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2009 DIGILAW 3105 (ALL)

U. P. PARIYOJNA PRABANDHAK v. COMMISSIONER, TRADE TAX, U. P. , LUCKNOW

2009-09-10

SATISH CHANDRA

body2009
JUDGMENT DR. SATISH CHANDRA, J. - All the revisions have been filed by the assessee under section 11 of the U.P. Trade Tax Act, 1948 against the different orders of the Tribunal dated April 26, 2007 and March 28, 2006, respectively, for the assessment years mentioned above. The brief facts of the case are that the assessee is the Corporation of U.P. Government known as "U.P. Bridge Corporation" who is responsible to construct, execute, carry out, improve, work, develop, administer, manage, control or maintain all types of bridges and other structures works and conveniences pertaining to the bridges including approach road to bridges. During the assessment years under consideration, the assessing officer has opined that the assessee is engaged in the business activities by way of contract work, so he levied the tax. The same was confirmed not only by the first appellate authority but also by the Tribunal. Being aggrieved, the assessee has knocked at the door of this court through the present revisions. In the present revisions, the dispute is between a Government undertaking and a Government Department of U.P. Without going into the merits of the present litigation, it may be mentioned that it is neither appropriate nor permissible for two Departments of a State or the Union of India to fight litigation in a court of law. Indeed, such a course cannot but be detrimental to the pubic interest as it also entails avoidable wastage of public money and time. Filing of a revision by one Department against the other in the High Court is not in good taste. It requires to evolve a mechanism to set at rest all inter-departmental controversies at the level of the Government and such matters should not be carried to a court of law for resolution of the controversy. In the case of disputes between public sector undertakings and the Union of India, the honourable apex court in Oil and Natural Gas Commission v. CCE [1992] Suppl 2 SCC 432 called upon the Cabinet Secretary to handle such matters. In the case of disputes between public sector undertakings and the Union of India, the honourable apex court in Oil and Natural Gas Commission v. CCE [1992] Suppl 2 SCC 432 called upon the Cabinet Secretary to handle such matters. In Oil and Natural Gas Commission v. CCE [1995] Suppl 4 SCC 541, the honourable Supreme Court directed the Central Government to set up a Committee consisting of representatives from the Ministry of Industry, the Bureau of Public Enterprises and Ministry of Law, to monitor disputes between Ministry and Ministry of the 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. The 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. Undoubtedly, the right to enforce a right in a court of law cannot be effaced. However, it must be remembered that courts are overburdened with a large number of cases. The majority of such cases pertains to Government Department and/or public sector undertakings. As is stated in Chief Conservator of Forests, Govt. of A.P. v. Collector [2003] 3 SCC 472 it was not contemplated by the framers of the Constitution or the Civil Procedure Code that two Departments of a State or Union of India and/or a Department of the Government and a public sector undertaking fight a litigation in a court of law. Such a course is detrimental to public interest as it entails avoidable wastage of public money and time. These are all limbs of the Government and must act in co-ordination and not confrontation. The mechanism set up by the honourable Supreme Court is not only to conciliate between Government Departments, it is also set up for purposes of ensuring that frivolous disputes do not come before courts without clearance from the High Powered Committee. If it can, the High Powered Committee will resolve the dispute. If the dispute is not resolved the Committee would undoubtedly give clearance. However, there could also be frivolous litigation proposed by a Department of the Government or a public sector undertaking. If it can, the High Powered Committee will resolve the dispute. If the dispute is not resolved the Committee would undoubtedly give clearance. However, there could also be frivolous litigation proposed by a Department of the Government or a public sector undertaking. This could be prevented by the High Powered Committee. In such cases there is no question of resolving the dispute. The Committee only has to refuse permission to litigate. No right of the Department/public sector undertaking is affected in such a case. The litigation being of a frivolous nature must not be brought to court. To be remembered that in almost all cases one or the other party will not be happy with the decision of the High Powered Committee. The dissatisfied party will always claim that its rights are affected, when in fact, no right is affected. The Committee is constituted of highly placed officers of the Government, who do not have an interest in the dispute, it is thus expected that their decision will be fair and honest. Even if the Department/public sector undertaking finds the decision unpalatable, discipline requires that they abide by it. Otherwise the whole purpose of this exercise will be lost and every party against whom the decision is given will claim that they have been wronged and that their rights are affected. This should not be allowed to be done. Further, the apex court also held that 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. The same has been reiterated in the latest decision of the Supreme Court in the case of CIT v. Oriental Insurance Co. Ltd. (In Civil Appeals Nos. 4529 of 2008, etc., decided on July 18, 2008) [2008] 304 ITR 55 (SC). To fulfil the said obligation, this honourable High Court directed in the case of Pradeshiya Industrial and Investment Corporation, U.P., Limited v. Deputy Collector (Collections), Sales Tax reported in [1999] 116 STC 415 (All); [1994] UPTC 833, that the dispute may be sorted out at the Secretary Level Committee in view of the G.O. No. 160/Sat-Nayaya-4-9/91, dated January 16, 1991. To fulfil the said obligation, this honourable High Court directed in the case of Pradeshiya Industrial and Investment Corporation, U.P., Limited v. Deputy Collector (Collections), Sales Tax reported in [1999] 116 STC 415 (All); [1994] UPTC 833, that the dispute may be sorted out at the Secretary Level Committee in view of the G.O. No. 160/Sat-Nayaya-4-9/91, dated January 16, 1991. Similar views were expressed in the case of Executive Engineer, Electricity Transmission Division, Saharanpur v. Commissioner of Trade Tax (ITR No. 247 of 2000 dated March 16, 2000), [2000] UPTC 501 (All). Hence, I direct that the revisionist and the Trade Tax Department should sort out the dispute involved in the present revisions through Secretary Level Committee at the earliest in view of abovementioned G.O. dated January 16, 1991. Until final decision taken by the Committee, the recovery proceedings shall remain stayed pertaining to the present revision. In the light of above, all the revisions are disposed of accordingly.