TMI Blog2009 (8) TMI 755X X X X Extracts X X X X X X X X Extracts X X X X ..... ng credit of tax amounting to Rs. 1,50,000 given in the case of the assessee against the challans in the name of his wife Smt. Saraswati Devi as double credit of the same challans in the case of the assessee as well as to his wife was an apparent and patent mistake and not permissible under law." 2. As can be seen from the ground raised by the Department in this appeal, it is noticed that the ground is relating to issues which have tax effect below Rs. 2 lacs. Therefore, the learned Departmental Representative was asked to address the Bench about the maintainability of all these appeals in view of the notifications issued by the CBDT prescribing the monetary limits for filing the appeal by the Department before Tribunal by issuing Instruction No. 5 of 2008, dt. 15th May, 2008. 3. Learned Departmental Representative has contended that all these appeals are involving question of law having repetitive recurrence. Therefore, the Department's appeal is very much maintainable before the Tribunal. In support of this the learned Departmental Representative also relied on the decision of Hon'ble Rajasthan High Court in the case of CIT vs. Rajasthan Patrika Ltd. (2002) 178 CTR (Raj) 414 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 2. Appeal under s. 260A before High Court 4,00,000 3. Appeal before Supreme Court 10,00,000 4. For this purpose, 'tax effect' means the difference between the tax on the total income assessed and the tax that would have been chargeable had such income been reduced by the amount of income in respect of the issue against which appeal is intended to be filed (hereafter referred to as 'disputed issues'). However, the tax will not include any interest thereon. Similarly, in loss cases notional tax effect should be taken into account. In the cases of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against. 5. The AO shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of every assessee. If, in the case of an assessee, the disputed issues arise in more than one assessment year, appeal shall be filed in respect of 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 find in respect of an assessment year or years in which the tax effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titutional validity of the provisions of an Act or rule are under challenge. (b) Where Board's order, notification, instruction or circular has been held to be illegal or ultra vires. (c) Where Revenue audit objection in the case has been accepted by the Department. 9. The proposal for filing SLP under Art. 136 of the Constitution before the Supreme Court should, in all cases, be sent to the Directorate of IT (Legal and Research), New Delhi and the decision to file SLP shall be in consultation with the Ministry of Law and Justice. 10. The monetary limits specified in para 3 above will not apply to writ matters. 11. This instruction will apply to appeals filed on or after 15th of May, 2008. However, the cases where appeals have been filed before 15th of May, 2008 will be governed by the instructions on this subject, operative at the time when such appeal was filed. 12. This issues under s. 268A(1) of the IT Act, 1961. Yours faithfully, Sd/- (Madhukar Kumar Bhagat) Dy. Secretary to the Government of India". Now ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of sub-ss. (2), (3) and (4) shall apply accordingly." 7. As per this sub-section, instructions or directions issued by the Board fixing monetary limits for filing appeal or application for reference shall be deemed to have been issued under sub-s. (1) and provisions contained in sub-ss. (2), (3), (4) shall apply accordingly. The provisions contained in sub-s. (1) enables the Board to issue orders, instructions or directions to IT authorities fixing monetary limits for the purpose of regulating filing of appeal or application. The sub-s. (2) says that if the IT authority has not filed any appeal or application on any issue in the case of assessee in an assessment year it will not preclude such authority from filing an appeal or application on the same issue in the case of same assessee for any subsequent year or in the case of any other assessee for the same year. The provisions contained in sub-s. (3) state that notwithstanding that no appeal or application has been filed by IT authorities in accordance with the orders or instructions or directions issued under sub-s. (1) is not lawful for the assessee to contend that the IT authorities have acquiesced on the disputed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n High Court rendering the judgment in the case of Rajasthan Patrika and relied on by the learned Departmental Representative. Therefore, in the presence of specific provisions contained in s. 268A of the Act, the instructions issued by Department prescribing in the monetary limits for filing appeals by the Department before the Tribunal are necessarily to be considered and regarded while hearing those appeals. Undisputedly, as per the notifications or instructions stated the monetary limit for filing the appeals before the Tribunal is prescribed by the CBDT. Since all these appeals having been raising the issues which have the tax effect of below Rs. 2 lacs and no exception having been carved by the learned CIT in the approval accorded under s. 253(2) of the Act for filing these appeals, the same are not maintainable before the Tribunal in the light of the instructions of CBDT read with provisions contained in s. 268A of the IT Act (stated supra). Therefore, we are of the considered view that this appeal is not at all maintainable before the Tribunal having been raising the issues having tax effect of below Rs. 2 lacs. Even before the provisions contained in s. 268A were inserted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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