Bongaigaon Refinery and Petro-Chemicals Ltd. vs Commissioner of Income Tax and Others

Ranjan Gogoi, J.—Heard Dr. A. K. Saraf, Learned Sr, Counsel for the petitioner and Mr. U. Bhuyan. Learned Standing Counsel for the Income Tax.

As agreed to by both the parties and in order to prevent possible prejudice to public interest that may be occasioned by keeping this writ petitions pending. This court considers it appropriate to pass final orders in the present writ applications.

Both the writ applications have been filed challenging the common order dated 17.5.2002 passed by the Learned Income Tax Appellate Tribunal, Gauhati Bench in ITA Nos. 46 and 48 (Gauhati) of 2002. By the aforementioned order dated 17.5.2002, the Learned Tribunal had rejected the aforesaid appeals filed by the petitioner/assessee on the grounds stated therein giving liberty to the assessee to move the Tribunal once again for recall of the order, in the event, the approval of the High Power Committee is obtained by the assessee for prosecution of the appeals before the Learned Tribunal. The facts lie in a short compass and may be briefly indicated hereunder.

Against the rejection of the appeals filed by the petitioner before the Commissioner of Income Tax (Appeals) in respect of the assessment for the years 1994-95 and 1998-99 finalised by orders dated 26.3.1997 and 30.3.2001 respectively the petitioners had instituted ITA Nos. 46 and 48 (Gauhati) before the Learned Tribunal. Before the aforesaid appeals were filed, to resist the demand for payment of tax following the rejection of the appeals by the Learned Appellate Commissioner of Income Tax, the petitioners had instituted two writ proceedings before this court being WP(C) Nos. 1443/2002 and 1458/2002. This court by order dated 7.3.2002 disposed of the aforesaid writ applications with the following directions:

"In my considered opinion, since the petitioner has been conferred with the right of appeal along with the right to file an application for stay of demand appealed against before the appellate Tribunal, until the application of the petitioner for stay of the demand appealed against is considered by the Tribunal and orders are passed by the Tribunal, the demand appealed against should be stayed. 60 days time from the date of communication of the orders to be appealed against has been given by the provisions of the Income Tax Act to the petitioner to file the appeal. I dispose of these writ petitions with the direction that in case the petitioner files the appeal within a period of 60 days from the date of the communication of the orders before the appellate Tribunal at Guwahati and also file along with the said appeal an application for stay of demand, the recovery of the balance amount of Rs. 30,53,15,089 from the petitioner shall not be made until orders are passed by the appellate Tribunal on the said application for stay of demand and until 15 days thereafter to enable the petitioner to move any higher forum against the orders passed on the said application by the appellate Tribunal.

With the aforesaid direction these two writ petitions are disposed of."

Thereafter, the petitioner filed appropriate petitions seeking permission of the high power committee to prosecute the appeals against the order of this CIT (Appeals) on 23.3.2002 and the said petitions were handed over to the officials of the high power committee on 2.4.2002. Immediately after the petitions seeking due permission were filed on 23.3.2002, the appeals in question, i.e., ITA Nos. 46 and 48 (Gauhati)/2002 were filed before the Learned Tribunal on 1.4.2002. The Tribunal by the order dated 17.5.2002 impugned in the present proceeding, after recording the finding that despite several opportunities, the petitioners (appellant before the Tribunal) had neither produced any such permission of the high power committee before the Tribunal nor any evidence was brought on record to show that any effort had been made to secure such permission, thought it proper to dismiss the appeals by treating them as unadmitted appeals. The Learned Tribunal had also recorded the finding that inordinate delay had occurred in obtaining the approval of the high power committee which indicated that the assessee/appellants were not serious about the prosecution of the appeals. The Learned Tribunal after dismissing the appeals in question, however, granted liberty to the appellant to move the Tribunal for recall of the order, if necessary permission of the high power committee is obtained in the meantime, as already noticed.

Dr. Saraf, Learned Sr. Counsel appearing on behalf of the petitioners by referring the averments made in the writ application has submitted that the permission of the high power committee having been sought and the requisite papers having been handed over on 23.3.2002 and 2.4.2002, the finding recorded that inordinate delay had occurred in obtaining the permission from high power committee is ex facie not correct. The Learned Counsel had further submitted the writ petitioners having disclosed to the Learned Tribunal that the committee was in sesin of the matter, the finding recorded by the Learned Tribunal to the effect that the petitioners have not made any endeavour to obtain/secure necessary permission and therefore the petitioners were not interested in prosecuting the appeals before it is wholly opposed to the materials on record. Dr. Saraf by placing reliance on the decision of the Apex Court reported in Oil and Natural Gas Commission Vs. Collector of Central Excise, has contended that the Learned Tribunal instead of dismissing the appeals ought to have kept the same pending until receipt of necessary clearance of the high power committee. Mr. U. Bhuyan, Learned Counsel for the revenue submits that the materials available on record as on date do not indicate that the facts stated in the writ petition and submitted on behalf of the writ petitioners regarding the date/dates on which permission of the high power committee was sought, were placed before the Learned Tribunal, in order to enable the Learned Tribunal to appreciate the matter in its correct perspective.

The statements made in the writ applications would go to indicate that, the fact that permission from the high power committee has been sought for and that the petitioners were pursuing the same had been stated before the Tribunal. Notwithstanding the above, the impugned order was passed. The materials brought on record by the writ petitioner would go to show that the matter has been pending with the high power committee only from the beginning of April, 2002 and on the date of order of the Tribunal is 17.5.2002, no inordinate delay in the matter of obtaining the requisite permission can be reasonable attributed to the writ petitioner. The further finding recorded that the writ petitioners are not interested in prosecuting the appeals before the Learned Tribunal therefore do not appeal to be correct.

In the considered view on this court and in the facts of the present case as well as in view of the law laid down by the Apex Court in the case of O.N.G.C. (supra), the correct course for the Learned Tribunal would have been to keep the appeals pending and await the final decision of the high power committee in the matter. The same not having been done, 1 am of the considered view that the order dated 17.5.2002 passed by the Learned Income Tax Appellate Tribunal, Gauhati Bench, Guwahati in ITA Nos. 46 and 48 (Gauhati) of 2002 needs to be appropriately interfered with. Accordingly, the order dated 17.5.2002 challenged herein is set aside and quashed and both the writ petitions will stand allowed.