Pawan Hans Helicopters Limited, New Delhi V. DCIT, Spl. Range-27 , New Delhi

MA 456/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3317 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 2 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-05-2022
• Assessment Year: 1992-1993
• Appeal Filed On: 27-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 6; 254(2)

Judgement Text

1 MA no. 456/Del/2019 M/s Pawan Hans Helicopters Ltd. Vs. DCIT IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “D”: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER, M.A. No. 456/Del/2019 ( In ITA No. 3516/DEL/1998) Assessment Year: 1992-93 M/s Pawan Hans Helicopters Ltd., Safdarjung Airport, New Delhi. PAN- AAACP1561A Vs DCIT Special Range-27, New Delhi APPLICANT RESPONDENT Applicant by Sh. Ashish Goel CA Respondent by Sh. Om Prakash, Sr. DR Date of hearing 06.05.2022 Date of pronouncement 04.08.2022 O R D E R PER KUL BHARAT, JM: This miscellaneous application has been preferred by the assessee, seeking recalling of the order dated 20 th November, 2003 passed by the Income Tax Appellate Tribunal Delhi Bench “D” in ITA no. 3516/Del/1998 for assessment year 1992-93. 2. Learned counsel for the assessee reiterated the submissions as made in the misc. application. For the sake of clarity, the contents of the application are reproduced as under: 2 MA no. 456/Del/2019 M/s Pawan Hans Helicopters Ltd. Vs. DCIT 1. That the applicant is a Public Sector Undertaking. 2. That the applicant had filed the above stated appeal before the Hon’ble ITAT in ITA no. 3516/DEL/1998 for AY 1992-93. 3. Your honors, have passed an order in pursuance to the abovesaid appeal as on 20/11/2003. 4. In the said order, the appeal of the applicant has been dismissed for want of approval from the Committee on Disputes (COD). 5. Hon’ble Supreme Court in a judgment in the case of ONGC Vs. CCE reported in (1994) 116 CTR 643 (SC) had directed that in case of PSUs, no legal proceeding, will be proceeded with, without the approval of COD. 6. That the order passed by your honours, hence, is in accordance with the directions of Hon’ble SC in the case of ONGC Vs. CCE(supra) dt. 07/01/1994. 7. That later on in consequence to the judgment of the Hon’ble Supreme Court in the case of Electronics Corporation of India reported in (2011) 332 ITR 58 (SC), the COD got dissolved 8. That in view of the above, the COD got dissolved without disposing of the application filed by the applicant seeking approval for filing appeal before the ITAT. 9. That, in view of the above and the later judgment of the Hon’ble SC in the case of Electronics Corporation (supra), an error has crept in the order of hon’ble ITAT. 10. That in may be relevant to mention that applying the above mentioned judgment of the Hon’ble Supreme Court, the Delhi benches of the ITAT passed an order (in department’s Miscellaneous Application) in the case of DCIT vs. Airport Authority of India in ITA No. 186/Del/2006, MA no. 227/Del/2011, dated 14/12/2012 allowing reinstatement of the appeal originally dismissed. 11. That, the said order of the ITAT revived for want of approval by COD has been affirmed by the jurisdictional Delhi High Court in WP(C) no. 3162/2013, dated 08/10/2013. 12. The SLP filed before the Supreme Court was also dismissed. 13. In view of the above, your honours may kindly recall the order u/s 254(2) and hear the appeal on merits. PRAYER In the circumstances, it is prayed that the order passed by the Hon’ble Tribunal may be recalled under section 254(2) of the Income Tax Act and the appeal may be decided on merit after giving an opportunity to the applicant to represent its case.” 3 MA no. 456/Del/2019 M/s Pawan Hans Helicopters Ltd. Vs. DCIT 3. Per contra, learned DR opposed the submissions and submitted that the misc. application, so filed, is highly belated and therefore deserves to be rejected on this ground alone. 4. Learned counsel for the assessee submitted that the appeal of the assessee was dismissed by the Tribunal on the ground that the assessee failed to obtain the approval of the Committee on Disputes (COD), since assessee was a public sector undertaking. Learned counsel submitted that the issue regarding approval by the COD was finally settled by the Hon’ble Supreme Court holding that no such approval is needed vide order dated 24.8.2015. In respect of question of limitation, learned counsel for the assessee relied on the order of the Hon’ble Delhi High Court rendered in the case of Airport Authority of India Vs. CIT in Writ Petition (Civil) 3162/2013 that since the appeal was dismissed by the Tribunal on the basis of want of COD approval and the decision was not rendered on merit, therefore, the approval for section 254(2) for rectification would not apply. 