Commissionerof Income Taxfaridabad v. Mis. National Hydro Electric Powercorporationltd. Faridabad

l-e::::J0U:r:-C):r:«z.~~«-:r:cz«m«.,z :Ja.. / Nos. 178 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Income Tax Appeal No.178 of 2011Date of decision:8.7.2011 Commissionerof Income TaxFaridabad ." --- Appellant Versus Mis. National Hydro Electric PowerCorporationLtd. Faridabad ,- --- Respondent CORAM:HON'BlEMR. JUSTICE ADARSHKUMAR GOElACTINGCHIEF JUSTICE HON'BlEMR. JUSTICE AJAY KUMAR MITTAl ,,.' Present:Mr. Yogesh Putney, Senior Standing Counselfor the appellant-revenue. . . AJAY KUMAR MITTAl,J. This order will disposeof Income Tax AppealNos. 178, 179 and180 of 2011 as it has been stated by the learned counse! for the revenue that allthe appeals involve common question.2.Income Tax AppealNo. 178 of 2011 filed under Section 26'OAof theIncome-TaxAct,1961 (for short "the Act") has been preferredby the revenue,against the order dated 6.10.2010,passed by the Income Tax AppellateTribunaLDelhi Bench 'F', New Delhi (in short "the Tribunal")in ITA No. 3013/Del of 2010,relating to the assessmentyear 2000-01. 3.Thefollowingsubstantialquestionof law has beenclaimedfor. . determinationof this Court: n i,'-1'(',", ~==--'1 l ,- - . IncomeTax Appeal "Whether on the facts and in the circumstancesof the case and in,law, the Ld. ITATwas right in dismissing the, appeal of the Revenueas not maintainablefor want of COD approval ignoring the decisionof the Hon'ble C?ujarat High Court in the caseof GujaratMineral,"'DevelopmentCorporationLtd., Vs. ITAT, reportedin 314 ~TR 14whereinit hasbeenheld that thereis no suchrequirementtoapproachthe committee as the assesseeand the Income TaxDepartment cannot be asked to go and obtain clearance. fro~ acommitteewhichhasno jurisdictionoverthemandeventhe'-provIsionsof theIncomeTax Act,1961andtheIncomeTax(Appellate Tribunal) Rules do not permit exerciseof such powers,by the Tribunal? determinationof this Court: n i,'-1'(',", ~==--'1 l ,- - . IncomeTax Appeal "Whether on the facts and in the circumstancesof the case and in,law, the Ld. ITATwas right in dismissing the, appeal of the Revenueas not maintainablefor want of COD approval ignoring the decisionof the Hon'ble C?ujarat High Court in the caseof GujaratMineral,"'DevelopmentCorporationLtd., Vs. ITAT, reportedin 314 ~TR 14whereinit hasbeenheld that thereis no suchrequirementtoapproachthe committee as the assesseeand the Income TaxDepartment cannot be asked to go and obtain clearance. fro~ acommitteewhichhasno jurisdictionoverthemandeventhe'-provIsionsof theIncomeTax Act,1961andtheIncomeTax(Appellate Tribunal) Rules do not permit exerciseof such powers,by the Tribunal? 4.The facts, in brief, necessaryfor adjudication of the aforesaidquestion, as narrated in the app'eal, are that the respondent-assesseeis aGovernment of India Undertaking which is engaged in the construction of HydroElectricPowerProjects,generationand distributionof electricity.During thecourse of hearing of the appeals filed by the respondent-assesseeand separateappeals preferred by the Revenue, relating to the assessmentyears 2000-01 and2001-02,the JurisdictionalTribunal, Delhi, by order dated11.1.2008,restoredthe ground to the file of the CIT(A) pertaining to the additions,amounting to Rs.1.33,81,00,0001-on accountof advanceagainstdepreciation(in short "AAD")made by the. assessingofficer under Section 115JB of the !\ct.The. CIT(A),however, vide order dated5.4.2010, acceptedtheappealcarried by theassesseeand deleted the addition of Rs. 1,33,81,00,0001-.question, as narrated in the app'eal, are that the respondent-assesseeis aGovernment of India Undertaking which is engaged in the construction of HydroElectricPowerProjects,generationand distributionof electricity.During thecourse of hearing of the appeals filed by the respondent-assesseeand separateappeals preferred by the Revenue, relating to the assessmentyears 2000-01 and2001-02,the JurisdictionalTribunal, Delhi, by order dated11.1.2008,restoredthe ground to the file of the CIT(A) pertaining to the additions,amounting to Rs.1.33,81,00,0001-on accountof advanceagainstdepreciation(in short "AAD")made by the. assessingofficer under Section 115JB of the !