ACIT -IV, Lucknow V. M/S U.P. drugs & Pharmaceutical Co Ltd, Lucknow

MA 56/LKW/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7543 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2012
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 04-11-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 03-12-2010
• Court: TRIBUNAL
• Department Lawyers: SEFALI SWAROOP
• Assessee Lawyers: R C JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH, LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI B. R. JAIN , ACCOUNTANT MEMBER M A NO. 56/LKW/2010 [ARISING OUT OF ITA NO. 847/LKW/2008] ASSESSMENT YEAR: 2005 - 06 THE ACIT RANGE IV L UCKNOW V. M/S U.P. DRUGS & PHARMACEUTICALS CO. LTD. A - 5, INDL. AREA, KANPUR ROAD LUCKNOW PAN:AAACU4413A (APPLICANT) (RESPONDENT) APP LIC ANT BY: SMT. SEFALI SWAROOP, D.R. RESPONDENT BY: SHRI. R. C. JAIN, C.A. DATE OF HEARING: 04.11.2011 DATE OF P RONOUNCEMENT: 04.01.2012 O R D E R PER S UNIL KUMAR YADAV : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE WITH A REQUEST FOR RECALLING THE ORDER OF THE TRIBUNAL DATED 2.7.2010 IN ITA NO. 847/LKW/2008 WITH THE SUBMISSION THAT THE TRIBUNAL H AS DISMISSED THE APPEAL OF THE REVENUE ON THE GROUND THAT APPROVAL OF COMMITTEE ON DISPUTES (COD) WAS NOT OBTAINED. NOW THE APEX COURT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD. V. UNION OF INDIA & OTHERS (2001) 51 DTR (SC) 193 HAS CLARIFIED THA T THE PERMISSION OF COD IS NOT REQUIRED. THEREFORE, THE ORDER PASSED BY THE TRIBUNAL IS CONTRARY TO THE JUDGMENT OF THE HON'BLE APEX COURT AND IT SHOULD BE RECALLED AND THE APPEAL BE FIXED FOR HEARING ON MERITS. : - 2 - : 2 . THE LD. COUNSEL FOR THE ASSESSEE STRONGLY OBJECTED THE CONTENTIONS OF THE REVENUE WITH THE SUBMISSION THAT IN THIS CASE THE HON'BLE APEX COURT HAS NOT INTERPRETED OR DECLARED . THE COMMITTEE ON DISPUTE WAS CONSTITUTED PURSUANT TO THE DIRECTION OF THE HON'BLE APEX COURT GIVEN IN THE CASE OF ONGC AN D OTHERS V. COLLECTOR OF CENTRAL EXCISE, 104 CTR (SC) 31. THEREAFTER, THE JUDGMENT OF THE HON'BLE APEX COURT RENDERED IN THE CASE OF ONGC V. CCE, 104 CTR (SC) 31, ONGC V. CCE, 116 CTR (SC) 643 AND ONGC V. CITY & INDUSTRIAL DEVELOPMENT CORPN, 2007 (7) SCC 39 WERE SINCERELY FOLLOWED BY ALL SU BORDINATE AUTHORITIES AND THE APPEALS BY THE REVENUE WERE DISMISSED IF THE CODS APPROVAL WA S NOT OBTAINED. NOW THROUGH THE JUDGMENT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD. V. UNION OF INDIA & OTHERS (2001) 51 DTR (SC) 193, THE HON'BLE APEX COURT HAVE HELD THAT THE EARLIER ORDERS HAVE OUTLIVED ITS UTILITY AND IN VIEW OF THE CHANGED SCENARIO, THE ABOVE ORDERS ARE REQUIRED TO BE RECALLED. THEREFORE, IN THIS JUDGMENT, THE HON'BLE APEX COURT HAS LAID DOWN NEW G UIDELINES IN THIS REGARD. THESE GUIDELINES CAN BE FOLLOWED PROSPECTIVELY AND NOT RETROSPECTIVELY. THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE REVENUE FOLLOWING THE JUDGMENT OF THE HON'BLE APEX COURT, THEREFORE, IT CANNOT BE SAID THAT THERE IS AN ERROR A PPARENT IN THE ORDER OF THE TRIBUNAL. 3 . HAVING HEARD THE RIVAL SUBMISSION AND FROM A CAREFUL PERUSAL O F THE MISCELLANEOUS APPLICATION VIS - - VIS THE ORDER OF THE TRIBUNAL, WE FIND THAT THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE REVENUE FOR WANT OF CODS APP ROVAL FOLLOWING THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF ONGC AND OTHERS V. COLLECTOR OF CENTRAL EXCISE, 104 CTR (SC) 31. AT THE RELEVANT POINT OF TIME, THE REVENUE WAS REQUIRED TO OBTAIN APPROVAL FROM THE COD BY VIRTUE OF THE JUDGMENT OF THE HON'BLE APEX COURT AND THE DECISION TAKEN BY THE GOVERNMENT OF INDIA. TO OBTAIN APPROVAL BEFORE FILING THE APPEAL WAS MANDATORY UPON THE REVENUE AND THERE WAS SERIES OF JUDGMENTS BY THE APEX COURT AND VARIOUS HIGH COURTS THROUGH WHICH THE APPEALS OF THE REVENUE WERE DISMISSED FOR WANT OF APPROVAL OF COD. : - 3 - : FOLLOWING THE SAME, THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE REVENUE IN THE PRESENT CASE ALSO . NO DOUBT , BY THIS JUDGMENT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD. V. UNION OF INDIA & OTH ERS (SUPRA), THE APEX COURT HAS CLARIFIED THE POSITION AND HELD THAT EARLIER MECHANISM HAS OUTLIVED ITS UTILITY. THEREFORE, THERE IS NO NEED TO OBTAIN APPROVAL BEFORE LITIGATING WITH OTHER GOVT. DEPARTMENTS. EARLIER ORDERS PASSED BY THE HON'BLE APEX COUR T IN THE CASES OF ONGC V. CCE, 104 CTR (SC) 31, ONGC V. CCE, 116 CTR (SC) 643 AND ONGC V. CITY & INDUSTRIAL DEVELOPMENT CORPN, 2007 (7) SCC 39 WERE RECALLED BY THE HON'BLE APEX COURT THROUGH THE JUDGMENT IN THE CASE OF ELECTRONICS CORPORATION OF INDIA LTD. V. UNION OF INDIA & OTHERS (SUPRA). THEREFORE, AFTER 17.2.2011 THERE IS NO JUDGMENT OF THE HON'BLE APEX COURT WHICH MANDATE S THAT COD APPROVAL IS NECESSARY FOR FILING THE APPEAL AGAINST PUBLIC SECTOR S . BUT AT THE RELEVANT POINT OF TIME WHEN THE IMPUGNED APPEAL WAS FILED AND HEARD BY THE TRIBUNAL, THESE JUDGMENTS WERE IN FORCE AND THE TRIBUNAL HAS DECIDED THE APPEAL FOLLOWING THOSE JUDGMENTS. THEREFORE, IT CANNOT BE SAID THAT THERE IS AN ERROR APPARENT IN THE ORDER OF THE TRIBUNAL. THE REVENUE IS HOWEVE R AT LIBERTY TO FILE FRESH APPEAL IF LAW PERMITS WITHOUT OBTAINING CODS APPROVAL , IF THEY DEEMS FIT AND PROPER. 4 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4.1.2012. SD/ - SD/ - [B. R. J AIN ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4.1.2012 JJ: 3011 : - 4 - : COPY FORWARDED TO: 1 . APP LIC ANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR