.Dy. CIT, Pune V. Bank of Maharashtra, Pune

MA 1/PUN/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0375 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 20-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S K SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER MA NOS. 1 & 2/PN/2013 (ARISING OUT OF ITA NOS. 609 & 610/PN/2007) (ASSESSMENT YEARS: 2002-03 & 2003-04) DY. COMMISSIONER OF INCOME TAX CIRCLE 1(1), PUNE. . APPELLANT VS. BANK OF MAHARASHTRA 3 RD FLOOR, LOKMANGAL SHIVAJINAGAR, PUNE 411 005 PAN : AACCB 0774 B . RESPONDENT APPELLANT BY : MR. SUNIL GANOO RESPONDENT BY : MR. S.K. SINGH DATE OF HEARING : 22-03-2013 DATE OF PRONOUNCEMENT : 10-04-2013 ORDER PER G. S. PANNU, AM THESE CAPTIONED MISCELLANEOUS APPLICATIONS HAVE BE EN FILED BY THE REVENUE UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), SEEKING REVIVAL OF ITS APPEALS IN ITA NOS. 609 & 61 0/PN/2007 FOR THE ASSESSMENT YEARS 2002-03 & 2003-04 RESPECTIVELY, WH ICH WERE DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 29.08.2008. THE TRIBU NAL HAD DISMISSED THE APPEALS AS NON MAINTAINABLE FOR WANT OF CLEARANCE O F THE COMMITTEE ON DISPUTES (COD). THE PENULTIMATE PARAGRAPH IN THE OR DER OF THE TRIBUNAL DATED 29.08.2008 (SUPRA) WHICH IS RELEVANT IS REPRODUCED HEREIN :- 4. IN THESE CIRCUMSTANCES, WE DEEM IT FIT AND PROP ER TO DISMISS THE APPEALS AS NON MAINTAINABLE FOR WANT OF CLEARAN CE OF THE COMMITTEE ON DISPUTES. HOWEVER, IF AND WHEN THE REVENUE RECEIVES THE SAID APPROVAL, IT WILL BE OPEN TO THE REVENUE TO APPROACH THIS TRIBUNAL AN D PRAY FOR RESTORATION OF APPEALS. MA NOS. 1 & 2/PN/2013 BANK OF MAHARASHTRA A.YS. 2002-03 & 2003-04 2. BY WAY OF THE PRESENT APPLICATIONS, THE REVENUE CONTENDS THAT THE CLEARANCE FROM THE COD IS NO MORE REQUIRED IN VIEW OF THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF ELECTRONICS CO RPORATION OF INDIA VS. UNION OF INDIA AND OTHERS [2011] 332 ITR 58 (SC). I N THE PRESENT CASE, SUBSEQUENT TO THE ORDER OF THE TRIBUNAL DATED 29.08 .2008 (SUPRA) THE COD IN TERMS OF ITS MEETINGS HELD ON 28.04.2009 AND 19.11. 2009, COPIES OF WHICH HAVE BEEN PLACED ON RECORD, HAD REFUSED TO GRANT PE RMISSION TO THE REVENUE FOR THE ASSESSMENT YEARS 2002-03 & 2003-04 RESPECTI VELY TO PREFER THE CAPTIONED APPEALS BEFORE THE TRIBUNAL. IT IS ALSO N OT IN DISPUTE THAT THE REVENUE ACCEPTED THE SAID DECISION OF COD AND FURTH ER EVEN WITH REGARD TO THE ORDER OF THE TRIBUNAL DATED 29.08.2008 (SUPRA), THE REVENUE DID NOT QUESTION OR FILE ANY APPEAL BEFORE THE HIGH COURT. 3. IN THE AFORESAID BACKGROUND, THE LEARNED CIT(DR) APPEARING FOR THE REVENUE HAS NOW CONTENDED IN SUPPORT OF THE PRESENT APPLICATIONS THAT THE DECISION OF THE COD REFUSING TO GRANT PERMISSION TO THE REVENUE TO PROSECUTE THE CAPTIONED APPEALS IS LIABLE TO IGNORED IN VIEW OF THE RECENT DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ELECTRONICS CO RPORATION OF INDIA (SUPRA). 