\ct.The. CIT(A),however, vide order dated5.4.2010, acceptedtheappealcarried by theassesseeand deleted the addition of Rs. 1,33,81,00,0001-.5.Feelingaggrievedby the. orderof theCIT(A), theRevenuepreferred appeal before the Tribunal.The Tribunal dismissed the appeal byorder dated 6.10.2010 being not maintainable, primarily on the ground that theRevenue had not obtained necessary approval from the Committee on Pisput~s-(COD). It was further observedthat no material had been placed on behalf of theRevenueshowing that an application for seekingapprovalfrom the COD wasmade or that any such approval had been granted. This was so observed on thepreferred appeal before the Tribunal.The Tribunal dismissed the appeal byorder dated 6.10.2010 being not maintainable, primarily on the ground that theRevenue had not obtained necessary approval from the Committee on Pisput~s-(COD). It was further observedthat no material had been placed on behalf of theRevenueshowing that an application for seekingapprovalfrom the COD wasmade or that any such approval had been granted. This was so observed on the rf Income Tax AQQeal Nos. '178 of 2011 basis of verdict of the apex Court in ONGC vs. Commissionerof Central Excise,1992 Suppl. (2) SCC 432 and. MTNL vs. CBDT, 267 ITR 467 wherein it had been,held that when any disputearises between a public sector undertakingand theIncomeTaxDepartment,theappellantwasrequiredtoobtainnecessaryapproval from the COD.It is this order of the Tribunal which has been impugnedby the Revenue in the present appeal. rf Income Tax AQQeal Nos. '178 of 2011 basis of verdict of the apex Court in ONGC vs. Commissionerof Central Excise,1992 Suppl. (2) SCC 432 and. MTNL vs. CBDT, 267 ITR 467 wherein it had been,held that when any disputearises between a public sector undertakingand theIncomeTaxDepartment,theappellantwasrequiredtoobtainnecessaryapproval from the COD.It is this order of the Tribunal which has been impugnedby the Revenue in the present appeal. 6.We have heardlearnedcounselfor the partiesand perusedthe'.record.7.Learnedcounselfortheappellant-revenu~relieduponthejudgmentof the apex Court in ElectronicsCorporationof India Ltd. vs. Unionof India and others, (2011) 332 ITR 58 SC and submitted that an identical !ssue.came up for considerationbefore this Court in Income Tax AppealNo.,4~5of.2010(Commissionerof Income-Tax,Faridabadvs.MIs.NHPCLtd.), 'decidedon 28.2.2011,wherein view of the aforesaiddecisionof the Hon'bleSupremeCourtit was held that approval of the COD in terms of judgmentof the SupremeCourt in Oil & Natural Gas Commissionvs. Collectorof CentralExcise(1992) 104 CTR 31, was not required. This Court, while allowing the Income TaxAppealNo. 485 of 2010 above-said,had remandedthe case to the Tribunal forfreshdecisionin accordancewith' law.We find that the issueraisedin thepresent appeals is covered by the above judgmentof this Court.8.Eventhoughwewouldhaveissuednoticetotheconcerned.,assessee, we consider it to be unnecessary having regard to the fact that thisCourt has already consideredthe issue raised in the appeal, in view of the yerdictof the apex Court relied upon by this Court in Income Tax AppealNO.,485 of2010andhadremandedthematter to theTribunalforfreshdecision.Accordingly, while disposing of these appeals in the same terms, we remand thematters to the Tribunal for fresh decision on merits in accordance with law, afterhearing both the parties. 9.Since this order is being passed :without notice to the assessee forthe reasonsmentionedabove, we make it clear that if respondent-assesseeis IncomeTax AQQeal Nos. 178 of 20114,aggrieved by this order, it will be at liberty to move this Court for appropriateorders.July 8. 2011*rkmalik*t-£t::J0UJ:-C)J:«:z~~«J:CZ«[Q<tZ...,::Ja. , . ..