Bharat Overseas Bank, CHENNAI V. ACIT, CHENNAI

MA 151/CHNY/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6815 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 08-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Bad and doubtful debts

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER, AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER .. M.P. NO. 151/MDS/2011 (IN I.T.A. NO. 96/MDS/2010) ASSESSMENT YEAR : 2006-07 M/S BHARAT OVERSEAS BANK (SINCE TAKEN OVER BY INDIAN OVERSEAS BANK), ACCOUNTS DEPARTMENT, 763, ANNA SALAI, CHENNAI 600 002. PAN : AAACB1374M (PETITIONER) V. THE ADDITIONAL COMMISSIONER OF INCOME TAX, COMPANY RANGE I, CHENNAI 600 034. (RESPONDENT) PETITIONER BY : SHRI C. NARESH RESPONDENT BY : SHRI SHAJI P. JACOB DATE OF HEARING : 16.09.2011 DATE OF PRONOUNCEMENT: 23.09.2011 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THROUGH THIS MISCELLANEOUS PETITION, GRIEVANCE RAI SED BY THE ASSESSEE IS THAT ITS GROUND REGARDING ALLOWANCE OF RURAL BAD DEBTS WRITE OFF ` 2,04,096/- BEING REMITTED BACK TO THE ASSESSING OF FICER WAS DISMISSED BY THIS TRIBUNAL SINCE COMMITTEE ON D ISPUTES (COD) M.P. NO. 151/MDS/11 2 HAD DECLINED TO PERMIT THE ASSESSEE TO PURSUE IT BE FORE THIS TRIBUNAL. AS PER THE ASSESSEE, IN VIEW OF HON'BLE APEX COURT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD. V. UNION OF I NDIA (322 ITR 58), NO SUCH APPROVAL WAS REQUIRED FROM COD ANY MORE AND HENCE, THE ISSUE REQUIRED TO BE ADJUDICATED ON MERITS BY THIS TRIBUNAL. 2. WHEN THE MATTER CAME UP BEFORE US, LEARNED A.R. SUBMITTED THAT THOUGH THE COMMITTEE ON DISPUTES (COD) HAD DEN IED IT PERMISSION TO PURSUE THIS ISSUE BEFORE THIS TRIBUNA L, BY VIRTUE OF DECISION OF HON'BLE APEX COURT IN THE CASE OF ELECT RONICS CORPORATION OF INDIA LTD. V. UNION OF INDIA (322 ITR 58), NO AP PROVAL FROM COD WAS REQUIRED FOR PURSUING AN APPEAL BY A PUBLIC SEC TOR UNDERTAKING, BEFORE THIS TRIBUNAL OR ANY HIGHER FORUMS. LEARNED A.R. SUBMITTED THAT DEPARTMENT APPEAL ON SIMILAR ISSUE FOR THE SAM E YEAR HAS BEEN ALLOWED BY THE COD TO BE PURSUED BEFORE THIS TRIBUN AL. AS PER LEARNED A.R., IN VIEW OF THE DECISION MENTIONED SUP RA, ASSESSEE WAS ENTITLED TO RAISE THIS ISSUE NOW. 3. LEARNED D.R. STRONGLY OPPOSING THE ATTEMPT OF LE ARNED A.R. TO TAKE UP AN ISSUE ON WHICH COD HAD SPECIFICALLY NOT GIVEN PERMISSION, SUBMITTED THAT THE DECISION OF HON'BLE APEX COURT I N THE CASE OF M.P. NO. 151/MDS/11 3 ELECTRONICS CORPORATION OF INDIA (SUPRA) DID NOT OB LITERATE WHATEVER WAS LEGALLY DONE BY THE COMMITTEE ON DISPUTES, PRIO R TO SUCH DECISION. ACCORDING TO LEARNED D.R., WHEN THE COMM ITTEE ON DISPUTES HAD SPECIFICALLY DENIED PERMISSION, IT COU LD NOT BE HELD THAT A SUBSEQUENT DECISION OF HON'BLE APEX COURT WOULD R ENDER SUCH DECISION OF COMMITTEE ON DISPUTES INFRUCTUOUS. THE REFORE, ACCORDING TO HIM, THIS TRIBUNAL COULD NOT ADJUDICATE AN ISSUE ON WHICH COD HAD DENIED PERMISSION TO THE ASSESSEE TO PURSUE IN APPE AL. 4. