TMI Blog2005 (10) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... unadmitted. The Tribunal dismissed the appeals filed by the Revenue as unadmitted because they were filed in violation of the aforesaid CBDT's Instructions. 3. It is admitted by both the parties that in the present cases, the tax including interest is more than Rs. 1 lakh. 4. At the time of hearing of these miscellaneous applications, the learned Departmental Representatives, Shri Raj Kumar, CIT-Departmental Representative, along with Shri Santosh Kumar, senior Departmental Representative drew our attention to the Instruction Nos. 1979, dt. 27th March, 2000, 1985, dt. 29th June, 2000 and Instruction No. 6/2003, dt. 17th July, 2003 and xerox copy of computation of tax in respective appeal. He argued that the CBDT Instructions referred to above by the learned Departmental Representative were available at the time of hearing of the appeals and the same has not been considered by the Tribunal at the time of passing of the aforesaid order. Therefore, he contended that, there is a mistake apparent on the face of the record and he requested that the orders dismissing the appeals of the Revenue in limine by following the decision of the jurisdictional High Court in the case of CIT vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bombay High Court in the case of Blue Star Engineering Co. (Bombay) (P) Ltd. VS. CIT (1969) 73 ITR 283 (Bom) and the decision of the Calcutta High Court in the case of CIT vs. Ballabh Prasad Agarwalla (1998) 149 CTR (Cal) 448 : (1998) 233 ITR 354 (Cal), he submitted that the Tribunal is a final fact-finding authority and recalling of the order is permissible under the law. 6. The learned counsel. Shri C.J. Thakar and Shri S.C. Thakar, Shri Rajesh V. Loya, Shri M. Mani, Shri G.L. Bajaj, Shri M.M. Jain and Shri R.S. Bhattad, appeared for the respondents/assessees and advanced their arguments. Mainly, Shri C.J. Thakar, the learned advocate, argued that the Tribunal had mainly dismissed the appeal filed by the Revenue by following the decision of the jurisdictional High Court in the case of CIT vs. Cameo Colour Co. because the monetary limit in each case is less than Rs. 1 lakh. He stated that the CBDT Instruction dt. 27th March, 2000 is very clear and this circular has been approved by the Hon'ble jurisdictional High Court in the case of Cameo Colour Co. He further submitted that merely issuing other clarificatory Instructions No. 6/2003, dt. 17th July, 2003 does not superse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issuing 'appropriate' directions vide Circular No. 789, under its powers under s. 119, to set things on course by eliminating avoidable wastage of time, talent and energy of the AOs set discharging the onerous public duty of collection of revenue." 8. He vehemently stated that the arguments advanced by the learned Departmental Representative in the present miscellaneous applications have been answered by the Tribunal, Hyderabad Bench, in para 10 of its order reported in (2005) 95 TTJ (Hyd) 376 : (2003) 94 ITD 21 (Hyd) and, therefore, they have no force and the present miscellaneous applications filed by the Revenue deserve to be dismissed. He further submitted that the learned Departmental Representative has not pointed out any mistake in the orders of the Tribunal apparent on the face of record. He further argued that the Circular No. 6/2003, dt. 17th July, 2003 was not brought to the notice of the Bench at the time of hearing of the appeals and the Tribunal has passed the orders on the basis of Instruction No. 1979, dt. 27th March, 2000 and Instruction No. 1985, dt. 29th June, 2000. Since the Instruction No. 6/2003, dt. 17th July, 2003 was not brought to the notice of the Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 169 CTR (Del) 361 : (2002) 253 ITR 131 (Del) and CIT vs. Ramesh Elecric Trading Co. (1993) 203 ITR 497 (Bom). 