M/s National Highway Authority of India,, Panchkula v. ITO, (TDS), Panchkula

ITA 401/CHANDI/2010 | 2007-2008
Pronouncement Date: 18-05-2010 | Result: Dismissed

Appeal Details

RSA Number 40121514 RSA 2010
Assessee PAN AAATN1963H
Bench Chandigarh
Appeal Number ITA 401/CHANDI/2010
Duration Of Justice 28 day(s)
Appellant M/s National Highway Authority of India,, Panchkula
Respondent ITO, (TDS), Panchkula
Appeal Type Income Tax Appeal
Pronouncement Date 18-05-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 18-05-2010
Assessment Year 2007-2008
Appeal Filed On 20-04-2010
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES A CHANDIGARH BEFORE SHRI G.S.PANNU ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA JUDICIAL MEMBER ITA NOS. 401 & 402/CHD/2010 ASSESSMENT YEARS: 2007-08 & 2008-09 NATIONAL HIGHWAY AUTHORITY OF INDIA VS. ITO (TDS) PANCHKULA PANCHKULA PAN NO. AAATN1963H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NEERAJ JAIN RESPONDENT BY: SHRI N.K. SAINI ORDER PER SUSHMA CHOWLA JM THESE TWO APPEALS BY THE ASSESSEE ARE AGAINST THE DIFFERENT ORDERS OF CIT(A) PANCHKULA BOTH DATED 6.7.2009 RELATING TO A SSESSMENT YEARS 2007- 08 & 2008-09 AGAINST THE ORDER PASSED UNDER SECTION 201(1) / 201(1A) OF THE I.T. ACT. 2. BOTH THE APPEALS PERTAINING TO THE ASSESSEE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORDER F OR THE SAKE OF CONVENIENCE 3. FROM THE PERUSAL OF RECORDS WE FIND THAT THE AS SESSEE HAD PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL AND NO PERMI SSION HAS BEEN TAKEN FROM HIGH POWER COMMITTEE TO LITIGATE THE PRESENT A PPEALS. 2 4. THE TRIBUNAL IN ITA NOS. 1192 TO 1218/CHD/2009 A ND 1235 TO 1252/CHD/2009 (ITO VS. BBMB NANGAL - DIFFERENT OFF ICERS OF BBMB) FOR ASSESSMENT YEARS 2006-07 TO 2008-09 ON SIMILAR ISSUE HELD AS UNDER:- 2. THE FIRST AND THE FOREMOST ISSUE INVOLVED IN THE APPEAL RELATES TO FINDING OUT WHETHER THE DISPUTE RAISED B Y THE APPELLANT-REVENUE IS REFERABLE TO THE HIGH POWER COMMITTEE IN TERMS OF THE JUDGMENTS OF THE HON'BLE SUPREME COURT IN THE CASE OF OIL & NATURAL GAS COMMISSION VS. COLLECTOR OF CENTRAL EXCISE DATED 11.10.1991 AND 7.1.1994 REPORTED IN 104 CTR (SC) 31 AND 70 ELT 45 (SC) RESPECTIVELY. THE LEARNED D.R. WAS DIRECTED TO FIND OUT WHETHER THE DISPUTE RAISED IS REFERABLE TO THE HIGH POWER COMMITTEE. 3. IN RESPONSE THE LEARNED D.R. APPEARING FOR THE REVENUE STATED THAT WHILE THE CLEARANCE FROM THE HIGH POWER COMMITTEE HAS NOT BEEN APPLIED FOR BUT NO SUCH APPL ICATION IS INFACT CALLED FOR SINCE ACCORDING TO HIM THE R ESPONDENT- ASSESSEE IS NOT CENTRAL GOVERNMENT BY ITSELF BUT IS MERELY A STATUTORY BODY CREATED BY THE CENTRAL GOVERNMENT. 