Gujarat Mineral Development Corp vs. ITAT (Gujarat High Court)

DATE: (Date of pronouncement)
DATE: August 27, 2009 (Date of publication)

Click here to download the judgement (gujarat_mineral_psu_cod_clearance.pdf)

State Govt. Undertakings do not need COD clearance

Cross appeals filed by the assessee, a State Govt. undertaking, and the department were dismissed by the Tribunal on the ground that the parties had not obtained the approval of the Committee on Disputes (“COD”). The assessee as well as the department challenged the decision of the Tribunal. HELD, reversing the decision of the Tribunal:

(1) Four judgments of the Supreme Court (ONGC vs. CCE 1992 Supp (2) SCC 432, ONGC vs. CCE 1995 Supp (4) SCC 541, ONGC vs. CCE 2004 (6) SCC 437 and MTNL vs. CBDT 267 ITR 647) deal with disputes between public sector undertakings of the Central Government and a Department of the Central Government, while the fifth judgement (Chief Conservator of Forests vs. Collector (2003) 3 SCC 472) deals with a dispute was between two Departments of the State Government. The directions made by the Apex Court have to be read in context and in backdrop of the controversy before the Apex Court. There is not a single order 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. 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.

(2) Apart from the above, a more fundamental aspect of the matter is that the Tribunal is a creature of statute. Under sections 252 to 254 and connected provisions, the Tribunal does not have the power to determine whether an appeal should be admitted or not except on the ground of limitation. The Tribunal has no right of holding that an appeal cannot be admitted.

Note: The Court’s attention was not drawn to the judgement in ONGC vs. CIDCO (2007) 7 SCC 39 where it was held that even disputes between the Central Government and State Government entities had to be first cleared by a specially formed committee before being referred to Court for adjudication.
See Also: Maharashtra State Warehousing vs. DCIT 22 DTR 531 (ITAT Pune) (where the law in the light of ONGC vs. CIDCO is discussed in detail) and CIT vs. Tamilnadu Electricity Board 223 CTR 389 (Mad.)