TMI Blog2011 (2) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of filing. - ITA No. 209 of 2003 - - - Dated:- 4-2-2011 - MR JUSTICE ADARSH KUMAR GOEL, MR. JUSTICE AJAY KUMAR MITTAL, MR. JUSTICE ALOK SINGH, JJ. Present:- Mr. Dinesh Goyal, Advocate for the appellant. Mr. Ravish Sood and Mr. Maninder Arora, Advocates for the respondent. Adarsh Kumar Goel,J. 1. As per office report, file was not available on account of fire in the Court premises. The file has been reconstructed on the basis of paper book furnished by learned counsel for the appellant. 2. The matter has been placed before this bench in pursuance of order of reference dated October 5, 2010 to the following effect:- When this appeal was taken up, learned counsel for the assessee raised a preliminary objection relying on a judgment of this Court in CIT v. Abhinash Gupta, (2010) 41 DTR (P H) 129. He submitted that the tax effect involved in the appeal was below the limit prescribed for filing of appeal by circular issued in the year 2008. Learned counsel for the revenue submitted that the circular issued in the year 2008 did not have retrospective effect and did not control the appeal already filed which had to be decided according to the pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, there will always be uncertainty. Such an interpretation would also be against the accepted principle that act of Court will not prejudice anyone (actus curiae neminen gravabit). A particular case where the Court may not go into merits on account of smallness of the amount may stand on different footing. 6. Learned counsel for the assessee opposed this submission. It is submitted that the view taken in Madhukar K.Inamdar as followed by this Court in Abhinash Gupta should be followed and all pending appeals should be governed by circular dated 15.5.2008. If the tax effect involved is less than the monetary limit now specified, the said appeal should not be considered on merits even if appeal was properly filed as per prescribed monetary limit at appropriate time. 7. To appreciate the rival submissions, it will be appropriate torefer to the relevant provision and circulars:- S.268A: Filing of appeal or application for reference by income-tax authority. The Board may, from time to time, issue orders, instructions or directions to other income-tax authorities, fixing such monetary limits as it may deem fit, for the purpose of regulating filing of appeal or application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not been following the instructions issued by the CBDT while filing appeals and has directed that wherever, the appeals already filed fail to meet the criteria of monetary limits the same should be withdrawn unless the question of law involved or raised in appeal or referred to the Court is of a recurring nature required to be settled by the Court. The undersigned is therefore directed to request that all appeals already filed by the Department before the Bombay High Court should be examined case to case basis by the respective CCsIT/CsIT and in cases where the criteria of monetary limits as per the prevailing instruction is not satisfied, the appeal should be withdrawn unless the question of law involved or raised in appeal or referred to the High Court is of a recurring nature required to be settled by the Court. (Sanjay K.Bharat) Under Secretary to the Govt. of India Circular dated 15.5.2008 Revision of monetary limits for filing appeals by the Department before Income Tax Appellate Tribunals, High Courts and Supreme Court, measures for reducing litigation INSTRUCTION NO.5/2008, DATED 15-5-2008 Reference is invited to Board s instructions No.1979 dated 27.3.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e year, appeal shall be filed in respect of all 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 file appeal in respect of the year(s) in which the tax effect exceeds the monetary limit prescribed. 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 record that even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in this instruction . Further, in such cases, there will be no presumption that the Income-tax Department has acquiesced in the decision on the disputed issues in the case of the same assessee for any other assessment year, or in the case of any other assessee for the same or any other assessment year, if the tax effect exceeds the specified monetary limits. 7. In the past, a number of instances have come to the notice of the Board, whereby an assessee has claimed relief from the Tribunal or the Court only on the ground that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred to the High Court for opinion is of a recurring nature required to be settled by the higher Court. 11. The aforesaid circular makes it clear that on the date of issuance of circular, prevailing instructions fixing monetary limit will hold good even for pending cases. Adopting the same approach, we are of the considered view that the CBDT circular dated 15th May 2008 would be very much applicable to the pending cases requiring Department to withdraw cases wherein the tax effect is less than the prescribed monetary limits. 12. At this juncture, it will also be relevant to mention that it was necessary of the CBDT to put a caveat, while issuing instructions vide its circular dated 5th June 2007 that the appeals involving substantial question of law of recurring nature should not be withdrawn since provision like s.268A of the IT Act was absent. Now, in view of insertion of the provision of s.268A by the Finance Act, 2008 w.e.f Ist April 1999 in the IT Act, 1961, no prejudice could be caused to the revenue even if the cases involving legal issues of recurring nature are withdrawn, since the newly inserted provision takes care of the adverse eventuality which could have b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs issued by the CBDT laying down monetary limits for filing of appeals are mandatory and binding on the revenue. The contention of the learned counsel for the revenue that Circular No.5 of 2008 is not applicable to the appeals filed prior to 15th May 2008 cannot be accepted. The similar issue has been considered by the Bombay High Court in CIT v. Madhukar K.Inamdar (HUF) s case (supra) wherein it was held that Circular No.5 of 2008 is also applicable on the pending appeals, irrespective of the fact whether the same were filed before or after 15th May, 2008 .. 8. While agreeing with the view taken by the Bombay High Court, we are of the view that Circular No.5 of 2008 would be applicable to the cases pending before this Court either for admission or for final disposal and that the said circular is binding on the Revenue. Since admittedly the tax effect in this appeal is less than Rs.4 lacs, therefore, in our opinion, the appeal filed by the revenue is not maintainable and the same is hereby dismissed with no order as to costs. 10. After due consideration of rival contentions, we are in agreement with the contention raised on behalf of the revenue. Circular laying down mone ..... X X X X Extracts X X X X X X X X Extracts X X X X
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