4. ON THE OTHER HAND, THE LEARNED REPRESENTATIVE AP PEARING FOR THE ASSESSEE POINTED OUT THAT THE JUDGEMENT OF THE HON BLE SUPREME COURT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA (SUPRA) WO ULD NOT HELP THE CASE OF THE REVENUE FOR THE REASON THAT THE COD HAD ALREADY REF USED TO GRANT PERMISSION TO THE REVENUE TO PROSECUTE THE AFORESAID APPEALS A ND IN THAT LIGHT THE CAPTIONED APPEALS CANNOT BE NOW REOPENED. IN SUPPOR T OF RELIANCE HAS BEEN PLACED ON THE JUDGEMENT OF THE HONBLE DELHI HIGH C OURT IN THE CASE OF CIT VS. GAS AUTHORITY OF INDIA LTD. [2012]-(IT2)-GJX-0857-D EL VIDE ITA NO. 86 OF 2009 DATED 13.02.2012 A COPY OF WHICH HAS BEEN PLAC ED ON RECORD. 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. THE FACTS RELEVANT TO ADJUDICATE THE PRESENT CONTROVERSY HAVE BEEN SUC CINCTLY NOTED BY US IN THE MA NOS. 1 & 2/PN/2013 BANK OF MAHARASHTRA A.YS. 2002-03 & 2003-04 EARLIER PARAGRAPHS AND ARE NOT IN DISPUTE. OSTENSIB LY, THE TRIBUNAL HAD DISMISSED THE APPEALS OF THE REVENUE VIDE ITS ORDER DATED 29.08.2008 FOR WANT OF CLEARANCE OF THE COD. SUBSEQUENTLY, THE COD VIDE ITS DECISIONS DATED 28.04.2009 AND 19.11.2009 DECLINED PERMISSION TO TH E REVENUE TO PROSECUTE THE CAPTIONED APPEALS FOR THE ASSESSMENT YEARS 2002 -03 & 2003-04 RESPECTIVELY. 6. THE AFORESAID COD WAS SET UP AS A CONSEQUENCE OF THE DIRECTION OF THE HONBLE SUPREME COURT IN OIL & NATURAL GAS COMMISSI ON VS. COLLECTOR OF CENTRAL EXCISE [ 1992] SUPP (2) SCC 432 AND SUBSEQUENT DECISIONS REP ORTED IN 116 STC 418 (SC) AND 6 SSC 437 (SC). HOWEVER, THE AFORESAID DIRECTIONS WERE RECALLED BY THE HONBLE SUPREME COURT IN ITS JUDGEM ENT DATED 17.02.2011 IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD. ( SUPRA). THE RECALLING OF ITS EARLIER DIRECTIONS BY THE HONBLE SUPREME COURT HAS PROMPTED THE REVENUE TO PLEAD THAT THE APPEALS BE RESTORED FOR ADJUDICATION ON MERITS SINCE THE COD PERMISSION IS NO LONGER REQUIRED. CLEARLY THE IMPLI CATION OF THE ARGUMENT SET UP BY THE REVENUE IS TO THE EFFECT THAT THE REFUSAL BY THE COD IN THE PRESENT CASE TO GRANT PERMISSION TO THE REVENUE TO PROSECUT E THE APPEALS BEFORE THE TRIBUNAL BE IGNORED IN VIEW OF THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD. ( SUPRA). AN IDENTICAL CONTROVERSY CAME UP BEFORE THE HONBLE DELHI HIGH I N THE CASE OF GAS AUTHORITY OF INDIA LTD. (SUPRA) WHEREIN THE FOLLOWI NG DISCUSSION IS WORTHY OF NOTICE AS UNDER :- WE ARE NOT INCLINED TO ACCEPT THE CONTENTION OF T HE REVENUE. THE SUPREME COURT IN ELECTRONICS CORPORATION OF IND IA LTD. (SUPRA) HAS HELD THAT THE COMMITTEE OF DISPUTES AS A MECHANISM, HAD FAILED AND WAS CAUSING/LEADING TO DELAY IN LITIGATION. IT HAD OUTL IVED ITS UTILITY. THE COMMITTEE OF DISPUTES WAS ONLY TO DECIDE, WHETHER OR NOT GOVE RNMENT AUTHORITY/PUBLIC SECTOR UNDERTAKING SHOULD BE PERMITTED TO PROCEED W ITH THE APPELLATE PROCEEDINGS. IN THE PRESENT CASE, IN FACT, THE REVE NUE HAD SOUGHT PERMISSION, BUT THE SAME WAS DECLINED IN NOVEMBER, 2009. THE SA ID DECISION WAS ACCEPTED BY THE REVENUE. WE DO NOT THINK THAT ELECT RONICS CORPORATION OF MA NOS. 1 & 2/PN/2013 BANK OF MAHARASHTRA A.YS. 2002-03 & 2003-04 INDIA LTD. (SUPRA) CAN APPLY TO THE FACTS OF THE PR ESENT CASE AS THE REQUEST FOR PERMISSION TO FILE APPELLATE PROCEEDINGS WAS DECLIN ED BY THE COMMITTEE OF DISPUTES. THE DECISION TAKEN BY THE COMMITTEE OF DI SPUTES DATED 12 TH NOVEMBER, 2009, IS NOT UNDONE AND HAS NOT BECOME A NULLITY. IF THE CONTENTION OF THE REVENUE IS ACCEPTED, THEN IN ALL CASE IN WHICH THE COMMITTEE OF DISPUTES HAD DECLINED PERMISSION TO PR EFER APPEAL/LEGAL PROCEEDINGS, DURING THE PERIOD FROM 1994 ONWARDS, C AN NOW BE REOPENED. THE MATTERS WHICH HAVE BEEN CONSIDERED AND DECIDED BY THE COMMITTEE OF DISPUTES AND PERMISSION SPECIFICALLY DENIED CANNOT BE REOPENED, IN THE MANNER SUGGEST AND SUBMITTED. 7. A PERUSAL OF THE AFORESAID REVEALS THAT AS PER THE HONBLE DELHI HIGH COURT, THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD. (SUPRA) WOULD NOT APPLY T O A FACT SITUATION WHERE THE PERMISSION TO PROSECUTE CERTAIN APPEAL PROCEEDINGS STOOD DECLINED BY THE COD. ACCORDING TO THE HONBLE HIGH COURT IN SUCH A FACT SITUATION, THE DECISION TAKEN BY THE COD TO DENY PERMISSION TO PROSECUTE AN APPEAL IS NOT RENDERED A NULLITY. THEREFORE, IN THE BACKGROUND OF THE AFOR ESAID LEGAL POSITION LAID DOWN BY THE HONBLE DELHI HIGH COURT IN THE PRESENT CASE WHERE THE COD HAD DECLINED PERMISSION TO THE REVENUE TO PREFER THE CA PTIONED APPEAL BEFORE THE TRIBUNAL IN THE YEAR 2009, THE SAME CANNOT BE NOW R EOPENED. THE MATTERS WHICH HAVE BEEN CONSIDERED AND DECIDED BY THE COD A ND THE PERMISSION SPECIFICALLY REFUSED ARE NOT LIABLE TO BE REOPENED IN THE LIGHT OF THE AFORESAID PRIORITY OF REASONING LAID DOWN BY THE HONBLE DELH I HIGH COURT. 8. IN VIEW OF THE ABOVE DISCUSSION, WE DECLINE TO I NTERFERE WITH THE EARLIER ORDER OF THE TRIBUNAL DATED 29.08.2008 (SUPRA) ON T HE BASIS OF THE PRESENT APPLICATIONS PREFERRED BY THE REVENUE UNDER SECTION 254(2) OF THE ACT. ACCORDINGLY, THE CAPTIONED MISCELLANEOUS APPLICATIO NS PREFERRED BY THE REVENUE ARE DISMISSED. MA NOS. 1 & 2/PN/2013 BANK OF MAHARASHTRA A.YS. 2002-03 & 2003-04 9. IN THE RESULT, BOTH CAPTIONED MISCELLANEOUS APPL ICATIONS, FILED BY THE REVENUE, ARE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 10 TH APRIL, 2013 SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 10 TH APRIL, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT, PUNE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// PRIVATE SECRETARY I.T.A.T., PUNE