/ n Income Tax Appeal Nos. 178 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Income Tax Appeal No. 178 of 2011 Date of decision: 8.7.2011 Commissioner of Income Tax Faridabad ." --- Appellant Versus l- e::: :J 0 U :r: C)- :r:«z .~ ~« -:r: cz«m«.,z :J a.. Mis. National Hydro Electric Power Corporation Ltd. Faridabad --- Respondent , - CORAM: HON'BlE MR. JUSTICE ADARSH KUMAR GOEl ACTING CHIEF JUSTICE HON'BlE MR. JUSTICE AJAY KUMAR MITTAl , , .' Present: Mr. Yogesh Putney, Senior Standing Counsel for the appellant-revenue. AJAY KUMAR MITTAl, J. . . This order will dispose of Income Tax Appeal Nos. 178, 179 and 180 of 2011 as it has been stated by the learned counse! for the revenue that all the appeals involve common question. 2. Income Tax Appeal No. 178 of 2011 filed under Section 26'OAof the Income-Tax Act, 1961 (for short "the Act") has been preferred by the revenue , against the order dated 6.10.2010, passed by the Income Tax Appellate TribunaL Delhi Bench 'F', New Delhi (in short "the Tribunal") in ITA No. 3013/Del of 2010, relating to the assessment year 2000-01. 3. The following substantial question of law has been claimed for determination of this Court: . . ~I - i, '- 1'(' ,", I-~ ::J 0 U :I: <-'-::I: <tz~>~<t J: Cz<t CO <t, Z ::J C. ~ ==--'1 ,- - -- l -, . Income Tax Appeal Nos. 178 of 2011 2 "Whether on the facts and in the circumstances of the case and in , law, the Ld. ITATwas right in dismissing the, appeal of the Revenue as not maintainable for want of COD approval ignoring the decision of the Hon'ble C?ujarat High Court in the case of Gujarat Mineral , " ' Development Corporation Ltd., Vs. ITAT, reported in 314 ~TR 14 wherein it has been held that there is no such requirement to approach the committee as the assessee and the Income Tax Department cannot be asked to go and obtain clearance. fro~ a committee which has no jurisdiction over them and even the' - provIsions of the Income Tax Act, 1961 and the Income Tax (Appellate Tribunal) Rules do not permit exercise of such powers , by the Tribunal? 4. The facts, in brief, necessary for adjudication of the aforesaid question, as narrated in the app'eal, are that the respondent-assessee is a Government of India Undertaking which is engaged in the construction of Hydro Electric Power Projects, generation and distribution of electricity. During the course of hearing of the appeals filed by the respondent-assessee and separate appeals preferred by the Revenue, relating to the assessment years 2000-01 and 2001-02, the Jurisdictional Tribunal, Delhi, by order dated 11.1.2008, restored the ground to the file of the CIT(A) pertaining to the additions, amounting to Rs. 1.33,81,00,0001- on account of advance against depreciation (in short "AAD") made by the. assessing officer under Section 115JB of the !\ct. The. CIT(A), however, vide order dated 5.4.2010, accepted the appeal carried by the assessee and deleted the addition of Rs. 1,33,81,00,0001-. 5. Feeling aggrieved by the. order of the CIT(A), the Revenue preferred appeal before the Tribunal. The Tribunal dismissed the appeal by order dated 6.10.2010 being not maintainable, primarily on the ground that the Revenue had not obtained necessary approval from the Committee on Pisput~s- (COD). It was further observed that no material had been placed on behalf of the Revenue showing that an application for seeking approval from the COD was made or that any such approval had been granted. This was so observed on the r f l- e:::: ~ 0 t) :J: C)-:I: <1: z ~.>e:::: <C :I: Cz <C a1 <C ..., z ~- Income Tax AQQeal Nos. '178 of 2011 3 basis of verdict of the apex Court in ONGC vs. Commissioner of Central Excise, 1992 Suppl. (2) SCC 432 and. MTNL vs. CBDT, 267 ITR 467 wherein it had been , held that when any dispute arises between a public sector undertaking and the Income Tax Department, the appellant was required to obtain necessary approval from the COD. It is this order of the Tribunal which has been impugned by the Revenue in the present appeal. 6. We have heard learned counsel for the parties and perused the' . record. 7. Learned counsel for the appellant-revenu~ relied upon the judgment of the apex Court in Electronics Corporation of India Ltd. vs. Union of India and others, (2011) 332 ITR 58 SC and submitted that an identical !ssue . came up for consideration before this Court in Income Tax Appeal No.,4~5 of . 2010 (Commissioner of Income-Tax, Faridabad vs. MIs. NHPC Ltd.), 'decided on 28.2.2011, where in view of the aforesaid decision of the Hon'ble Supreme Court it was held that approval of the COD in terms of judgment of the Supreme Court in Oil & Natural Gas Commission vs. Collector of Central Excise (1992) 104 CTR 31, was not required. This Court, while allowing the Income Tax Appeal No. 485 of 2010 above-said, had remanded the case to the Tribunal for fresh decision in accordance with' law. We find that the issue raised in the present appeals is covered by the above judgment of this Court. 8. Even though we would have issued notice to the concerned . , assessee, we consider it to be unnecessary having regard to the fact that this Court has already considered the issue raised in the appeal, in view of the yerdict of the apex Court relied upon by this Court in Income Tax Appeal NO.,485 of 2010 and had remanded the matter to the Tribunal for fresh decision. Accordingly, while disposing of these appeals in the same terms, we remand the matters to the Tribunal for fresh decision on merits in accordance with law, after hearing both the parties. 9. Since this order is being passed :without notice to the assessee for the reasons mentioned above, we make it clear that if respondent-assessee is Income Tax AQQeal Nos. 178 of 2011 4 , aggrieved by this order, it will be at liberty to move this Court for appropriate orders. , . July 8. 2011 *rkmalik* t-£t: :J 0 U J: C)-J: «:z ~~«J: CZ« [Q <t ..., Z::J a. .. ...,." . ...,,_..~.... ".,..-" -'"