Income Tax Appellate Tribunal - Rajkot
Area Manager, Food Corporation Of ... vs Assessee
IN THE INCOME TAX APPELLATE TRIBUNAL
RAJKOT BENCH, RAJKOT
Before Shri A.L. Gehlot (AM) and Shri D.T. Garasia (JM)
I.T.A. No. 485/Rjt/2006
(Assessment year 1999-2000)
Food Corporation of India vs ITO, TDS-I
C/o RK Doshi & Co, CAs Rajkot
'Aditya Centre' 2nd Floor
Phulchhab Chowk, Rajkot
PAN : AAACF0365N
(Appellant) (Respondent)
Appellant by : Shri Chandresh Parekh
Respondent by: Shri SL Meena
ORDER
A.L. Gehlot : This is an appeal filed by the assessee against the order dated 16- 10-2006 passed by the CIT(A()-II, Rajkot for the assessment year 1999-2000.
2. The assessee is a Central Government Public Sector Undertaking and as such was under obligation to obtain approval of the 'Committee on Disputes' for prosecuting the appeal before the Tribunal, as per the Three Judge judgment of the Hon'ble Apex Court in the case of ONGC vs Collector of Central Excise reported in 1995 Supp (4) SCC 541 order dated 11th October, 1991. However, by a subsequent judgment dated 7th January, 1994, the Apex Court, in the case of ONGC vs Collector of Central Excise, reported in (2004) 6 SCC 437 another bench of three Judges clarified that the order dated 11th October, 1991 passed in ONGC's case was not to efface statutory remedies, nor was the purpose of the constitution of High-Powered Committee to take away these remedies. It was therefore ordered that an appeal could be filed without clearance but thereafter an application should be made to the High-Powered Committee for clearance. Vide judgment in Civil Appeal No(s).1903 of 2008 order dated 06-04-2010 in S.L.P.(C) NO.31136 of 2009 in the case of Commissioner of Central Excise vs M/s Bharat Petroleum Corp. Ltd held as follows:
2 ITA No.485/Rjt/2006" In our experience, the working fo the COD has failed. Numerous difficulties are experienced by the COD which are expressed in the letter of the Cabinet Secretary, dated 9th March, 2010. Apart from the said letter, we find in numerous matters concerning public sector companies that different views are expressed by CODF which results not only in delay in filing of matters but also results into further litigation.
In the circumstances, we find merit in the submission advanced before us by learned Attorney General that time has come to revisit the orders passed by the three Judge Bench of this Court in the case of Oil & Natural Gas Commission vs. Collector of Central Excise (supra).
One more order needs to be highlighted because, in our view, even that Order needs to be revisited. In the case of Oil & Natural Gas Commission Vs. City Industrial Development Corporation, Maharashtra Ltd. & Ors reported in (2007) 7 SCC 39, A Division Bench of this Court has held that even a controversy between the Central and State Governments as well as their companies would also require an NOC from COD.
For the afore-stated reasons, we are of the view that the above judgments need reconsideration. We would have done so. However, we are unable to do so because the judgments in the case of ONGC (supra) have been delivered by Benches of three Judges of this Court.
In the circumstances, the Registry is directed to place these matters before Hon'ble the Chief Justice of India for appropriate directions."
From the above judgment of the Apex Court dated 06-04-2010 we find that the two judges bench of the Apex Court observed that the earlier judgments need reconsideration and directed the registry to put up the matter before Hon'ble the Chief Justice of India. Thus, the earlier judgments of the Apex Court are still effective till they are not reconsidered. We, therefore, follow the earlier judgments of the Apex Court. Accordingly we find that though an assessee, a public sector undertaking could file an appeal without clearance but thereafter an application should be made to the High-Powered Committee for clearance. But, at any event, the assessee is under obligation to get the approval from the COD 3 ITA No.485/Rjt/2006 before prosecuting the appeal. In the instant case, the ld.AR has fairly admitted that the no such approval is received so far. In the circumstances we dismiss the appeal for want of COD approval. However, if the assessee is able to obtain the COD approval at a later stage and if so advised, the assessee can move this Tribunal for recall of this order and hearing the appeal on merit.
3. In the result, the appeal is dismissed.
Order pronounced in the open court on 23-12-2010.
Sd/- sd/-
(D.T. Garasia) (A.L. Gehlot)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Rajkot, Dt : 23rd December, 2010
Pk/-
copy to:
1. the appellant
2. the respondent
3. the CIT(A)-II, Rajkot
4. the CIT-I, Rajkot
5. the DR
(True copy) By order
Asstt.Registrar, ITAT, Rajkot