPORT ED IN (2009)122 TTJ (PUNE) 865, IN WHICH IT IS HELD AS U NDER :- AS A SMALL PART OF THIS JUDICIAL SYSTEM, TRIBUNAL IS DUTY BOUND TO FOLLOW THE DECISIONS OF THE HIGHER TIRES OF THIS SYSTEM. ONCE MADRAS HIGH COURT TAKES A STAND IN THE MATTER, AND THERE IS NO CONTRARY STA ND AVAILABLE FROM ANY OTHER HIGH COURT, TRIBUNAL IS -: 7 :- 7 DUTY BOUND TO FOLLOW THE SAME. THE TRIBUNAL CANNOT, AND WOULD NOT, SIT IN JUDGMENT AS TO WHETHER OR NOT THE COURTS ABOVE WERE JUSTIFIED IN TAKING THE STAND THAT THEY DID SUCH AN APPROACH WIL L LEAD TO UTTER CHAOS AND INDISCIPLINE. THE TRIBUNAL CANNOT PROCEED ON THE BASIS THAT THE DIRECTIONS OF THE SUPREME COURT ARE MERELY RECOMMENDATORY OR HAVE BEEN IGNORED BY THE APPROPRIATE AUTHORITIES. THERE IS NO WARRANT FOR SUCH A PRESUMPTION. THE TRIBUNAL HAS NO REASONS TO DOUBT THAT DIRECTIONS OF THE SUPREME COURT HAVE NOT BEEN IMPLEMENTED, BUT, IN ANY EVENT, IF A COMMITTEE HAS NOT COME INTO EXISTENCE DESPITE THE CLEAR DIRECTIONS OF SUPREME COURT TO THE EFFECT THAT SUCH A COMMITTEE BE CONSTITUTED FORTHWITH, THE REMEDY DOES NOT LIE WITH THE TRIBUNAL. OF COURSE, AS THE COUNSEL SUGGESTS, I N CASE SUCH A COMMITTEE IS NOT REALLY FORMED WHICH -: 8 :- 8 HAS THE MANDATE TO RESOLVE DISPUTE OF A STATE PSU WITH THE CENTRAL GOVERNMENT DEPARTMENT, IT WOULD INDEED BE EXPECTING THE ASSESSEE PSU TO DO THE IMPOSSIBLE ACT OF TAKING CLEARANCE FROM A COMMITTEE WHICH DOES NOT EXIST. HOWEVER, THERE HAS TO BE SOME AUTHORITATIVE EVIDENCE OF THE FACT THAT SUCH A COMMITTEE DOES NOT EXIST. THE EVIDENCE HAS TO BE SOMETHING MORE THAN BALD STATEMENTS OF THE ASSESSEE, AND PERHAPS BY WAY OF A CONFIRMATION FROM A RESPONSIBLE FUNCTIONARY IN THE STATE GOVERNMENT. IN ANY EVENT, THERE IS NO AUTHORITATIVE MATERIAL BEFORE THE TRIBUNAL THAT SUCH A COMMITTEE DOES NOT EXIST. THE ASSESSEES CASE IS THAT SINCE C EO OF THE ASSESSEE COMPANY IS NOT YET INFORMED ABOUT THE CONSTITUTION OF THE COMMITTEE, AND AS PER SUPREME COURTS DIRECTION, HE WAS SUPPOSED TO BE A MEMBER OF THIS COMMITTEE, IT IS PRESUMED THAT THE -: 9 :- 9 COMMITTEE IS NOT YET CONSTITUTED, BUT THEN THIS SUBMISSION PROCEEDS ON THE FALLACY THAT CEO OF EVERY STATE PSU IS TO BE A MEMBER OF A STANDING COMMITTEE TO RESOLVE SUCH DISPUTES. THE CEO OF A STATE PSU COMES TO BE MEMBER OF THE COMMITTEE ONLY WHEN SUCH A PSU IS PARTY TO THE DISPUTE BEFORE THE COMMITTEE. THE CEO OF THE ASSESSEE MAKES A REFERENCE OF A DISPUTE TO THE COMMITTEE, AND ADMITTEDLY NO SUCH REFERENCE IS YET MADE. NO DOUBT WHEN A JUDICIAL PRECEDENT IS LAID DOWN WITHOUT BENEFIT OF PROPER ASSISTANCE, IF THAT BE SO, MANY SUFFER UNDULY DUE TO SUCH MISHAP. THE SOLUTION, HOWEVER, IS NOT AT A LOWER LEVEL OF JUDICIAL MACHINERY. THE TRIBUNAL DOES NOT, AND CANNOT, RULE OUT THE POSSIBILITY THAT IF THE HIGH COURT HAD AN OCCASION TO CONSIDER THE ARGUMENTS, WHICH THE COUNSEL HAS ADVANCED BEFORE THIS TRIBUNAL, HIGH -: 10 :- 10 COURTS CONCLUSIONS MAY HAVE BEEN DIFFERENT, BUT THEN JUST BECAUSE PRESENTATION BEFORE THIS TRIBUNAL IS PERCEIVED TO BE MORE COMPREHENSIVE AND THOUGHTFUL, THIS TRIBUNAL CANNOT DECLINE TO FOLLOW A BINDING JUDICIAL PRECEDENT. AS FOR THE FACT THAT CO D (CABINET SECRETARIAT) HAS TURNED DOWN ASSESSEES REQUEST TO GRANT CLEARANCE, IN THIS TRIBUNALS HUMBLE UNDERSTANDING THE ASSESSEE IS A STATE GOVERNMENT UNDERTAKING, FORMED AND INCORPORATED UNDER A LEGISLATION OF THE MAHARASHTRA STATE WITH 50 PERCENT SHAREHOLDING BY THE STATE GOVERNMENT DIRECTLY, AND IT IS INDEED NOT COVERED BY THE MANDA TE OF COD (CABINET SECRETARIAT) IN TERMS OF SUPREME COURTS DIRECTIONS. THE REQUIREMENT OF THE COD COMES INTO PLAY BECAUSE OF THE SUPREME COURTS LATER DIRECTIONS FOR SEEKING COD CLEARANCE IN RESPE CT -: 11 :- 11 OF DISPUTES INVOLVING STATE GOVERNMENT AND STATE GOVERNMENT BODIES. THEREFORE, THE ASSESSEE AS ALSO THE REVENUE OUGHT TO HAVE TAKEN THE CLEARANCE OF THE CO D, AND IN THE ABSENCE OF SUCH A CLEARANCE, THE APPEALS ARE NOT MAINTAINABLE. THE APPEALS ARE DISMISSED AS NOT MAINTAINABLE THOUGH WITH A LIBERTY TO REVIVE THESE APPEALS UPON OBTAINING THE CLEARANCE OF THE COD OR WITH THE EVIDENCE THAT SUCH A COMMITTEE DOES NOT EXIST OR IS IN THE PROCESS. 4. SO, RESPECTFULLY FOLLOWING THE AFORESAID ORDER DAT ED 17 TH JULY, 2009, (SUPRA), ALL THESE APPEALS ARE DISMISSED. 5. IN THE RESULT, THE ALL THE APPEALS ARE D ISMISSED. THIS ORDER HAS BEEN PRONOUNCED ON 20 TH JULY, 2009 SD/- SD/- (BHAVNESH SAINI) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 20TH JULY, 2009. CPU* 207