ASST CIT CIT 2(1), v. CENTRAL BANK O INDIA,

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH M UMBAI BEFORE S/SHRI B.R.MITTAL (JM) AND RAJENDRA SINGH(AM ) . . M.A NO.736/M/2012 (ARISING OUT OF ITA NO.4387/MUM/2005) ASSESSMENT YEAR: 1996-97 ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 2(1) ROOM NO.561 5 TH FLOOR AAYAKAR BHAVAN MUMBAI-400020 / VS. M/S CENTRAL BANK OF INDIA CHANDER MUKHI NARIMANPOINT MUMBAI-400021. ./ ./PAN/GIR NO. : AAACC2498P ( # / APPLICANT ) .. ( $ # / RESPONDENT) # / APPLICANT BY : MS.NEERJA PRADHAN $ # & /RESPONDENT BY : SHRI F.V.IRANI & * / DATE OF HEARING : 5.7.2013 & * /DATE OF PRONOUNCEMENT : 5.7.2013 / O R D E R PER B.R.MITTAL JM: BY THIS MISCELLANEOUS APPLICATION FILED U/S 254 (2) OF THE INCOME TAX ACT 1961 THE DEPARTMENT HAS REQUESTED TO RECALL THE ORDER O F THE TRIBUNAL DATED 20.2.2008 PASSED IN ITA NO.4387/MUM/2005 FOR ASSESSMENT YEAR 1996-97. 2. WE HAVE HEARD LD. REPRESENTATIVE OF THE PARTIES AND CONSIDERED THE CONTENTS OF THE APPLICATION FILED BY THE DEPARTMENT. WE OBSERV E THAT THE TRIBUNAL DISMISSED THE APPEAL OF THE DEPARTMENT ON THE GROUND THAT THE REV ENUE HAD NOT OBTAINED APPROVAL OF COMMITTEE ON DISPUTES (COD) AS PER DIRECTION OF T HE HONBLE APEX COURT IN THE CASE OF ONGC V/S COLLECTOR OF CENTRAL EXCISE 1992 (SUPPL/ II)SCC 432. THE DEPARTMENT HAS STATED THAT IN TERMS OF THE DECISION OF THE HONBL E SUPREME COURT IN THE CASE OF BHARAT PETROLEUM CORPORATION LTD CIVIL APPEAL NO.1903 OF 2008 NO APPROVAL OF COD IS REQUIRED FOR APPEALING TO THE INCOME TAX APPELLATE TRIBUNAL. THE SAME FACTS WERE REITERATED BY THE LD. DR AT THE TIME OF HEARING. M.A NO.736/M/2012 2 3. ON THE OTHER HAND THE LD. AR SUBMITTED THAT THE APPLICATION FILED BY THE DEPARTMENT IS BARRED BY LIMITATION BEING THE APPLIC ATION HAS BEEN FILED ON 6.12.2012 AGAINST THE ORDER OF THE TRIBUNAL DATED 20.2.2008 I .E. AFTER EXPIRY OF FOUR YEARS FROM THE DATE OF THE ORDER PASSED BY THE TRIBUNAL. HE F URTHER SUBMITTED THAT THE HONBLE APEX COURT ALSO PASSED THE ORDER ON 17.2.2011 IN C IVIL APPEAL NO.1883 OF 2011 ARISING OUT OF SLP ( C) NO.2538 OF 2009 IN THE CASE OF ELE CTRONICS CORPORATION OF INDIA V/S UOI AND ORS. THAT NO APPROVAL FROM THE COD IS REQUIRED TO FILE APPEAL BEFORE THE TRIBUNAL. HE SUBMITTED THAT EVEN FROM THE DATE OF SAID ORDER OF THE HONBLE APEX COURT THE APPLICATION HAS BEEN FILED AFTER MORE THAN ONE AND HALF YEARS HENCE THIS APPLICATION OF THE DEPARTMENT IS BARRED BY LIMITATION. 4. ON CONSIDERATION OF THE ABOVE FACTS AND THE FACT S THAT THE APPLICATION HAS BEEN FILED BY THE DEPARTMENT AFTER A PERIOD OF FOUR YEAR S FROM THE DATE OF THE ORDER PASSED BY THE TRIBUNAL WE HOLD THAT THE APPLICATION OF THE DEPARTMENT IS BARRED BY LIMITATION. FURTHER WE ALSO AGREE WITH THE LD. AR THAT THE HON BLE APEX COURT PASSED THE ORDER ON 17.2.2011 (SUPRA) BY HOLDING THAT THE APPEAL CAN BE FILED BY PUBLIC SECTOR UNDERTAKINGS BEFORE THE TRIBUNAL EVEN WITHOUT THE CODS APPROVA L AND THEREFORE THERE IS NO REASONABLE CAUSE SHOWN BY THE DEPARTMENT FOR THE DELAY OF MORE THAN 11 MONTHS IN FILING THIS APPLICATION AGAINST THE ORDER OF THE T RIBUNAL. HENCE WE REJECT THE APPLICATION OF THE DEPARTMENT BEING BARRED BY LIMITATION. 5. IN THE RESULT MISCELLANEOUS APPLICATION OF THE DEPARTMENT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH JULY 2013 & 0 1 5 TH JULY 2013 & SD/- SD/- ( / RAJENDRA SINGH) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 1 DATED 5 TH JULY 2013 . . ./ SRL SR. PS ! / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPELLANT 2. $ # / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- 4. 6 / CIT M.A NO.736/M/2012 3 5. 7 $9 * 9 / DR ITAT MUMBAI 6. / GUARD FILE. / BY ORDER TRUE COPY (ASSTT. REGISTRAR) * 9 /ITAT MUMBAI