TMI Blog2010 (8) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 74 (Gau)/2007. By the order impugned, the appeal filed by the respondent-assessee was allowed. 2. While admitting the appeal, the following substantial question of law was framed: Whether in a case of reassessment under section 147 of the Income-tax Act, 1961 where the foundation of the belief that any income chargeable to tax has escaped assessment is the charge-sheet filed against the assessee in a criminal court, the income-tax authorities should await the verdict of the criminal court or make the assessment independent of the outcome of the criminal trial ? 3. The pleaded facts, in short, are that the respondent-assessee is one of the persons named in the charge-sheet filed by the Central Bureau of Investigation (hereinaft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of Instruction No. 5/2008 dated May 15, 2008 of the Central Board of Direct Taxes (for short "CBDT"). 7. We have heard Mr. U. Bhuyan, learned counsel for the Revenue and Mr.R. Goenka, learned senior counsel for the respondent-assessee. 8. Mr. Goenka by relying on section 268A of the Act as well as the Central Board of Direct Taxes instruction referred to hereinabove has submitted that as in the instant case, the tax effect is less than Rs. 4,00,000, fixed as the mandatory limit for preferring an appeal under section 260A before this court, the instant appeal is per se not maintainable in law and is liable to be dismissed in limine. Contending that the instruction issued by the Central Board of Direct Taxes under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the underlying objective of section 268A, the prescription thereof ought to be construed as directory. According to Mr.Bhuyan, section 268A of the Act cannot be conceded a status either to over reach section 260A or to regulate the same so as to render it otiose. Mr. Bhuyan has urged that in the absence of any express bar, section 268A or any other provision of the Act cannot nullify or scuttle the scope and ambit of section 260A. The enjoinment of section 268A ought to be thus construed as procedural in nature to sub serve the ends of justice. The learned counsel has insisted that in case the primacy to section 268A as urged by the petitioner is granted, substantial question of law involved in a given fact situation would be a casualty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticeably it does not contemplate any monetary limit in addition. As has been stipulated in the Central Board of Direct Taxes Instruction No. 5/2008 datedMay 15, 2008, paragraph 8 covers eventualities where under an appeal can be filed by the Revenue irrespective of the tax effect. These being where (a) the constitutional validity of the provisions of an Act or Rule is under challenge, (b) the Board's order, notification, instruction or circular has been held to be illegal or ultra vires, (c) a Revenue audit objection in the case has been accepted by the Department. 14. Section 268A enjoys the same legislative status as section 260A having been designed by Parliament. Evidently, section 268A is later in point of time. In the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al provision. 16. Though it is quite likely that questions of law may arise as well from variety of other eventualities, having regard to the inter play of sections 260A and 268A as devised by Parliament, such a hypothesis in our estimate cannot be a decisive factor to hold against the efficacy of the latter provision. In any case, the plea of repugnancy between these two sections is presently not in issue. Parliament having consciously inserted section 268A by way of an exception to section 260A in the statute book being fully aware of all the implications thereof, the Central Board of Direct Taxes Circular issued in exercise of the power conferred, in our opinion, can neither be undermined nor rendered ineffective. 17. That the or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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