DCIT, Circle - 6, Kolkata, Kolkata V. UCO Bank, Kolkata

ITA 548/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2478 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2010
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 17-03-2010
• Court: TRIBUNAL
• Department Lawyers: B N VERMA
• Assessee Lawyers: ATUL PODDAR
• Keywords: Bad and doubtful debts

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA ( (( ( ) )) ) . .. . . . . . , ,, , ! ! ! ! '#$ '#$ '#$ '#$ . .. .% %% % . . . . &' &' &' &', , , , () () () () [BEFORE HONBLE SHRI G. D. AGRAWAL, VP & HONBLE SR I D. K. TYAGI, JM] $* $* $* $* / ITA NO. 548 /KOL/2010 +, #-. +, #-. +, #-. +, #-./ // / ASSESSMENT YEAR : 2006-07 DEPUTY COMMISSIONER OF INCOME-TAX, -VS- UCO BANK CIRCLE-6, KOLKATA. (PA NO. AAACU 3561B) (01 / APPELLANT ) (2&01/ RESPONDENT ) FOR THE APPELLANT: / SHRI B. N. VERMA FOR THE RESPONDENT: / SHRI ATUL PODDAR (%3 / ORDER PER D. K. TYAGI, JM ( . . . . % %% % . . . . &' &' &' &', () ) THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AG AINST THE ORDER OF THE LD. CIT(A), KOLKATA DATED 29.12.2009 FOR THE ASSESSMEN T YEARS 2006-07 ON THE FOLLOWING GROUNDS : 1. LD. CIT(A) HAS ERRED BOTH ON FACTS AND IN LAW I N ALLOWING BAD DEBTS WRITTEN OFF U/S. 36(1)(VII) AMOUNTING TO RS.252,70,76,061/- WITHOUT CONSIDERING THAT FOR ALLOWING BAD DEBT U/S. 36(1)(VII), THE ACTUALLY WRITTEN OFF AMOU NT IS TO BE ADJUSTED WITH THE CREDIT BALANCE OF UNADJUSTED PROVISION ALLOWED U/S. 36(1)( VIIA)(A), AS STANDING AT THE BEGINNING OF THE YEAR. 2. WITHOUT PREJUDICE TO GROUND NO. 1 LD. CIT(A) HAS ERRED IN HIS DECISION BY NOT CONSIDERING THE CONDITIONS LAID DOWN IN SEC. 36(2)( V) OF THE ACT FOR ALLOWANCE OF BAD DEBT U/S. 36(1)(VII). 2. THE APPEAL OF THE REVENUE IS LATE BY FOUR DAYS A ND A CONDONATION PETITION HAS BEEN FILED BY THE DEPARTMENT. AFTER HEARING BOTH T HE SIDES AND PERUSING THE CONDONATION PETITION, WE CONDONE THE DELAY OF FOUR DAYS IN FILI NG THE APPEAL AND THE SAME HAS BEEN TAKEN UP FOR HEARING. 3. THE REVENUE/APPELLANT IN THIS CASE IS A GOVERNME NT DEPARTMENT. IN TERMS OF HONBLE SUPREME COURTS DECISION IN THE CASE OF ONG C VS. COLLECTOR OF CENTRAL EXCISE (104 CTR 31), WHENEVER THERE IS A DISPUTE BETWEEN A GOVERNMENT DEPARTMENT AND A PUBLIC SECTOR UNDERTAKING, IT IS ESSENTIAL THAT THE ASSESSEE/APPELLANT, AS THE CASE MAY BE, TO OBTAIN THE PERMISSION OF THE HIGH POWERED CO MMITTEE (HPC). HOWEVER, IN THIS 2 PRESENT CASE, NO SUCH CLEARANCE FROM THE HIGH POWER ED COMMITTEE HAS BEEN OBTAINED BY THE APPELLANT FOR PURSUING THE APPEAL BEFORE THE TRIBUNAL. 4. THE HONBLE APEX COURT IN MAHANAGAR TELEPHONE NI GAM LTD. V. CHAIRMAN, CBDT (2004) 267 ITR 647 AT PAGE 652 HAS AGAIN POINT ED OUT AS UNDER :- UNDOUBTEDLY, THE RIGHT TO ENFORCE A RIGHT IN COURT OF LAW CANNOT BE EFFACED. HOWEVER, IT MUST BE REMEMBERED THAT COURTS ARE OVER-BURDENED WITH A LARGE NUMBER OF CASES. THE MAJORITY OF SUCH CASES PERTAIN TO GOVERNMENT DEPART MENTS AND/OR PUBLIC SECTOR UNDERTAKINGS. AS IS STATED IN CHIEF CONSERVATOR OF FORESTS CASE (2003) 3 SCC 472 IT WAS NOT CONTEMPLATED BY THE FRAMERS OF THE CONSTITU TION OR THE CIVIL PROCEDURE CODE THAT TWO DEPARTMENTS OF A STATE OR UNION OF INDIA A ND/OR A DEPARTMENT OF THE GOVERNMENT AND A PUBLIC SECTOR UNDERTAKING FIGHT A LITIGATION IN A COURT OF LAW. SUCH A COURSE IS DETRIMENTAL TO PUBLIC INTEREST AS IT ENTA ILS AVOIDABLE WASTAGE OF PUBLIC MONEY AND TIME. THESE ARE ALL LIMBS OF THE GOVERNMENT AND MUST ACT IN CO-ORDINATION AND NOT CONFRONTATION. THE MECHANISM SET UP BY THIS COURT I S NOT, AS SUGGESTED BY MR. ANDHYARUJINA, ONLY TO CONCILIATE BETWEEN GOVERNMENT DEPARTMENTS. IT IS ALSO SET UP FOR PURPOSES OF ENSURING THAT FRIVOLOUS DISPUTES DO NOT COME BEFORE COURTS WITHOUT CLEARANCE FROM THE HIGH POWERED COMMITTEE. IF IT CA N, THE HIGH POWERED COMMITTEE WILL RESOLVE THE DISPUTE. IF THE DISPUTE IS NOT RES OLVED THE COMMITTEE WOULD UNDOUBTEDLY GIVE CLEARANCE. HOWEVER, THERE COULD ALSO BE FRIVOL OUS LITIGATION PROPOSED BY A DEPARTMENT OF THE GOVERNMENT OR A PUBLIC SECTOR UND ERTAKING. THIS COULD BE PREVENTED BY THE HIGH POWERED COMMITTEE. IN SUCH CASES THERE IS NO QUESTION OF RESOLVING THE DISPUTE. THE COMMITTEE ONLY HAS TO REFUSE PERMISSIO N TO LITIGATE. NO RIGHT OF THE DEPARTMENT/PUBLIC SECTOR UNDERTAKING IS AFFECTED IN SUCH A CASE. THE LITIGATION BEING A FRIVOLOUS NATURE MUST NOT BE BROUGHT TO COURT. TO B E REMEMBERED THAT IN ALMOST ALL CASES ONE OR THE OTHER PARTY WILL NOT BE HAPPY WITH THE DECISION OF THE HIGH POWERED COMMITTEE. THE DISSATISFIED PARTY WILL ALWAYS CLAIM THAT ITS RIGHTS AFFECTED, WHEN IN FACT, NO RIGHT IS AFFECTED. THE COMMITTEE IS CONSTITUTED OF HIGHLY PLACED OFFICERS OF THE GOVERNMENT, WHO DO NOT HAVE AN INTEREST IN THE DISP UTE, IT IS THUS EXPECTED THAT THEIR DECISION WILL BE FAIR AND HONEST. EVEN IF THE DEPAR TMENT/ PUBLIC SECTOR UNDERTAKING FINDS THE DECISION UNPALATABLE, DISCIPLINE REQUIRES THAT THEY ABIDE BY IT. OTHERWISE THE WHOLE PURPOSE OF THIS EXERCISE WILL BE LOST AND EVERY PAR TY AGAINST WHOM THE DECISION IS GIVEN WILL CLAIM THAT THEY HAVE BEEN WRONGED AND THAT THE IR RIGHTS ARE AFFECTED. THIS SHOULD NOT BE ALLOWED TO BE DONE. 5. IN THE ABSENCE OF THE CLEARANCE FROM THE HIGH PO WERED COMMITTEE, THE APPEAL IS NOT REQUIRED TO BE ENTERTAINED AT THIS STAGE AND, T HEREFORE, WE DISMISS THE APPEAL AS NOT MAINTAINABLE IN LAW. HOWEVER, IT WILL BE OPEN FOR T HE APPELLANT TO FILE AN APPLICATION FOR REVIVAL OF THE APPEAL AFTER CLEARANCE IS OBTAINED. THE APPEAL IS DISMISSED ACCORDINGLY. 6. IN THE RESULT, THE APPEAL STANDS DISMISSED. 7. THE ORDER WAS ANNOUNCED IN THE OPEN COURT. SD/- SD/- . .. . . . . . , , , , ! ! ! ! . . . . % %% % . . . . &' &' &' &', , , , () (G. D. AGRAWAL) (D. K. TYAGI) VICE PRESIDENT JUDICIAL MEMBER ( (( (4 4 4 4) )) ) DATED :14TH JULY, 2010 3 #56 +7 +8# JD.(SR.P.S.) (%3 9 2++: %:-;- COPY OF THE ORDER FORWARDED TO: 1. 01 /APPELLANT DCIT, CIRCLE-6, KOLKATA 2. 2&01 /UCO BANK, 10, B. T. M. SARANI, KOLKATA-1. 3. +3 / THE CIT, KOLKATA 4. +3 ()/ THE CIT(A), KOLKATA 5. #=+' 2+ / DR, KOLKATA BENCHES, KOLKATA &: 2+/ TRUE COPY, (%3>/ BY ORDER, $ /DEPUTY REGISTRAR .