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TMI Blog2009 (2) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 by formulating the following substantial question of law: "Whether the Appellate Tribunal is right in law and on facts in dismissing the Appeal of the revenue on the ground that approval of Committee of Dispute was not obtained?" The petitioner of Special Civil Application is a Public Sector Undertaking of Government of Gujarat established in 1963. The appellant, in all the four appeals, is the Commissioner of Income-tax. The petition and the tax-appeals are taken up for hearing together as the controversy involved in all the matters is one and the same and arises out of a common order of the Income-tax Appellate Tribunal, Ahmedabad Bench 'A' (the Tribunal) dated 31.01.2006 in appeals filed both by revenue and the assessee before the Tribunal. The Assessment Years in question are 1988-89, 1994-95, 1996-97 and 1997-98. It is not necessary to set out the dispute between Income-tax Department and the assessee as the Tribunal has without going into merits of the matter non-suited the parties by refusing to admit the appeals filed before the Tribunal without approval of committee of disputes, referred to by the Tribunal as COD. Both on behalf of the petitioner-assessee and the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a dispute between ONGC, a Public Sector Undertaking of Central Government, and Central Excise Department of the Central Government, as to whether excise duty on lean gas supplied to consumers was leviable or not, the Apex Court made the following interim order: "3. This Court has on more than one occasion pointed out that Public Sector Undertakings of Central Government and the Union of India should not fight their litigations in Court by spending money on fees of counsel, court fees, procedural expenses and wasting public time. Courts are maintained for appropriate litigations. Court's time is not to be consumed by litigations which are carried on either side at public expenses from the source. Notwithstanding these observations repeated on a number of occasions, the present cases appear to be an instance of total callousness. The letter of October 3, 1988, indicated that the Cabinet Secretary was looking into the matter. That has not obviously been followed up. As an instance of wasting public time and energy this matter involves a principle to be examined at the highest level. 4. The Cabinet Secretary is called upon to handle this matter personally and report to this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt would expect a quarterly report about the functioning of this system to be furnished to the Registry beginning from 1-1-1992. 6. Our direction may be communicated to every High Court for information of all the courts subordinate to them." The aforesaid directions in Paragraph No.3 make it clear that the directions were only to Government of India to set up a High Powered Committee (the Committee) to monitor disputes between Ministry and Ministry of Government of India, Ministry and Public Sector Undertakings of Government of India, and Public Sector Undertakings in between themselves. Paragraph No.4 of the judgment cannot be read to mean that every Court and every Tribunal shall demand a clearance from the Committee even if the litigating parties are not answering the description of the litigants who are to go before the Committee, or when the Committee would have no jurisdiction and powers where one of the litigants would not be amenable to the jurisdiction of the Committee, which has been constituted in compliance of the aforesaid two orders made by the Apex Court. The third order in line is again between the same two parties viz. Oil and Natural Gas Commission A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .V. Jagannadha Rao claiming to the owners of the lands as pattedars. The Revenue Department, through the Collector, Mahboobnagar district, accepted the claim made by pattedars on the basis of a report by the Commissioner of Survey, Settlement and Land Records, and the said decision was accepted by the Government of Andhra Pradesh, but the Chief Conservator of Forests was of the view that the opinion expressed by Commissioner of Survey, Settlement and Land Records was not correct and thus filed a writ petition in the High Court of Andhra Pradesh challenging the said decision. The pattedars had also carried the matter through the Civil Court by seeking a declaration in their favour and the said litigation also landed before the Apex Court by way of a Civil Appeal filed by the Chief Conservator of Forests. In the back drop of the aforesaid facts the Apex Court observed as under: "14. Under the scheme of Constitution, Article 131 confers original jurisdiction on the Supreme Court in regard to a dispute between two States of the Union of India or between one or more States and the Union of India. It was not contemplated by the framers of the Constitution or CPC that two departments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a committee consisting of the Chief Secretary of the State, the Secretaries of the departments concerned, the Secretary of Law and where financial commitments are involved, the Secretary of Finance. The decision taken by such a committee shall be binding on all the departments concerned and shall be the stand of the Government." Thereafter, the Apex Court held that the Chief Conservator of Forests, independent of State of Andhra Pradesh, had no authority or locus to approach the Court by initiating legal proceedings in his own name. In so far as the dispute emanating from the suit