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL C ONTENTIONS. IT IS NOT AT ALL DISPUTED THAT THE ISSUE REGARDING DIS ALLOWANCE OF RURAL BAD DEBTS WRITE OFF ` 2,04,096/- BEING REMITTED BACK TO THE A.O. WAS NOT ALLOWED BY THE COD TO BE PURSUED IN APPEAL BEFO RE THIS TRIBUNAL. THE ORDER OF THE COD HAD COME BEFORE THE JUDGEMENT OF HON'BLE APEX COURT WHICH WAS PRONOUNCED ON 17 TH FEBRUARY, 2011 IN THE CASE OF ELECTRONICS CORPORATION OF INDIA (SUPRA). THE QUESTION BEFORE US IS WHETHER BY VIRTUE OF THIS DECISION OF HON'BLE APEX COURT, ALL THE EARLIER ORDERS PASSED BY THE COD WOULD BE OBLITERAT ED. NO DOUBT, WHEN HON'BLE APEX COURT PRONOUNCES A JUDGEMENT, IT IS A DECLARATION OF LAW AS IT STOOD ALWAYS. BUT, IT IS ALSO TRUE TH AT THE COMMITTEE ON DISPUTES WAS CONSTITUTED BASED ON DIRECTIONS OF HON 'BLE APEX COURT. M.P. NO. 151/MDS/11 4 IN THE CASE OF ONGC V. COLLECTOR OF CENTRAL EXCISE (1992) 104 CTR 131, THEIR LORDSHIPS DIRECTED ALL COURTS AND TRIBUN AL NOT TO ENTERTAIN LITIGATION BETWEEN GOVERNMENT AND PSUS, WITHOUT CLE ARANCE FROM SUCH COD. EVEN PENDING MATTERS CAME WITHIN THE PUR VIEW OF COD BY VIRTUE OF A SUBSEQUENT DECISION OF HON'BLE APEX COURT REPORTED AS 116 CTR 643. THOUGH NOW VIDE THE DECISION IN ELECT RONICS CORPORATION OF INDIA (SUPRA), HON'BLE APEX COURT HA S RECALLED THE ORDERS IN THE ABOVE MENTIONED CASES OF ONGC (SUPRA) , THE TRIBUNALS ALL OVER INDIA WERE NOT ADMITTING ANY ISSUES OR APP EAL ON WHICH COD PERMISSION WAS NOT THERE. OF COURSE, HON'BLE APEX COURT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA (SUPRA) DOES ME NTION THAT THE COD MECHANISM HAD NOT ACHIEVED THE RESULTS FOR WHIC H IT WAS CONSTITUTED AND IT HAD OUTLIVED ITS UTILITY IN THE CHANGED SCENARIO. IN OUR OPINION, SUCH CHANGED SCENARIO MENTIONED BY THE IR LORDSHIPS COMES INTO PICTURE ON THE DATE OF PRONOUNCEMENT OF THE ORDER IN THE CASE OF ELECTRONICS CORPORATION OF INDIA (SUPRA), V IZ. 17 TH FEBRUARY, 2011. HON'BLE APEX COURT WHILE RECALLING ITS EARLI ER ORDER IN ONGCS CASES, ALSO MENTIONED THAT TIME HAD COME FOR ITS RE CALL. IN OTHER WORDS, IT IS AN INDIRECT ACCEPTANCE THAT THE COD HA D ITS PERIOD OF UTILITY. UTILITY OF THE COD WAS IN FILTERING AND F INDING THOSE ISSUES M.P. NO. 151/MDS/11 5 WHICH COULD BE TAKEN UP IN AN APPEAL BY A PSU OR GO VERNMENT. ONCE A DECISION HAS BEEN TAKEN BY THE COD, DURING I TS PERIOD OF UTILITY, AFTER EXERCISING ITS MIND, THAT CERTAIN IS SUES NEED NOT BE TAKEN UP IN APPEALS, IT CANNOT BE GIVEN A GO-BYE. DECISI ON OF HON'BLE APEX COURT IN ELECTRONICS CORPORATION OF INDIAS CASE (S UPRA) CANNOT BE SO INTERPRETED TO RENDER NUGATORY DECISIONS ALREADY TA KEN BY COD. IN OTHER WORDS, NET EFFECT OF THE APEX COURT DECISION, IN OUR OPINION, IS THAT ALL APPLICATIONS PENDING BEFORE COD AS ON 17 TH FEBRUARY 2011 SHALL ABATE, ALL PERMISSIONS ALREADY GRANTED AND AL L DENIAL OF PERMISSION ALREADY COMMUNICATED WILL HAVE TO BE TAK EN COGNIZANCE AND EFFECT GIVEN. FURTHER IT IS NOT NECESSARY FOR ANY PSU AND/OR GOVERNMENT TO SEEK SUCH PERMISSIONS ANY MORE. THE FORMATION OF COD AS WELL AS DISBANDING THEREOF ALL RESULTING OUT OF HON'BLE APEX COURTS DECISIONS, ARE NOT TO BE SEEN IN THE SAME L IGHT AS AN INTERPRETATION OF A STATUTE OR LAW. IN THIS VIEW O F THE MATTER, WE ARE OF THE OPINION THAT ASSESSEE CANNOT BE PERMITTED TO AS SAIL AN ISSUE ON WHICH COD HAD SPECIFICALLY DENIED PERMISSION TO PUR SUE AN APPEAL BEFORE US. THUS, THE GROUND RELATING TO REMISSION OF ALLOWANCE OF RURAL BAD DEBTS WAS RIGHTLY DISMISSED BY THIS TRIBU NAL. M.P. NO. 151/MDS/11 6 5. WE THUS FIND NO MERIT IN THIS MISCELLANEOUS PETI TION FILED BY THE ASSESSEE. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 23 RD SEPTEMBER, 2011. SD/- SD/- (HARI OM MARATHA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 23 RD SEPTEMBER, 2011. KRI. COPY TO: (1) PETITIONER (2) RESPONDENT (3) CIT(A) (4) CIT (5) D.R. (6) GUARD FILE