TMI Blog2014 (8) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... ore ITAT on income tax matters, as issued vide Instruction No.5/2014 FNo279/Misc.142/2007-ITJ(Pt) dated 10th July, 2014 will apply to pending appeals also for the reason that the same is exactly identical to earlier instructions – revenue could not point out any exception to the Circular – Decided against Revenue. - ITA No. 340/Kol/2012 - - - Dated:- 12-8-2014 - Sri Shamim Yahya, AM And Sri George Mathan, JM,JJ. For the Appellant : Smt. Madhu Malati Ghosh, ld.JCIT/Sr.DR For the Respondent : Shri Anath Bandhu Maitra, Advocate, ld.AR ORDER Sri George Mathan, Judicial Member This is an appeal filed by the revenue against the order of the learned Commissioner of Income-tax (Appeals), XXXVI, Kolkata in appeal no. 443/CIT(A)- XXXVI/Kol/Wd-3, MSD/08-09/771 dated 02/12/2011 for the assessment year 2006-07. 2. Smt. Madhu Malati Ghosh, learned JCIT/Sr.DR represented on behalf of the revenue and Shri Anath Bandhu Maitra, Advocate, learned AR represented on behalf of the assessee. 3.. At the outset, it was stated by Ld. Counsel for the assessee that tax effect in this appeal of Revenue is below the prescribed monetary limits for filing of appeals before ITAT. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases as well even though there was a specific condition in that instruction also that the same would apply to appeals file on or after February, 2011. Hon'ble High Court has considered this issue as under:- 6. The question about applicability of Instruction No.3 of 2011 had been considered and decided by the Aurangabad Bench of the Bombay High Court in Tax Appeal No. 78 of 2007, The Commissioner of Income Tax v. Smt. Vijaya V. Kavekar decided on 29.7.2011. The Division Bench, after considering earlier Instructions and various decisions of the Courts on Instructions, relying on the decision in Commissioner of Income Tax vs. Madhukar K. Inamdar (HUF) reported in (2010) 229 CTR (Bom) 77, has held in paragraphs 9, 10, 11, 14 and 17 as under: 9. As stated earlier, the Income Tax Act was amended and Section 268A has been introduced on the Statute book with retrospective effect. Section 268A carves out an exception for filing of appeals and References under Section 260 A of the Act. The legislature has prescribed that the CBDT is empowered to issue circulars and instructions from time to time, with regard to filing of appeals depending on the tax effect involved. Thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstructions of the CBDT, can contend that the circular dt. 15th May, 2008 issued by the CBDT is applicable to the cases filed after 15th May, 2008 and in compliance thereof, they do not file appeals, if the tax effect is less than ₹ 4 Lakhs; but the said circular is not applicable to the cases filed prior to 15th May, 2008 i.e. to the old pending appeals, even if the tax effect is less than ₹ 4 Lakhs. In our view, there is no logic behind this belief entertained by the Revenue. The Court has further held that the prevailing instructions fixing the monetary limit for the tax effect would hold good even for pending cases. Accordingly, the Court dismissed all the appeals having a tax effect of less than ₹ 4 Lacs. 10. The new CBDT instructions have been issued on 9th February, 2011, being Instruction no. 3 of 2011. The monetary limit has been raised again and clause 3 of the instructions provides that appeals shall not be filed in cases where the tax effect does not exceed the monetary limits prescribed, henceforth. The monetary limits prescribed for filing an appeal under Section 260A before the High Court has been raised to ₹ 10 Lacs. This instruction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he pending appeals. (ii) As the tax effect in the instant case is less than ₹ 10 lakhs, the appeal stands dismissed on the ground of monetary limit, without expressing any opinion on the merits of the claim, making it clear that the Department is at liberty to proceed against the assessee in future, if there any amount due from the assessee, on similar issue and if it is above the monetary limit prescribed. 5. We find from the above case law of Hon'ble Gujarat High Court in the case of Sureshchandra Durgaprasad Khatod (HUF), (supra) that in the similar situation and exactly identical instructions were applied to the appeals filed retrospectively. Hon'ble Gujarat High Court has discussed that almost all High Courts are of the unanimous view, considering the main objective of such instructions that to reduce the pending litigation, where the tax effect is considerable low or small, the appeal is not maintainable. The recent instruction revising the monetary limit to ₹ 4 lakh for filing appeal before ITAT on income tax matters, as issued vide Instruction No.5/2014 FNo279/Misc.142/2007-ITJ(Pt) dated 10th July, 2014 will apply to pending appeals also for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limit specified in para 3. No appeal shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3. In other words, henceforth, appeals can be filed only with reference to the tax effect in the relevant assessment year. However, in case of a composite order of any High Court or appellate authority, which involves more than one assessment year and common issues in more than one assessment year, appeal shall be filed in respect of all such assessment years even if the 'tax effect' is less than the prescribed monetary limits in any of the year(s), if it is decided to filed appeal in respect of the year(s) in which 'tax effect' exceeds the monetary limit prescribed. In case where a composite order / judgment involves more than one assessee, each assessee shall be dealt with separately. 6. In a case where appeal before a Tribunal or a Court is not filed only on account of the tax effect being less than the monetary limit specified above, the Commissioner of Income-tax shall specifically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in all cases, be sent to the Directorate of Income-tax (Legal Research), New Delhi and the decision to file Special Leave Petition shall be in consultation with the Ministry of Law and Justice. 10. The monetary limits specified in para 3 above shall not apply to writ matters and direct tax matters other than Income tax. Filing of appeals in other Direct tax matters shall continue to be governed by the relevant provisions of statute rules. Further filing of appeal in cases of Income Tax, where the tax effect is not quantifiable or not involved, such as the case of registration of trusts or institutions under section 12 A of the IT Act, 1961, shall not be governed by the limits specified in par 3 above and decision to file appeal in such cases may be taken on merits of a particular case. 11. This instruction will apply to appeals filed on or after 10th July, 2014. However, the cases where appeals have been filed before 10th July, 2014 will be governed by the instructions on this subject, operative at the time when such appeal was filed. 12. This issue under Section 268A (1) of the Income-tax Act 1961. 6. On query from the Bench, the Ld. DR could not point out any of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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