M/s Orissa Mining Corporation Ltd, Bhubaneswar V. ACIT, Bhubaneswar

MA 72/CTK/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4712 (ITAT-CUTTACK)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 11-02-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 24-09-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A S MANDAL
• Assessee Lawyers: B PANDA

Judgement Text

( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET , , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK () BEFOR E . . , HONBLE SHRI D.K.TYAGI, JUDICIAL MEMBER. / AND . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER . M.P. NOS.72 & 73/CTK/2009 ( /ARISING OUT OF I.TA.NOS .30 & 31/CTK/2009) / ASSESSMENT YEARS 2000-2001 & 2001-02 ORISSA MINING CORPORATION LTD., OMC HOUSE, BHUBANESWAR ( / APPELLANT ) - - - VERSUS -. THE ACIT, CIRCLE 1(1), BHUBANESWAR (/ RESPONDENT ) / FOR THE APPELLANT: / SHRI B.PANDA / FOR THE RESPONDENT : / SHRI A.S.MANDAL / ORDER . . , SHRI D.K.TYAGI, JUDICIAL MEMBER. BY THESE MISCELLANEOUS PETITIONS, THE ASSESSEE HAS REQUESTED TO RECALL OUR COMMON ORDER DATED 17.9.2009 . 2. IN THESE MISCELLANEOUS PETITIONS IT IS SUBMITTED THAT THE TRIBUNAL HAS DISMISSED THE APPEALS FOR WANT OF COD APPROVAL. IT IS ALSO STATED THAT THE HONBLE GUJARAT HIGH COURT IN THE CASE OF M/S. GUJARAT MINERAL DEVELOPMENT CORPORATION LTD V ITAT, 314 ITR 14 (GUJ) HAS DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE-APPELLANT HOLDING THAT THE HONBLE BENCH HAS ASSUMED POWER TO ADJUDICATE THE MATTER WITHOUT INSISTING FOR APPROACHING OR SEEKING PERMISSION BY THE ASSESSEE FIRM THE COMMITTEE OF DISPUTES. THEREFORE, THE ORDER DATED 17.9.2009 IN THE CASE OF THE PRESENT ASSESSEE BE RECALLED AND THE SAME MAY BE DECIDED ON MERITS. ( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE APPLICANT/ASSESSEE REITERATING THE SUBMISSIONS MADE IN THE MISC. PETITION FURTHER PRODUCED A COPY OF DECISION DATED 5 TH JANUARY, 2010 OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. SHIVSHAHI PUNARVASAN PRAKALP LTD V. UNION OF INDIA & OTHERS, IN WRIT PETITION NO.2270 OF 2009. HE POINTED OUT UNDER SIMILAR FACTS, THE HONBLE HIGH COURT HAS RESTORED THE APPEAL TO THE TRIBUNAL TO DECIDE THE SAME ON MERITS. HE, THEREFORE, REQUESTED TO RECALL THE ORDER AND DECIDE ON MERITS. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH PARTIES, PERUSED THE MISC. APPLICATION AND HAVE CAREFULLY CONSIDERED THE DECISIONS OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT MINERAL DEVELOPMENT CORPORATION V ITAT (SUPRA), HONBLE BOMBAY HIGH COURT IN THE CASE OF M/S. SHIVSHAHI PUNARVASAN PRAKALP LTD V. UNION OF INDIA & OTHERS,(SUPRA) ALONGWITH THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF ONGC V CIDCO, 7 SCC 39. WE HAVE ALSO PERUSED THE DECISION DATED 29.10.2009 OF THE ITAT CUTTACK IN THE CASE OF ACIT V. ORISSA FOREST DEVELOPMENT CORPORATION LTD IN ITA NO.60/CTK/2009 AND OTHERS, WHEREIN, ALSO COD APPROVAL WAS NOT OBTAINED. THE ASSESSEE AND THE DEPARTMENT HAD DEMANDED TO DECIDE THE APPEAL IN THE ABSENCE OF THE COD FOLLOWING THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF GUJARAT MINERAL DEVELOPMENT CORPORATION (SUPRA). WE FIND THAT THE CUTTACK BENCH OF THE TRIBUNAL HAS CONSIDERED ALL THE DECISIONS AVAILABLE ON THIS ISSUE AND, INTER ALIA, OBSERVED THAT RECENTLY, THE ITAT PUNE BENCH IN THE CASE OF MAHARASHTRA STATE WAREHOUSING V DCIT, 22 DTR 531, WHEREIN, IT WAS OBSERVED THAT THE REQUIREMENT OF COD COMES INTO PLAY BECAUSE OF HONBLE SUPREME COURTS DIRECTION FOR SEEKING COD CLEARANCE IN RESPECT OF DISPUTE INVOLVING STATE GOVERNMENT AND STATE GOVERNMENT BODIES. SINCE THE ASSESSEE HAS NOT OBTAINED THE CLEARANCE OF THE COD AND IN THE ABSENCE OF SUCH A CLEARANCE, THE APPEALS ARE NOT MAINTAINABLE; THE APPEAL OF THE ASSESSEE WAS DISMISSED WITH A LIBERTY TO REVIVE THE APPEAL. IT WAS ALSO OBSERVED ( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET THAT THE HONBLE GUJARAT HIGH COURT WHILE DECIDING THE ISSUE IN THE CASE OF GUJARAT MINERAL DEVELOPMENT CORPORATION LTD. (SUPRA) AS TO WHETHER THE APPROVAL OF THE COMMITTEE ON DISPUTE SETTLEMENT AS REQUIRED IN THE CASE OF A DISPUTE BETWEEN DEPARTMENTS OF THE CENTRAL GOVERNMENT AND STATE GOVERNMENT UNDERTAKING, CONSIDERED THE EARLIER DECISION OF THE HONBLE APEX COURT IN THE CASE OF ONGC (SUPRA) AND APPROVAL IS NECESSARY TO PURSUE THE APPEALS BEFORE THE TRIBUNAL. THEREFORE, FOLLOWING THE DECISION OF THE ITAT CUTTACK BENCH IN THE CASE OF ORISSA FOREST DEVELOPMENT CORPORATION LTD(SUPRA), WE DISMISS THE MISC. PETITION FILED BY THE ASSESSEE. 5. IN THE RESULT, MISC. PETITIONS FILED BY THE ASSESSEE ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 23 RD JULY, 2010 THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 23.7.10 SD/- SD/ (. . ), , (K.K.GUPTA), ACCOUNTANT MEMBER. (. . ), (D.K.TYAGI), JUDICIAL MEMBER () DATE:23.7.2010 PARIDA - COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : 2 / THE RESPONDENT: 3. /THE CIT, 4. ()/ THE CIT(A), 5. / DR, CUTTACK BENCH 6. GUARD FILE. / TRUE COPY , / BY ORDER , ( WORD TO PDF CONVERTER - UNREGISTERED ) HTTP://WWW.WORD-TO-PDF-CONVERTER.NET [ ] SENIOR PRIVATE SECRETARY