ORDER
1. In this reference, relevant to the assessment year 1979-80, the following questions have been referred for our opinion:
1. Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal (‘Tribunal’) was correct in law in holding that the extra shift allowance use available to the assessee-company on security fencing?
2. Whether on the facts and in the circumstances of the case, the Tribunal was justified in confirming the order of the Commissioner (Appeals) that the expenditure on account of medical reimbursement to the employee could not be treated as perquisite?
2. When the matter was listed on 1-3-2007, we had noted that the revenue was required to take approval of the Committee on Disputes (‘COD’) before proceeding any further in the appeal. Therefore, we adjourned the matter to 27-9-2007.
3. We had also noted in the said order dated 1-3-2007 that we were giving a long date so that a decision could be taken by the COD one way or the other. Since the reference was of 1985 we observed that we would not like to adjourn the matter’ further on the next date. Therefore, we said that if the approval is not received, the reference was liable to be returned unanswered.
4. In Oil & Natural Gas Commissions. Collector of Central Excise (1994) 116 CTR (SC) 643, the Supreme Court held that the clearance of the High-Powered Committee should be obtained within a month of filing of an appeal or a petition. It was further mandated that such approval would be required at every stage of the litigation.
5. In the light of the decision of the Supreme Court in Oil & Natural Gas Commission s case (supra) we would have expected the revenue to have sought the approval of the COD in this matter, on its own, way back in 1994 itself. Even if one were to take a lenient view, and presume that the revenue was unaware of the legal position till 1st March, 2007 when this Court reminded the revenue of it, the revenue should have applied to the COD for approval on or before 31-3-2007.
6. Learned Counsel for the revenue informs us that the revenue applied to the COD for approval only on 23-5-2007, and that the decision of the COD is awaited. As already noted, since the reference is 22 years old, we would have thought that the revenue would have acted with promptitude and applied for the COD approval within the prescribed time. However, it has not done so.
7. Following the law laid down by the Supreme Court in Oil & Natural Gas Commission’s case (supra) which was followed by us in CIT v. P.N.B. Housing Finance Ltd. (IT Appeal No. 1167 of 2006, decided on 19-12-2006) we are unable to condone the delay in the revenue approaching the COD for approval.
8. As indicated in our order dated 1-3-2007, since the approval from the COD has not been obtained by the revenue for pursuing this matter, we return the reference unanswered.