Pawan hans Helicopters ltd., Delhi V. JCIT, Delhi

MA 460/DEL/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3318 (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: B
• Next Hearing Date: 05-05-2022
• Assessment Year: 1998-1999
• Appeal Filed On: 27-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

1 MA no. 460/Del/2019 Pawan Hans Helocopters ltd. Vs. JCIT IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “B”: NEW DELHI BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER, M.A. No. 460/Del/2019 ( In ITA No. 1668/DEL/2002) Assessment Year: 1998-99 M/s Pawan Hans Helicopters Ltd., Safdarjung Airport, New Delhi. PAN- AAACP1561A Vs JCIT (OSD), CIT-III, 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 14.02.2006 passed by the Income Tax Appellate Tribunal Delhi Bench “B” in ITA no. 1668/Del/2002 for assessment year 1998-99. 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. 460/Del/2019 Pawan Hans Helocopters ltd. Vs. JCIT 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. 1668/DEL/2002 for AY 1998-99. 3. Your honors, have passed an order in pursuance to the abovesaid appeal as on 14/02/2006. 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. 460/Del/2019 Pawan Hans Helocopters ltd. Vs. JCIT 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. 460/Del/2019 Pawan Hans Helocopters ltd. Vs. JCIT 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 14.2.2006 may be recalled. We find that this Tribunal had dismissed the appeal by observing as under: “2. In this appeal, the assessee was required to obtain approval of COD and file the same before the Tribunal for pursuing the appeal. This appeal was filed in Registry on 29-4-02 and the hearing could not be taken up for want of COD approval. Despite several opportunities given, the assessee has failed to file necessary approval of the COD. Therefore, the present appeal filed by the assessee cannot be proceeded and the same is treated to be not maintainable for want of COD approval. 3. Accordingly, the appeal of the assessee stands dismissed, being not maintainable. However, the assessee would be free to take appropriate steps for restoration of its appeal in case it is able to obtain the approval of COD.” 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).” 7. Further the Tribunal in MA no. 457 to 459/Del/2019 & 460/Del/2017 has recalled the order by observing as under: 5 MA no. 460/Del/2019 Pawan Hans Helocopters ltd. Vs. JCIT “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 14.2.2006 passed in ITA No. 1668/Del/2002 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