Uttranchal Jal Vidyut Nigam Ltd, V. ACIT circle 2,

ITA 4273/DEL/2007

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9724 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 22-09-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 22-10-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; Revised return
• Section: 274

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H DELHI BEFORE SHRI K.G. BANSAL AND SHRI GEORGE MATHAN I.T.A. NO. 4110(DEL)/2007 ASSESSMENT YEAR: 2003-04 ASSTT.COMMISSIONER OF M/S UTTARA NCHAL JAL VIDYUT INCOME-TAX, CIRCLE-2, VS. NIGAM LTD. , MAHARANI BAGH, DEHRADUN. GM S ROAD, DEHRADUN. ITA NO. 4273(DEL)/2007 ASSESSMENT YEAR: 2003-04 M/S UTRAANCHAL JAL VIDYUT ASSTT. CO MMISSIONER OF INCOME NIGAM LTD., DEHRADUN. VS. TAX, CIR CLE-2, DEHRADUN. (APPELLANT) (RESPONDENT) DEPARTMENT BY : SHRI V.K. TIWARI, CIT, DR ASSESSEE B Y : MS. ARTI SAINI, ADVOCATE ORDER PER K.G. BANSAL : AM THESE CROSS APPEALS OF THE REVENUE AND THE AS SESSEE EMANATE FROM THE ORDER OF CIT(APPEALS)-I, DEHRADUN, PA SSED ON 14.8.2007 IN APPEAL NO. 57/DDN/06-07, AND THEY PERTAIN TO ASSESSMENT YEAR 2003- 04. THE REVENUE HAS TAKEN UP THREE SUBSTANT IVE GROUNDS IN THE APPEAL, WHICH READ AS UNDER:- (I) WHETHER ON THE FACTS AND IN THE CIR CUMSTANCES OF THE CASE, THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING THE AO TO CONSIDER THE REVISED RETURN FILED ON 29.3.2005. ITA NOS. 4110&4273(DEL)/2007 2 (II) THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE AO WAS NOT JUSTIFIED IN REJECTING THE BOOKS OF ACCOUNT FOR THE REASON THAT THE ASSESSEE HAD FURNISHED AN OTHER COMPUTATION BASED ON PROVISIONAL ACCOUNTS, WITH THE REVISE D RETURN. (III) THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN HOLDING THAT THE ASSESSEE IS ENTITLED TO DEPRECIATION AND THAT THE AO WAS NOT JUSTIFIED IN HIS ACTION IN DENYING THE DEPRE CIATION. ON THE OTHER HAND, THE ASSESSEE HAS TAKEN U P FOUR SUBSTANTIVE GROUNDS IN APPEAL, WHICH READ AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. COMMISSIONER OF INCOME-TAX (APPEAL) HAS ERRED IN LAW: (I) IN NOT ACCEPTING THE AUDITED BALANCE-SHEET DULY AUDITED BY THE STATUTORY AUDITORS FILED BY THE APPELLANT BEFORE THE LD. COMMISSIONER OF INCOME-TAX (APPEAL) AND ALSO BEFORE THE ASSESSING OFFICER. (II) IN NOT ADJUDICATING THE CLAIM OF THE APPELL ANT IN RESPECT OF IMPROPER OPPORTUNITY PROVIDED TO THE APPELLANT AT THE TIME OF ASSESSMENT TO PROVE AND JUSTIFY ITS RETURN OF INCOME. (III) IN DISALLOWING THE CLAIM OF THE APPELLANT WITH REGARD TO INTEREST AMOUNTING TO RS. 44.50 CRORE (I.E., INTEREST PAYABLE TO CONTRACTOR RS. 47,78,62,518/- LESS RS. 3,28,16,458/- INTEREST RECEIVABLE FROM CONTRACTOR) AS A RESULT OF DRB AWARD. (IV) IN NOT ACCEPTING THE RECOGNITION OF INCO ME @ 37.20 PER UNIT TOWARDS SALE OF POWER TO UPCL A ND REJECTING THE CLAIM OF THE APPELLANT AMOUNTING TO RS. ITA NOS. 4110&4273(DEL)/2007 3 66.56 CRORES CREDITED OT RMF FUND (THOUGH T HE ACTUAL AMOUNT IS RS. 65.91 CRORES) IN THE AUDITED ACCOUNTS, AS PER UERC ORDER DATED 16.12.2004. 2. IN THE COURSE OF HEARING BEFORE US, IT WAS COMMON GROUND OF THE RIVAL PARTIES THAT THEY HAVE NOT RECEIVED APPROVAL OF THE COD TILL DATE. IT WAS ALSO THE COMMON GROUND THAT IN ABSENCE THEREOF, THE APPEALS ARE LIABLE TO BE DISMISSED IN LIMINE, IN VIEW OF THE ORDER OF C BENCH OF DELHI TRIBUNAL IN THE CASE OF THE ASSESSEE IN ITA NOS. 3274 & 3275(DEL)/2007, DATED 21.8.2009, A COPY OF WHIC H WAS PLACED BEFORE US. THE ISSUE OF THE NECESSITY OF OBTAINING APPROVAL OF THE COD HAS BEEN DISCUSSED BY THE TRIBUNAL IN PARAGRAPHS 4 AND 5 OF THE ORDER, WHICH ARE REPRODUCED BELOW FOR READY REFERENCE:- 4. THE ASSESSEE VIZ., UTTARANCHAL JAL VIDYU T NIGAM LTD., IS A 100% STATE OWNED ENTERPRISE, WHICH WAS INC ORPORATED ON 12.2.2001, AFTER THE FORMATION OF UTTRANCHAL. T HE PRESENT APPEAL OF THE REVENUE AND THE CROSS OBJECTION OF THE ASSESSEE HAVE BEEN FILED WITHOUT OBTAINING ANY APPROVAL FROM HIGH POWERED COMMITTEE ON DISPUTES. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DELHI TOURISM TRAN SPORTATION DEVELOPMENT CORPORATION (DELHI) (2005) 274 ITR 35 , AND HONBLE RAJASTHAN HIGH COURT IN THE CASE OF STATE OF RAJASTHAN VS. ITAT (2003) 259 ITR 686, AND MA DRAS HIGH COURT IN TAMILNADU WAREHOUSING CORPORATION VS. DEP UTY CIT (2009) 309 ITR 252 (MAD.) HAS TAKEN A VIE W THAT IN THE ABSENCE OF A CLEARANCE BY THE HIGH POWERED C OMMITTEE THE APPEAL BETWEEN RELATING TO THE DISPUTE BETWEEN THE INCOME- TAX DEPARTMENT AND PUBLIC SECTOR UNDERTAKING, AN D APPROVAL ITA NOS. 4110&4273(DEL)/2007 4 BY A DIRERRANT COMMITTEE ON DISPUTES WITH STATE P ARTICIPATION IS NECESSARY, THE APPEAL WAS NOT REQUIRED TO BE ENTERTAINED AT THIS STAGE. 5. IN VIEW OF THE FACT THAT THESE INSTANT APPEALS AND CROSS OBJECTIONS HAVE BEEN FILED WITHOUT OBTAINING AP PROVAL FROM COD, WE ARE INCLINED TO DISMISS THE APPEALS AN D CROSS OBJECTIONS FILED BY THE REVENUE AND ASSESSEE RE SPECTIVELY, AS NOT MAINTAINABLE. HOWEVER, BOTH THE PARTIES SH ALL BE AT LIBERTY TO MOVE AN APPLICATION BEFORE THIS TRIB UNAL FOR SETTING ASIDE THIS ORDER AND RESTORE THESE APPEALS AND CROSS OBJECTIONS TO THEIR FILE, PROVIDED A COD APPROVAL TO THAT EFFECT, IN THE MEAN TIME IS OBTAINED BY THE RESPECTIVE PARTIES, AND THE APPLICATION TO BE SO FILED BY THE REVENUE OR BY THE ASSESSEE, AS THE CASE MAY BE, SHALL BE CONSIDERED AND DISPOSED OFF AS PER LAW. WE ORDER ACCORDIN GLY. 3. THE TRIBUNAL HAS CITED THE DECISIONS OF HONB LE DELHI HIGH COURT, RAJASTHAN HIGH COURT AND MADRAS HIGH COURT IN SUPP ORT OF THE PROPOSITION THAT THE APPEAL CANNOT BE PROCEEDED WITH BEFORE OBTAINING THE APPROVAL OF THE COD. WE ARE ALSO AWARE THAT THE DECI SION OF HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF ANDHRA PRADESH POWER GENERATION CORPORATION LTD. VS. ACIT, (2006) 280 ITR 388 , IS IN CONTRADICTION WITH THE AFORESAID DECISIONS. WE FIND THAT THE ASSESSEE FALLS IN THE JURISDICTION OF HONBLE ALLAHABAD HIGH COURT. N ONE OF THE PARTIES HAS CITED ANY CASE IN THIS MATTER WHICH HAS BEEN DECIDED BY HONBLE ALLAHABAD HIGH COURT. THIS BENCH IS SITTING IN THE JURISDICTION OF DELHI HIGH COURT, WHOSE DECISION IS THAT THE APPEAL CANNOT BE PROCEEDED ITA NOS. 4110&4273(DEL)/2007 5 WITH WITHOUT THE APPROVAL. RESPECTFULLY FOLLOW ING THIS DECISION, IT IS HELD THAT THE RIVAL PARTIES OUGHT TO HAVE OBTAINE D APPROVAL OF THE COD FOR PROSECUTING THE APPEALS. IN ABSENCE THER EOF, THE APPEALS ARE DISMISSED IN LIMINE WITH THE LIBERTY TO THE PARTIES TO MOVE APPLICATION, IF ADVISED, ON RECEIPT OF THE APPROVAL FOR RESTORATION OF THE APPEALS. 4. IN THE RESULT, THE APPEALS ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 22 .9.2009 SOON AFTER THE COMPLETION OF THE HEARING. SD/- SD/- (GEORGE MATHAN) (K.G. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE OF ORDER: 22.9.2009. SPSATIA COPY OF THE ORDER FORWARDED TO:- UTTARANCHAL JAL VIDYUT NIGAM LTD., DEHRADUN. ASSTT.CIT, CIRCLE 2, DEHRADUN. CIT CIT(A) THE DR, ITAT, NEW DELHI. ASSISTANT REGIST RAR.