Area Manager, Food Corporation of India, V. The Income-Tax Officer,

ITA 485/RJT/2006

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 2965 (ITAT-RAJKOT)
• Duration Of Justice: 4 year(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-12-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 21-12-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 12-12-2006
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L MEENA
• Assessee Lawyers: CHANDRESH PAREKH
• Keywords: TDS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI D.T. GARASIA (JM) I.T.A. NO. 485/RJT/2006 (ASSESSMENT YEAR 1999-2000) FOOD CORPORATION OF INDIA VS ITO, TDS-I C/O RK DOSHI & CO, CAS RAJKOT ADITYA CENTRE 2 ND FLOOR PHULCHHAB CHOWK, RAJKOT PAN : AAACF0365N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI CHANDRESH PAREKH RESPONDENT BY: SHRI SL MEENA O R D E R A.L. GEHLOT : THIS IS AN APPEAL FILED BY THE ASSESS EE AGAINST THE ORDER DATED 16- 10-2006 PASSED BY THE CIT(A()-II, RAJKOT FOR THE AS SESSMENT YEAR 1999-2000. 2. THE ASSESSEE IS A CENTRAL GOVERNMENT PUBLIC SECT OR UNDERTAKING AND AS SUCH WAS UNDER OBLIGATION TO OBTAIN APPROVAL OF THE COMMITTEE ON DISPUTES FOR PROSECUTING THE APPEAL BEFORE THE TRIBUNAL, AS PER THE THREE JUDGE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF ONGC VS COLLE CTOR OF CENTRAL EXCISE REPORTED IN 1995 SUPP (4) SCC 541 ORDER DATED 11 TH OCTOBER, 1991. HOWEVER, BY A SUBSEQUENT JUDGMENT DATED 7 TH JANUARY, 1994, THE APEX COURT, IN THE CASE OF ONGC VS COLLECTOR OF CENTRAL EXCISE, REPORTED IN (2004) 6 SCC 437 ANOTHER BENCH OF THREE JUDGES CLARIFIED THAT THE ORDER DATE D 11TH OCTOBER, 1991 PASSED IN ONGCS CASE WAS NOT TO EFFACE STATUTORY REMEDIES , NOR WAS THE PURPOSE OF THE CONSTITUTION OF HIGH-POWERED COMMITTEE TO TAKE AWAY THESE REMEDIES. IT WAS THEREFORE ORDERED THAT AN APPEAL COULD BE FILED WIT HOUT CLEARANCE BUT THEREAFTER AN APPLICATION SHOULD BE MADE TO THE HIGH-POWERED C OMMITTEE FOR CLEARANCE. VIDE JUDGMENT IN CIVIL APPEAL NO(S).1903 OF 2008 OR DER DATED 06-04-2010 IN S.L.P.(C) NO.31136 OF 2009 IN THE CASE OF COMMISSIO NER OF CENTRAL EXCISE VS M/S BHARAT PETROLEUM CORP. LTD HELD AS FOLLOWS: ITA NO.485/RJT/2006 2 IN OUR EXPERIENCE, THE WORKING FO THE COD HAS FAI LED. NUMEROUS DIFFICULTIES ARE EXPERIENCED BY THE COD WH ICH ARE EXPRESSED IN THE LETTER OF THE CABINET SECRETARY, D ATED 9 TH MARCH, 2010. APART FROM THE SAID LETTER, WE FIND IN NUMER OUS MATTERS CONCERNING PUBLIC SECTOR COMPANIES THAT DIFFERENT V IEWS ARE EXPRESSED BY CODF WHICH RESULTS NOT ONLY IN DELAY I N FILING OF MATTERS BUT ALSO RESULTS INTO FURTHER LITIGATION. IN THE CIRCUMSTANCES, WE FIND MERIT IN THE SUBMISS ION ADVANCED BEFORE US BY LEARNED ATTORNEY GENERAL THAT TIME HAS COME TO REVISIT THE ORDERS PASSED BY THE THREE JUDG E BENCH OF THIS COURT IN THE CASE OF OIL & NATURAL GAS COMMISSION V S. COLLECTOR OF CENTRAL EXCISE (SUPRA). ONE MORE ORDER NEEDS TO BE HIGHLIGHTED BECAUSE, IN OUR VIEW, EVEN THAT ORDER NEEDS TO BE REVISITED. IN TH E CASE OF OIL & NATURAL GAS COMMISSION VS. CITY INDUSTRIAL DEVELOPM ENT CORPORATION, MAHARASHTRA LTD. & ORS REPORTED IN (20 07) 7 SCC 39, A DIVISION BENCH OF THIS COURT HAS HELD THAT EVEN A CONTROVERSY BETWEEN THE CENTRAL AND STATE GOVERNMENTS AS WELL A S THEIR COMPANIES WOULD ALSO REQUIRE AN NOC FROM COD. FOR THE AFORE-STATED REASONS, WE ARE OF THE VIEW T HAT THE ABOVE JUDGMENTS NEED RECONSIDERATION. WE WOULD HAV E DONE SO. HOWEVER, WE ARE UNABLE TO DO SO BECAUSE THE JUDGMEN TS IN THE CASE OF ONGC (SUPRA) HAVE BEEN DELIVERED BY BENCHES OF THREE JUDGES OF THIS COURT. IN THE CIRCUMSTANCES, THE REGISTRY IS DIRECTED TO PLACE THESE MATTERS BEFORE HONBLE THE CHIEF JUSTICE OF INDIA F OR APPROPRIATE DIRECTIONS. FROM THE ABOVE JUDGMENT OF THE APEX COURT DATED 06- 04-2010 WE FIND THAT THE TWO JUDGES BENCH OF THE APEX COURT OBSERVED THAT TH E EARLIER JUDGMENTS NEED RECONSIDERATION AND DIRECTED THE REGISTRY TO PUT UP THE MATTER BEFORE HONBLE THE CHIEF JUSTICE OF INDIA. THUS, THE EARLIER JUDGMENT S OF THE APEX COURT ARE STILL EFFECTIVE TILL THEY ARE NOT RECONSIDERED. WE, THER EFORE, FOLLOW THE EARLIER JUDGMENTS OF THE APEX COURT. ACCORDINGLY WE FIND T HAT THOUGH AN ASSESSEE, A PUBLIC SECTOR UNDERTAKING COULD FILE AN APPEAL WITH OUT CLEARANCE BUT THEREAFTER AN APPLICATION SHOULD BE MADE TO THE HIGH-POWERED COMM ITTEE FOR CLEARANCE. BUT, AT ANY EVENT, THE ASSESSEE IS UNDER OBLIGATION TO G ET THE APPROVAL FROM THE COD ITA NO.485/RJT/2006 3 BEFORE PROSECUTING THE APPEAL. IN THE INSTANT CASE , THE LD.AR HAS FAIRLY ADMITTED THAT THE NO SUCH APPROVAL IS RECEIVED SO FAR. IN T HE CIRCUMSTANCES WE DISMISS THE APPEAL FOR WANT OF COD APPROVAL. HOWEVER, IF THE A SSESSEE IS ABLE TO OBTAIN THE COD APPROVAL AT A LATER STAGE AND IF SO ADVISED, TH E ASSESSEE CAN MOVE THIS TRIBUNAL FOR RECALL OF THIS ORDER AND HEARING THE A PPEAL ON MERIT. 3. IN THE RESULT, THE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23-12-2010. SD/- SD/- (D.T. GARASIA) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT, DT : 23 RD DECEMBER, 2010 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-II, RAJKOT 4. THE CIT-I, RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT