High Court Of Delhi
Mahanagar Telephone Nigam Ltd. vs. CIT & ANR.
Sections ART. 226, 220(6)
Asst. Year 2002-2003
B.C. Patel, C.J. & Badar Durrex Ahmed, J.
Civil Writ Petn. No. 3605 of 2004
11th March, 2004
Counsel Appeared
Dr. A.M. Singhvi with Navneet Negi, for the Petitioner : Sanjeev Khanna with Ms. Prem Lata Bansal & Ajay Jha, for the Respondents
JUDGMENT
B.C. Patel, C.J. :
Mahanagar Telephone Nigam Ltd. (MTNL) has approached this Court by this writ petition, inter alia, requesting the Court to issue a writ of certiorari, writ, order or direction in the nature of certiorari or mandamus or other appropriate writ, order or direction under Art. 226 of the Constitution of India, quashing the notice of attachment under s. 226(3) of the IT Act, 1961 (hereinafter referred to as ‘the Act’), dt. 8th March, 2004 issued by the respondent No. 2 (AO).
2. It is also further prayed that the order made by the respondent-authorities under s. 220(6) of the said Act be quashed. An order of assessment came to be made under s. 143(3) of the said Act creating a demand of Rs. 608,01,81,325 vide order dt. 30th Oct., 2003. It is the case of the petitioner that against the said order an appeal has been preferred before the CIT(A) and the same is pending even today. It appears that in view of the demand after adjustment raised by the Revenue, the petitioner approached different forums other than the appropriate forum, namely, the CIT(A) for stay of the demand but was unsuccessful.
3. It is required to be noted at this stage that in view of the Supreme Court decision in the case of ONGC vs. Collector of Central Excise (1994) 116 CTR (SC) : 643 1995 Supp. (4) SCC 541, an application was made before the Committee on disputes. Before the said authority, the prayer was made that either COD issue a direction to the Department of Revenue that the demand of the asst. yr. 2002-2003 be stayed till the disposal of the appeal by the CIT(A) or they be allowed to file a writ petition in the Delhi High Court requesting for a stay of the demand. The committee considered the same in its meeting held on 8th March, 2004 and in para 4 of the minutes of the said meeting, the committee held as under: “4. The committee after hearing the parties, held the view that, since the appeal of MTNL is still pending before the CIT(A), a quasi-judicial authority, and no order has been passed by it till date, the committee was not in a position at this stage to consider any prayer for grant of clearance to MTNL for pursuing a writ petition before Hon’ble High Court for seeking stay of demand.”
4. Thus, it is clear that the committee rejected clearance to MTNL for pursuing a writ petition before the High Court for seeking stay of the demand. In the case of ONGC (supra), the Supreme Court in paras 3 and 4 thereof held as under: “3. We direct that the Government of India shall set up a committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and the Ministry of Law, to monitor disputes between Ministry and Ministry of Government of India, Ministry and public sector undertakings of the Government of India and public sector undertakings in between themselves, to ensure that no litigation comes to Court or to a Tribunal without the matter having been first examined by the committee and its clearance for litigation. Government may include a representative of the Ministry concerned in a specific case and one from the
Ministry of Finance in the committee. Senior officers only should be nominated so that the committee would function with status, control and discipline.
It shall be the obligation of every Court and every Tribunal where such a dispute is raised hereafter to demand a clearance from the committee in case it has not been so pleaded and in the absence of the clearance, the proceedings would not be proceeded with.”
Again the same aspect was considered by the Supreme Court in the case of Chief Conservator of Forests, Govt. of A.P. vs. Collector & Ors. 2003 (3) SCC 472. The Supreme Court in para 14 of the said judgment reiterated the view that “no litigation comes to Court or to a Tribunal without the matter having been first examined by the committee and its clearance for litigation”. In the instant case, the clearance has been specifically rejected and, therefore, the petition is not required to be entertained. The appellant has again approached the COD on 9th March, 2004, inter alia, praying that MTNL may be allowed to pursue the writ petition before the High Court which is being filed “today”, i.e., “9th March, 2004”. As the COD had earlier rejected the application, and the MTNL wanted to approach this Court, in the aforesaid application dt. 9th March, 2004, a prayer was made to permit the MTNL to prosecute the writ petition. Be that as it may, in view of the absence of clearance and the clear dicta of the Supreme Court, it is not possible for this Court to entertain the writ petition.
The learned counsel for the assessee also submitted that earlier on 12th Feb., 2004, the undersecretary, cabinet secretariat, issued a letter to the effect that as the case had been referred to the committee on disputes, no coercive action be taken against the appellant (assessee) till the matter was disposed of by the committee. The learned counsel contended that in view of this, coercive action need not be taken by the Revenue to recover the amount particularly as the second application dt. 9th March, 2004 is pending. However, we are of the view that when the clearance has been refused, there is no question of entertaining this petition. The learned counsel further submitted that in such eventuality the petitioner would be rendered as being without any remedy. Therefore, it was contended that despite the Supreme Court decisions, this Court ought to interfere under Art. 226 to see that the petitioner is not left without a remedy. It may be noted that when the appeal before the CIT(A) was preferred, MTNL had not filed any application for stay. In fact, the stay application has been preferred only after the COD disposed of the application. The petitioner’s appeal as well as application for stay is pending before the CIT(A), it will be for him to decide the same in accordance with the law. It may also be noted that the powers under Art. 226 of the Constitution of India are discretionary. In the instant case, when there is an appropriate forum to grant relief, it is not necessary for this Court to interfere.
7. For these reasons, we dismiss the writ petition.
[Citation : 270 ITR 237]
