Case law › Circulars › 2012 › Letter [F.no. 279/MISC/M-30A/2011-ITJ], dated 25-9-2012

CBDT circular 25 September 2012

Letter [F.no. 279/MISC/M-30A/2011-ITJ], dated 25-9-2012

Report in respect of cases involving COD (Committee on Disputes) clearance requisitioned vide letter no. [F-279/M-30A/2011-ITJ] due to be received since 31-12-2011

What this is

Letter [F.no. 279/MISC/M-30A/2011-ITJ], dated 25-9-2012 was issued by the Central Board of Direct Taxes on 25 September 2012. Its subject is Report in respect of cases involving COD (Committee on Disputes) clearance requisitioned vide letter no. [F-279/M-30A/2011-ITJ] due to be received since 31-12-2011.

What it does

Calls for a report on what became of the cases that had been held up for clearance from the Committee on Disputes. The annexed letter of 12 December 2011 records the position: the Cabinet Secretariat, by Office Memorandum of 1 September 2011, superseded its 1991 and 1994 memoranda which had required every dispute between two wings of Government to go before the Committee, and, following the Supreme Court's order in Electronics Corporation of India Ltd, clarified that public sector undertakings and Central Government Ministries and Departments no longer need the Committee's permission before approaching courts and tribunals, the Committee standing wound up from the date of that order. The Board accordingly directed that no reference is to be made by the department any more, that all its instructions on such matters stand superseded, and that cases dismissed for want of clearance, or where clearance was pending or the proposal never sent, be revived on priority by filing revival applications. This letter now asks each Chief Commissioner for a list of cases dismissed for want of clearance in which revival applications have been filed, with the assessee's name, the assessment years and the tax in dispute; a list of cases that were pending for clearance at any level and their present status; and any instance where an assessee has filed a revival application after his own petition was dismissed for want of clearance. A nil report is to be sent where there is no such pendency, and the report was due by 5 October 2012.

Why it was issued

The report requisitioned by the earlier letter had not come in, and the Board wanted to know how far the revival exercise had gone after the Committee was wound up.

Who it reaches

Assessees whose appeals or the department's appeals were dismissed for want of clearance from the Committee
Public sector undertakings in tax litigation with the department
Assessees facing a revival application in a matter they treated as closed
Chief Commissioners compiling the reports

The instrument, as the Board published it

The words below are the department’s own, reproduced from its published text. Where the department’s copy carried a publisher’s notes after the instrument, those are not reproduced.

Report in respect of cases involving COD (Committee on Disputes) clearance requisitioned vide letter no. [F-279/M-30A/2011-ITJ] due to be received since 31-12-2011
Letter [F.no. 279/Misc/M-30A/2011-ITJ], DATED 25-9-2012
Reference is invited to the letter No. F-279/M-30A/2011-ITJ, dated 12-12-2011 on the above cited subject (Annexure).
In this regard, I am hereby directed to request you that the report on the following points may be provided to this office :
1. List of all the cases which were dismissed by Courts/Tribunal for want of clearance from COD and where revival applications before the respective Courts/ Tribunal have been filed by the Department subsequent to the decision of Apex Court in the case of Electronics Corporation of India Ltd., dated 17-12-2011 and details of the cases thereof including the name of the assessee, AYs involved, quantum of the tax disputed;
2. List of all the cases which were pending for COD clearance at the level of COD/the Board/the field formations and their status as on date; whether appeals were pursued in those matters or not and details of the cases thereof.
The CCsIT are also requested to bring to the notice of Board all the instances where the assessees have filed revival applications before the Courts/Tribunals subsequent to the dismissal of their petition for want of COD clearance.
In case no such pendency w.r.t. COD clearance exists, "NIL" report may be communicated to the Board.
The above requisitioned report may be sent to this office on priority basis and in any case, not later than 5-10-2012.
ANNEXURE
Reference to Committee on Disputes (COD) - Decision of Hon'ble Apex Court in case of Electronics Corporation of India Ltd (Civil Appeal No. 1883 of 2011 arising out of SLP (C) No. 2538 of 2009), dated 17-2-2012
LETTER [F.NO.279/M-30A/2011-ITJ], DATED 12-12-2011
Reference is invited to this office letter of even number dated 15-3-2011, wherein proposals for clearance from COD were kept on hold till clarification from the Cabinet Secretariat.
2. I am hereby directed to enclose O.M. No. A-12034/01/2011-Ad-I, dated 1-9-2011 issued by the Cabinet Secretariat, wherein it has superseded its earlier orders issued vide O.M. No. 53/3/6/91-cab.I, dated 31-12-1991 & O.M. No. 53/3/6/91-cab.I dated 24-1-1994, which required every case between two wings of Government to be referred to 'Committee of Disputes' before taking the case to courts/Tribunals. It has further clarified that pursuant to the order of Apex Court in case of Electronics Corporation of India Ltd. (Civil Appeal No. 1883 of 2011 arising out of SLP (C) No. 2538 of 2009), dated 17-2-2011, PSUs, Ministries/Departments of Central Government do not require the permission of the Committee on Disputes in the Cabinet Secretariat before approaching the Courts and Tribunals with effect from the date of effect of said orders of Supreme Court, i.e. 17-2-2011. The Committee accordingly, stands wound up with effect from the said date.
3. In view of the above, undersigned is directed to say that no reference is required to be made by Income Tax Department to Committee of Disputes before approaching the Courts and Tribunals. Thus, all the instruction and directions with regard to COD matters stand superseded.
4. In this regard all the cases, which have been dismissed by Courts/Tribunal for want of clearance from COD, where clearance from COD was pending or the proposals were not sent by the field formations, should be revived on priority by filing revival applications before the respective Courts/Tribunal. A report for completion of this task should be sent to Board as early as possible and in any case not later than 31-12-2011.
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What to watch

The practical consequence for a taxpayer is the revival application: a matter dismissed only for want of clearance can be brought back before the same forum, so it is not closed on that ground alone.
The requirement of clearance fell away from the date of the Supreme Court's order, and every departmental instruction on such references stands superseded.
The copy gives the date of that order inconsistently in different places, the body putting it at 17 February 2011, so take the date from the judgment itself.
This letter is a call for information; the operative directions are in the annexed letter of 12 December 2011 and in the Cabinet Secretariat's memorandum.

Where you meet it

Where the department moves to revive an appeal that a court or tribunal had dismissed for want of clearance from the Committee on Disputes.

A circular binds the department, not you and not a court. The Board issues a circular to its own officers. An assessee may hold the department to a circular that helps him; the department cannot hold an assessee to one that hurts him, and the Tribunal and the courts decide the law for themselves.

Source: the Income Tax Department’s own published text — its page for this instrument.