proceedings is concerned, the Apex Court upheld the judgment of the trial Court and refused to take a view contrary to the statutory order made by Commissioner of Survey, Settlement and Land Records. Thus, this judgment of the Apex Court clearly indicates in the first instance that the earlier three orders in the case of ONGC Vs. Collector of Central Excise, referred to hereinabove, do not at any stage envisage a dispute between two Departments of the State Government, nor was a dispute between a Department of Union of India and a Public Sector Undertaking of the State Government envisage or covered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder made by the Apex Court which relates to a dispute between Union of India and a State, or a Department of Union of India and a State, or a Public Sector Undertaking of Union of India and a State, or between two States inter se, the term 'State' here to mean and include the State Government, a Department of the State Government or an Undertaking of the State Government. Hence, it is not possible to expand the scope of directions made by the Apex Court so as to include a dispute between a Department of the Central Government and a State Government Undertaking. Therefore, the impugned order of Tribunal suffers from an error apparent in law and cannot be sustained. It is also necessary to take note of the fact that none of the aforesaid five cases even remotely suggest that the Committee set up by the Central Government would have jurisdiction to consider resolution of such disputes between a State and the Union, respective Departments and Undertakings included. The contrary view expressed by Rajasthan High Court in the case of State of Rajasthan Vs. Income Tax Appellate Tribunal (supra) and Delhi High Court in the case of Commissioner of Income-tax, Delhi Tourism and Transp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of exercising the powers and discharge the functions conferred on the Appellate Tribunal by the Act. In other words, the Tribunal is constituted under the provisions of Section 252(1) of the Act by the Central Government. Such a constituted Tribunal is required to exercise powers and discharge the functions conferred on the Tribunal by the Act. The Tribunal, therefore, cannot exercise powers or discharge functions which are not conferred on the Tribunal by the Act. Section 253 of the Act lays down under sub-Section (1) thereof as to which orders can an aggrieved assessee challenge by way of filing an appeal before the Tribunal. Section 253(2) of the Act permits the Commissioner to file an appeal as stipulated therein. Sub-section (3) of Section 253 of the Act provides the period of limitation within which the appeal can be filed. Sub-section (4) of Section 253 of the Act permits filing of cross-objections by the non-appellant, namely, the respondent. Sub-section (5) of Section 253 of the Act assumes importance in as much as it invests the Tribunal with discretionary powers to admit an appeal or permit the filing of cross-objections after the expiry of the relevant period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted. Section 255 of the Act deals with the Procedure of the Tribunal and under sub-section (1) thereof it is provided that the powers and functions of the Tribunal may be exercised and discharged by Benches constituted by the President of the Tribunal. Namely, it is the President of the Tribunal, who has the prerogative to constitute a Bench and such a Bench is required to exercise the powers and discharge functions conferred on the Tribunal by the Act as laid down in Section 252(1) of the Act. Sub-section (5) of Section 255 of the Act provides that, subject to the provisions of the Act, the Tribunal shall have the power to regulate its own procedure in all matters arising out of the exercise of its powers or in course of discharge of its functions, including the places at which the Benches may hold sittings. Hence, to regulate the procedure Income-tax (Appellate Tribunal), Rules, 1963 (the ITAT Rules) have been framed. Under Rule 4 of the ITAT Rules, it is provided that a Bench shall hear and determine such appeals and applications made under the Act as per directions issued by the President vide general or special order. This Rule denotes the assignment of work to a Bench co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a creature of the Statute, having been constituted under the provisions of the Act cannot exercise any powers beyond the powers available under the Act, and cannot discharge functions not provided under the Act, as well as the ITAT Rules which deal with the procedural part of filing and hearing an appeal. The Tribunal, therefore, cannot arrogate to itself the powers and jurisdiction which the Tribunal does not possess. In the present case the impugned order reveals that the Tribunal has assumed powers which it does not have, for determining whether the appeal is to be admitted or not. The Tribunal has lost sight of the fact that, both the assessee and the revenue, are statutorily vested with a right under the Act by virtue of Section 253(1), 253(2) and 253(4) of the Act to file an appeal or cross-objections. Such right granted by the Statute cannot be divested by the Tribunal on an erroneous assumption of powers arrogated to itself under a mistaken belief of law. There is therefore, no such requirement in the facts of the case to approach the Committee as the assessee herein and the Income Tax Department cannot be asked to go and obtain clearance from a Committee which has n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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