11. In rebuttal to the arguments advanced by the Authorised Representative of the respondents, Shri Raj Kumar, the learned CIT-Departmental Representative, stated that the only question before the Bench is about the maintainability of appeal and not to decide the merits of the case. He stated that in all the appeals, the tax effect is more than Rs. 1 lakh and inadvertently by mistake unknowingly the Departmental Representative, at the time of hearing of the Departmental appeal gave consent that the tax effect is less than Rs. 1 lakh. He submitted that the benefit of mistake should not be given to the assessee at the cost of exchequer. He requested that the impugned orders in all the aforesaid appeals be recalled because there is a mistake apparent from the record because Instruction No. 6/2003, dt. 17th July, 2003, has not been considered by the Tribunal in the impugned orders. He, therefore, submitted that the impugned orders may be recalled and all the appeals may be admitted and be heard on merits after giving opportunity to the Revenue to represent their cases. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als before SC/HC/Tribunal. In order to avoid ambiguity and to adopt uniformity in approach while filing appeals by the field formations, it is hereby clarified by the Board that the word 'monetary limit' and 'tax effect' in the aforesaid instructions be read as 'revenue effect' which denotes amount of tax, interest, penalty, fine or any other sum involved. This instruction is clarificatory in nature and will apply to litigation under other direct taxes also e.g. wealth-tax, gift-tax, estate duty, etc. Yagyasaini Kakkar Dy. Secretary to the Government of India." 13. We have perused the aforesaid instructions of the CBDT issued from time to time along with the order of the Tribunal. Hyderabad Bench in (2005) 95 TTJ (Hyd) 376 : (2005) 94 ITD 21 (Hyd) and the order of the Tribunal Nagpur Bench, Nagpur, dt. 17th Sept., 2002 in the case of ITO vs. Roopchand Jain, relied upon by the assessee's counsel. We have also perused the citations cited on behalf of both the parties. 14. In the Instruction No. 1985, dt. 29th June, 2000, it is also mentioned that the new monetary limit would apply with reference to each case taken singly. In other words, in group cases, each case should i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, it would be against the concept of justice and fair play and also against the principle of legal policy not to allow the Tribunal to exercise such power. 16. In the case of Neeta S. Shah vs. CIT (1991) 95 CTR (Kar) 139: (1991) 191 ITR 77 (Kar), the Karnataka High Court held that when an earlier order of the Tribunal is founded on a mistaken assumption and the error is discovered, the power of rectification under s. 254(2) can be invoked because the very basis of the earlier order requires rectification. 17. The primary aim of the legal policy is to do justice. It must be assumed that Parliament does not intend to do injustice or to allow a wrong thing to continue contrary to law or public policy. 18. Accordingly, applying the above principles, it cannot be said that the Tribunal, in the instant case, wanted to exercise its power of review. It is a case where the Tribunal is of the view that the clarificatory instructions of the CBDT had not been considered while taking into consideration the revenue effect in the aforesaid appeals and holding that the tax effect involved in each of the aforesaid appeal is below Rs. 1 lakh. 19. It is not the case of recalling the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned Departmental Representative has contended that since the Tribunal is a last fact-finding authority, it can recall its orders for deciding the same on merits. 23. The learned counsel, Shri C.J. Thakar strongly relied on the decision of the Tribunal, Hyderabad Bench reported in the case of Nb. Syed Jaffar Ali Khan. We have gone through the decision and we are of the considered opinion that the decision of the Hyderabad Bench is not applicable to the facts of the present case because the question before the Tribunal, Hyderabad Bench, was whether the appeals filed by the Revenue in the case of wealth-tax matters having tax effect of less than Rs. 1 lakh are contrary to Instruction No. 1979 and are liable to be dismissed as not maintainable. The Tribunal, Hyderabad Bench, decided the issue against the Revenue considering the Instruction No. 1979, dt. 27th March, 2000. The question before us in the present case is whether the monetary limit and tax effect in the aforesaid instruction be read as revenue effect which denotes the amount of tax, interest, penalty or fine or any other sum involved. Considering this clarificatory Instruction No. 6/2003, dt. 17th July, 2003, the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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