M/S. TAMIL NADU INDUSTRIAL D vs. THE ASSISTANT COMMISSIONER O

T.C.A.No.825 of 2019 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 12.11.2019 CORAM: THE HONOURABLE Mr. JUSTICE M.SATHYANARAYANAN AND THE HONOURABLE Mr. JUSTICE N.SESHASAYEE T.C.A.No.825 of 2019 Tamil Nadu Industrial Development Corporation Limited 19A, Rukmani Lakshmipathy Road Egmore, Chennai – 600 008. ... Appellant / Appellant Vs The Assistant Commissioner of Income Tax Company Circle – III (1) Chennai – 600 034. ... Respondent / Respondent Prayer:- Tax Case Appeal filed under Section 260A of the Income Tax Act, 1961, against the common order of the Income Tax Appellate Tribunal, “C” Bench, Chennai dated 12th May, 2009 in ITA.No.1181/Mds/2008. For Appellant : Mr.Vikram Vijaya Raghavan for Mr.Subbaraya Aiyar Padmanabhan. For Respondent : Mr.M.Swaminathan & Ms.Pushpa Standing Counsel for Income Tax Dept. 1/6 http://www.judis.nic.in T.C.A.No.825 of 2019 JUDGMENT [Order of the Court was made by M.SATHYANARAYANAN, J.] The

appellant-assessee

State

Government Corporation/Undertaking and its Return of Income for the Assessment Year 2003-2004, admitting 'Nil' income was picked up for scrutiny and notice under Section 143(2) of the Income Tax Act was issued and thereafter, assessment was completed by the Assessing Officer, vide order dated 23.11.2005. The Commissioner of Income Tax has set aside the said order with a further direction, directing the Assessing Officer to recompute the book profits under Section 115JB of the Act for the impugned Assessment Year and also to do the computation under normal provisions on the basis of the directions and decisions given, and also directed him to determine the loss and absorbed depreciation for the subsequent years, in accordance with law. 2. The assessee, aggrieved by the said order, filed an appeal before the Income Tax Appellate Tribunal, Chennai Bench, and a Cross Objection was preferred by the Revenue. The Appellate Tribunal vide impugned order dated 12.05.2009, dismissed both the appeal and the cross objection filed by the Assessee and Revenue respectively, holding that neither the Assessee nor the Revenue, have not obtained necessary permission from the Committee on Disputes, however, granted liberty to 2/6 http://www.judis.nic.in T.C.A.No.825 of 2019 them to move the Tribunal for recalling the order. 3. Aggrieved by the dismissal order, the State Government Corporation/Assessee is before this Court in this appeal. In the grounds of appeal memorandum, the assessee has raised the following substantial questions of law : 1. Whether on the facts and circumstances of the case, the Tribunal was justified in not adjudicating the appeal filed by assessee in ITA.No.1181/Mds/2008 for the assessment year 2003-04 in its consolidated order dated 12th May 2009? 2. Even assuming that the assessee appeal in ITA.No.1181/Mds/2008 for the assessment year 2003-04 was included in the consolidated order dated 12th May 2009, whether the Tribunal was justified in dismissing the appeal for not obtaining the permission from Committee on Disputes to pursue the appeal? 3. Whether on the facts and circumstances of the case, the Tribunal was justified in rejecting the Miscellaneous Application to recall its order dated 12th May 2009 to specifically adjudicate the assessee appeal in ITA No.1181/Mds/2008 for the assessment year 2003-2004 holding that the said appeal also stood dismissed vide the consolidated order dated 12th May 2009? 4. Whether on the facts and circumstances of the case, the Tribunal ought to have recalled its earlier order dated 12th 3/6 http://www.judis.nic.in T.C.A.No.825 of 2019 May 2009 for the assessment year 2003-04 on the basis of the Hon'ble Supreme Court decision in the case of Electronics Corporation of India vs. Union of India [332 ITR 58 (SC)], wherein the orders of the Supreme Court in the cases of ONGC vs. CEE [(1992) 104 CTR (SC) 31 : 1995 Suppl.(4) SCC 541]; ONGC vs. CEE [(1994) 116 CTR (SC) 643 : 2004 (6) SCC 437]; ONGC vs. City & Industrial Development Corporation [2007 (7) SCC 39] were recalled? 4. The learned counsel appearing for the appellant-assessee as well as the Standing Counsel appearing for the Revenue, has drawn the attention of this Court to the judgment of the Hon'ble Supreme Court of India in Electronics Corporation of India Vs. Union of India & Ors reported in [(2011) 332 ITR 0058 :(2011) 238 CTR 0353 : (2011) 79 CCH 0419 ISCC], and would submit the Hon'ble Supreme Court in the above cited decision, had recalled the directions requiring the approval of Committee on Disputes, and as such, remitted the appeals back to the Tribunal for adjudication on merits. 5. The Revenue has placed reliance upon ONGC & Anr. Vs. CCE [1992 Supp (2) SCC 432] and the said decision was taken into consideration in the above cited decision, wherein the Hon'ble Supreme Court of India, had recalled the directions passed in the following cases : i. ONGC vs. CCE (1992) 104 CTR (SC) 31 : 1995 Supp (4) SCC 541 4/6 http://www.judis.nic.in T.C.A.No.825 of 2019 dt. 11th Oct.1991. ii. ONGC vs. CCE (1994) 116 CTR (SC) 643 : (2004) 6 SCC 437, dt. 7th Jan. 1994. iii. ONGC vs. CCE (2007) 7 SCC 39, dt. 20th July 1994. 6. This Court has considered the rival submissions and also perused the materials placed before it. 7. In the light of the above cited decision of the Hon'ble Supreme Court of India, reported in [(2011) 332 ITR 0058], this Court is in agreement with the substantial questions of law raised in this appeal, and this appeal is allowed and the impugned order dated 12th May, 2009 in ITA.No.1181/Mds/2008, relating to the Assessment Year 2003-2004, is set aside and the appeal is remanded back to the Income Tax Appellate Tribunal, “C” Bench, Chennai, for fresh adjudication. No costs. [M.S.N., J.,] [N.S.S., J]

12.11.2019 Index : Yes / No Internet : Yes / No Speaking order / Non-speaking order ds To: The Assistant Commissioner of Income Tax Company Circle – III (1) Chennai – 600 034. 5/6 http://www.judis.nic.in T.C.A.No.825 of 2019 M.SATHYANARAYANAN, J., and N.SESHASAYEE, J., ds T.C.A.No.825 of 2019 12.11.2019 6/6 http://www.judis.nic.in