5. We have heard rival submissions and perused the material available on record. It is seen from the record that the present application, seeking recalling of the Tribunal’s order is made after a lapse of substantial time. Learned counsel for the assessee urged that in view of the decision of the Hon’ble Jurisdictional High Court, rendered in the case of Airport Authority of India (supra), the provisions of section 254(2) would not apply. Moreover, he submitted that under identical facts 4 MA no. 456/Del/2019 M/s Pawan Hans Helicopters Ltd. Vs. DCIT the Tribunal in assessee’s own case rendered in MA Nos. 457 to 459/Del/2019 & 460/Del/2017 for assessment years 1995-96 to 1997-98 & 1990-91, vide order dated 30.09.2019 has recalled its order. Therefore, he submitted that the present application may also be allowed and the order dated 20.11.2003 may be recalled. We find that this Tribunal had dismissed the appeal by observing as under: “2. Since the assessee is a public sector undertaking, the approval of Committee of Secretaries on Disputes (COD) is required for prosecution of the appeal as per the decision of the Supreme Court. Despite sufficient opportunity allowed to the assessee, the requisite approval of COD has not been produced. The appeal was filed as early as in 1998 and despite the lapse of more than five years, the assessee is unable to produce the approval of the COD. Even, the information whether any such application seeking approval of COD has in fact been made by the assessee and when the same has been made, is not forth-coming from the learned counsel for the assessee. These appeals have been blocked for a period of 6 months so as to enable the assessee to furnish the requisite approval of the COD. However, the needful has not been done. Even none appeared on behalf of assessee when the appeal was fixed for hearing nor any request was made for time to file the approval of COD. 3. In view of the foregoing facts, we are inclined to dismiss the appeal of the assessee in the absence of COD approval. The assessee would be at liberty to seek adjudication of the appeal if the COD approval is furnished.” 6. Learned counsel for the assessee has placed reliance on the order of the Hon’ble Delhi High Court rendered in the case of Airport Authority of India (supra), wherein the Hon’ble High Court has held as under: “In the present case, there was no decision of the appeal on merits under Section 254(1) by the tribunal. Section 254(2) for rectification is not applicable. The order passed earlier on 27 th July, 2004 was based upon the decisions of the Supreme Court and gave liberty to seek adjudication of the appeal after COD approval. As the process or the requirement for COD approval itself has been erased, the Revenue could have and had rightly preferred an application seeking revival of the appeal in view of the decision dated 17 th February, 2011 in the case of Electronic Cooperation of India (supra).” 5 MA no. 456/Del/2019 M/s Pawan Hans Helicopters Ltd. Vs. DCIT 7. Further the Tribunal in MA no. 457 to 459/Del/2019 & 460/Del/2017 has recalled the order by observing as under: “We have heard the rival arguments made by both the sides and perused the record. It is an admitted fact that the Tribunal had dismissed the appeals filed by the assessee for want of COD approval. However, the Hon'ble Supreme Court in the case of Electronics Corporation of India (supra) has, held that the mechanism for which COD was set up has outlived its utility and accordingly they had recalled the directions in various decisions including the decision in the case of ONGC vs. CCE. We, therefore, are of the considered opinion that a mistake has crept in the order of the Tribunal dismissing the appeals for want of COD approval. We, therefore, recall the order of the Tribunal for all the four years above and the appeals are to be heard on merit. The Registry is directed to issue notice to both the parties in normal course.” 8. Therefore, considering the above binding decisions, we hereby recall our order dated 20.11.2003 passed in ITA No. 3516/Del/1998 and direct the Registry to fix the hearing of the appeal in due course. 9. In the result, misc. application filed by the assessee is allowed. This order was already pronounced orally on 06.05.2022 in open court, in the presence of representatives of both sides, after conclusion of the hearing. Now this order in writing is signed today on 4 th August, 2022. Sd/- Sd/- (PRADIP KUMAR KEDIA) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER *M P* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI