2009 (1) TMI 244 - HC - Income Tax

Consequence of amendment to section 43(6) Held that - by letter dated January 2 2009 the petitioner has prayed the matter before the High Powered Committee for grant of necessary clearance for pursuing the matter before the High Court at Calcutta no order is passed on this writ petition. Hence the writ petition is dismissed. However the petitioner is at liberty to file application for revival of the writ petition after clearance is obtained from the Committee.

Summary

Issues:
1. Direction sought by Kolkata Port Trust to modify assessments for assessment years 2003-04, 2004-05, and 2005-06 under section 154 of the Income-tax Act 1961.
2. Dispute regarding the necessity of clearance from the High Powered Committee for pursuing a writ petition.
3. Entitlement to relief for depreciation claimed based on amended provisions of section 43(6) of the Act and insertion of Explanation 6.

Analysis:
1. The Kolkata Port Trust filed a writ petition seeking direction to modify assessments for specific assessment years under section 154 of the Income-tax Act 1961. The petition requested appropriate orders on applications made by the petitioner and amendments to assessments in accordance with amended provisions of section 43(6) of the Act post the insertion of Explanation 6. The prayer included a direction to the respondents not to take any steps for recovery without modifying the assessments as per the order passed by the Commissioner of Income-tax (Appeals) and based on section 154 applications.

2. The Revenue contended that pursuing the writ petition was premature as clearance from the High Powered Committee was necessary, citing the precedent set by the Supreme Court in Mahanagar Telephone Nigam Ltd. v. Chairman, CBDT. The petitioner argued that the amended provisions of section 43(6) entitled them to relief for claimed depreciation. The court emphasized the importance of clearance by the High Powered Committee before proceeding with litigation, as highlighted in previous judgments. Since the petitioner had requested clearance from the Committee, the court dismissed the writ petition but allowed the petitioner to file for revival post obtaining clearance.

3. The court referenced the Supreme Court's stance on the necessity of clearance by the High Powered Committee before proceeding with litigation involving government departments or public sector undertakings. The judgment emphasized that frivolous disputes should not reach the courts without clearance from the Committee. The court dismissed the writ petition due to the absence of clearance but permitted the petitioner to seek revival post obtaining necessary clearance. The matter was left pending subject to the Committee's expeditious consideration. The respondents were not required to file affidavits, and no costs were awarded.