SOUMITRA PAL,J. - (1.) THIS writ petition has been filed by the Kolkata Port Trust seeking a direction upon the Revenue to modify the assessment for the assessment years 2003 -04, 2004 -05 and 2005 -06 ('the said assessment years' for short) and to deal with and dispose of by appropriate orders the applications made by the petitioner under Section 154 of the Income -tax Act, 1961 (hereinafter referred to as 'the Act'), for the said assessment years and to amend the assessments for the said assessment years in accordance with the amended provisions of Section 43(6) of the said Act after the insertion of Explanation 6. Prayer has been made for a direction upon the respondents directing them not to take any steps whatsoever for recovery of any demand purportedly made in terms of the orders of assessment as originally passed for any of the said assessment years without modifying such assessment in terms of the order dated June 30, 2008, passed by the Commissioner of Income -tax (Appeals) and on the basis of the applications made under Section 154 of the Act for the said assessment years.
(2.) LEARNED senior advocate appearing on behalf of the Revenue has submitted that in view of the settled proposition of law laid down by the apex court in the case of Mahanagar Telephone Nigam Ltd. v. Chairman, CBDT reported in : [2004] 267 ITR 647 wherein it has been held that a clearance by the High Powered Committee is essential for going ahead with a litigation in a court of law and since the Kolkata Port Trust, by a letter dated January 2, 2009, has prayed for clearance from the High Powered Committee for pursuing the instant writ petition, the writ petition is premature and thus not maintainable. Submission has been made that the law laid down in Mahanagar Telephone Nigam Ltd. : [2004] 267 ITR 647 has been followed by the Delhi High Court in CIT v. Delhi Tourism and Transportation Development Corporation Ltd. : [2005] 274 ITR 35. Learned senior advocate appearing on behalf of the petitioner submits that in view of the amended provisions of Section 43(6) of the Act and after the insertion of Explanation 6 the petitioner is entitled to relief for the depreciation claimed for the assessment years in question. It has been submitted that the judgment passed by the apex court in Mahanagar Telephone Nigam Ltd. : [2004] 267 ITR 647 was moved against the show -cause notice. With regard to the judgment in the case of CIT v. Delhi Tourism and Transportation Development Corporation Ltd. : [2005] 274 ITR 35 (Delhi) it has been submitted that it does not appear from the facts whether an application seeking permission was before the High Powered Committee.
(3.) HEARD the learned advocates for the parties. In Mahanagar Telephone Nigam Ltd. : [2004] 267 ITR 647, 653: 'The mechanism set up by this Court is not, as suggested by Mr. Andhyarujina, 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 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.. Even if the Department/public sector undertaking finds the decision unpalatable discipline requires that they abide by it.' The Supreme Court held (page 653) '..that as clearance has not been given to the appellants these proceedings cannot be proceeded with.' In Collector of Central Excise, Calcutta v. Jeesop and Co. Ltd. reported in [1999] 9 SCC 181 which was taken note of in the judgment of Mahanagar Telephone Nigam Ltd. : [2004] 267 ITR 647 it has been held that (page 182) 'In short, litigation of this kind between the Central Government and the public sector undertakings is not to be resorted to without the matter being examined by a high powered Committee of Secretaries and with its clearance.' Therefore, since I find that clearance by the said Committee is the sine qua non or obligatory before proceeding with a matter in a court of law and in its absence proceedings cannot be proceeded with and as I find that by letter dated January 2, 2009, the petitioner has prayed the matter before the High Powered Committee for grant of necessary clearance for pursuing the matter before the High Court at Calcutta no order is passed on this writ petition. Hence, the writ petition is dismissed. However, the petitioner is at liberty to file application for revival of the writ petition after clearance is obtained from the Committee.;