4. WE ARE UNABLE TO AGREE WITH THE CONTENTION OF TH E LEARNED D.R. THE HON'BLE SUPREME COURT IN THE CASE OF OIL & NATURAL GAS COMMISSION DATED 11.10.1991 AND 7.1.1 994 (SUPRA) HAS MANDATED THAT THE DISPUTES ARISING BETW EEN DIFFERENT DEPARTMENTS OF THE CENTRAL GOVERNMENT AS WELL AS THOSE ARISING BETWEEN THE GOVERNMENT ON THE ONE HAN D AND OTHER GOVERNMENTAL BODIES AND UNDERTAKINGS ON THE O THER SHOULD BE FIRST REFERRED TO THE HIGH POWER COMMITTE E. THE HON'BLE SUPREME COURT HAS OBLIGATED ALL THE COURTS AND OTHER TRIBUNALS IN THE COUNTRY WHERE SUCH DISPUTES ARISE TO DEMAND A CLEARANCE FROM THE COMMITTEE IN CASE IT HAS NOT BEEN SO OBTAINED AND IT IS FURTHER DIRECTED THA T IN THE ABSENCE OF SUCH CLEARANCE THE PROCEEDINGS WOULD NO T BE PROCEEDED WITH. THE HON'BLE SUPREME COURT IN ITS JUDGMENT DATED 7.1.1994 (SUPRA) HAS FURTHER EXPLAIN ED ITS EARLIER JUDGMENT DATED 11.10.1991 (SUPRA). IT HAS BEEN CLARIFIED THAT THE MANDATE OF REFERRING THE DISPUTE TO THE HIGH POWER COMMITTEE FOR CLEARANCE DOES NOT IMPLY T HAT THE STATUTORY REMEDIES AVAILABLE FOR THE UNION OF I NDIA AND ITS STATUTORY CORPORATIONS ARE EFFACED. IT IS CLA RIFIED THAT THE POSSIBILITY OF HAVING THE DISPUTE RESOLVED THRO UGH AN IN HOUSE CONCILIATION IS ONLY INTENDED TO EXPLORE THE POSSIBILITY OF RESOLVING THE DISPUTE BEFORE REACHIN G THE COURT OR THE TRIBUNAL. 5. SUBSEQUENTLY THE HON'BLE DELHI HIGH COURT IN TH E CASE OF MAHANAGAR TELEPHONE NIGAM LTD. VS. CHAIRMAN CEN TRAL 3 BOARD DIRECT TAXES & ANOTHER 267 ITR 647 REITERAT ED THE MANDATE LAID DOWN BY THE HON'BLE SUPREME COURT REGA RDING THE CLEARANCE TO BE OBTAINED FROM THE HIGH POWER COMMITTEE BEFORE FILING OF PETITION IN THE COURT BY THE CONCERNED GOVERNMENT BODY OR PUBLIC SECTOR UNDERTAK ING. THE HON'BLE DELHI HIGH COURT IN ANOTHER SUBSEQUENT JUDGMENT IN THE CASE OF DELHI DEVELOPMENT AUTHORITY & ANOTHER VS. UNION OF INDIA & ANOTHER 296 ITR 693 ( DEL) HELD THAT THE PETITIONER THEREIN WHICH WAS A STATU TORY BODY THE CHAIRMAN OF WHICH WAS THE LIEUTANT GOVERN OR OF DELHI AND THE CONTROLLING MINISTRY OF WHICH WAS THE MINISTRY OF URBAN DEVELOPMENT GOVERNMENT OF INDIA REQUIRED PERMISSION FROM THE HIGH POWER COMMITTEE T O PURSUE ITS LITIGATION AGAINST THE INCOME-TAX DEPART MENT. 6. TO THE SIMILAR EFFECT IS THE RECENT JUDGMENT OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF KOLKATA PORT TRU ST VS. ACIT 315 ITR 243(CAL). 7. IN THE PRESENT CASE A PERUSAL OF THE ORDER PASS ED BY THE ASSESSING OFFICER REVEALS THAT THE RESPONDENT-ASSES SEE IS AN ENTITY CREATED BY THE GAZETTE NOTIFICATION NO.47 0 DATED 1.10.1967 ISSUED BY THE MINISTRY OF IRRIGATION AND POWER GOVERNMENT OF INDIA. THE LEARNED D.R. HAS ALSO SUB MITTED THAT THE RESPONDENT-ASSESSEE IS CONSTITUTED AS PER THE PROVISIONS OF SECTION 79(1) R.W.S.80(6) OF THE PUNJ AB REORGANISATION ACT 1966. IN NUTSHELL IT IS NOT I N DISPUTE THAT THE CONTROLLING MINISTRY OF THE RESPONDENT-ASS ESSEE IS THE MINISTRY OF POWER GOVERNMENT OF INDIA AND THAT IT IS A STATUTORY BODY CREATED BY THE CENTRAL GOVERNMENT IS EVEN ACCEPTED BY THE ASSESSING OFFICER IN PARA-9 OF THE IMPUGNED ORDER. BE THAT AS IT MAY THE AFORESAID FACT SITUATION IS SUFFICIENT TO CONCLUDE THAT THE CAPTIO NED DISPUTE IS OF THE NATURE WHEREBY THE MECHANISM MAND ATED BY THE HON'BLE SUPREME COURT IN THE CASE OF OIL & N ATURAL GAS COMMISSION (SUPRA) IS ATTRACTED. ACCORDINGLY WE ARE UNABLE TO AGREE WITH THE CONTRARY CONTENTION RAISED BY THE LEARNED D.R. AND HOLD THAT THE CLEARANCE FROM THE HIGH POWER COMMITTEE AS ENUNCIATED IN THE JUDGMENT OF TH E HON'BLE SUPREME COURT IN THE CASE OF OIL & NATURAL GAS COMMISSION (SUPRA) IS REQUIRED BEFORE THE CAPTIONED APPEALS CAN BE PROCEEDED WITH. 8. THE PLEA OF THE LEARNED D.R. THAT THE RESPONDENT - ASSESSEE WAS MERELY A STATUTORY AUTHORITY AND NOT A GOVERNMENT ITSELF IN OUR CONSIDERED OPINION IS OF NO CONSEQUENCE SINCE THE HON'BLE DELHI HIGH COURT IN T HE CASE OF A STATUTORY BODY NAMELY DELHI DEVELOPMENT AUTHORITY (SUPRA) HAS RULED THAT THE MECHANICS OF T HE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE O F OIL & NATURAL GAS COMMISSION (SUPRA) ARE APPLICABLE. HEN CE WE DO NOT FIND ANY MERIT IN THE PLEA RAISED BY THE LEARNED D.R. ON THE PRELIMINARY ISSUE. SINCE IT IS NOT IN DISPUTE THAT THE APPELLANT-REVENUE HAS NOT APPLIED TO THE H IGH 4 POWER COMMITTEE FOR PERMISSION TO LITIGATE THE PRE SENT APPEALS CANNOT BE PROCEEDED WITH AND ARE REQUIRED T O BE DISMISSED AS SUCH. HOWEVER IT IS TO BE CLARIFIED THAT AS AND WHEN THE REQUISITE CLEARANCE AS MANDATED BY THE HON'BLE SUPREME COURT IN THE CASE OF OIL & NATURAL GAS COMMISSION (SUPRA) IS OBTAINED AND THE REVENUE APPROACHES THE TRIBUNAL FOR PROSECUTION OF THE APPE ALS THE CAPTIONED APPEALS SHALL BE REINSTITUTED FOR FURTHER ADJUDICATION IN ACCORDANCE WITH LAW. IN THE RESULT THE APPEAL IS DISMISSED AS NOT MAINTAINABLE FOR THE PRESENT SUBJECT TO OUR OBSERV ATION IN PARA NO.8 ABOVE . 5. FOLLOWING THE ABOVE RATIO THE PRESENT APPEALS A RE DISMISSED. HOWEVER AS AND WHEN THE REQUISITE CLEARANCE IS OBT AINED AND THE ASSESSEE APPROACHES THE TRIBUNAL FOR PROSECUTION OF THE APPEAL THE SAME SHALL BE REINSITUTIED FOR ADJUDICATION IN ACC ORDANCE WITH LAW. 6. IN THE RESULT BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED BEING NOT MAINTAINABLE SUBJECT TO OUR OBSERVATION IN PARA ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH DAY OF MAY 2010. SD/-= SD/- (G.S.PANNU) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18 TH MAY 2010 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR