TMI Blog2012 (3) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... ted:- 20-3-2012 - Order The order of the Bench was delivered by Rajendra Singh (Accountant Member).-These appeals by the Department are directed against different orders dated May 8, 2001 and February 24, 2005, both for the assessment year 1997-98, one relating to the original assessment order and the other in relation to the reassessment order. The assessee has raised disputes on several grounds in relation to the original assessment order whereas the dispute raised in relation to the reassessment order is only on account of disallowance of interest. At the time of hearing of these appeals, the learned authorised representative for the assessee at the very outset pointed out that tax effect involved in these appeals was less than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the second appeal in April 2005, the said Circular of the Board was in force and, therefore, no appeal was required to be filed by the Revenue. It was further submitted that the Central Board of Direct Taxes, vide Instruction dated July 17, 2003, had clarified that monetary ceiling/tax effect referred to the Circular issued by the Board meant revenue effect which denoted the amount of tax, interest, penalty, fine or any other sum involved. Thus it was clear that in calculating monetary limit there should be some real tax effect involved. The Central Board of Direct Taxes vide Instruction No. 5 of 2008, dated May 15, 2008, for the first time clarified that the tax effect would mean notional tax effect in case of losses. Paragraph 11 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No.5 of 2008 and tax effect being less than Rs. 2 lakhs, appeal was held to be non-maintainable. It was accordingly submitted that case of the assessee in both appeals was covered by the aforesaid judgment and appeals should be dismissed as non-maintainable. The learned Departmental representative on the other hand argued that judgment of the hon'ble High Court of Delhi in the case of Continental Construction Ltd. [2011] 336 ITR 394 (Delhi), was not binding on the Mumbai Bench of the Tribunal. Similarly the decision of the Delhi Bench was also not binding. It was also submitted that the notional tax effect as clarified by the Central Board of Direct Taxes in Instruction No. 5 to 2008 will have retrospective application and will apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tructions which were in operation at the time of filing of appeal. The hon'ble High Court of Delhi in the case of Continental Construction Ltd. [2011] 336 ITR 394 (Delhi), have held that though for the purpose of monetary limit, circular issued by the Central Board of Direct Taxes prescribing a particular limit would apply to all pending appeals but the notional tax effect as prescribed in the Instruction dated May 15, 2008 would be prospective and would not apply to pending appeals. Following the said judgment, the Delhi Bench of the Tribunal in the case of ITO v. Speciality Coatings and Lamination Ltd. [2012] 144 TTJ (Delhi) 532, has held that the real tax effect and not the notional tax effect has to be taken into account while computing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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