TMI Blog2013 (10) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Board of Direct Taxes, are binding on the Revenue except 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 ; and (c) a Revenue audit objection in the case has been accepted by the Department. The Memorandum Explaining the Provisions of the Finance Bill, 2008, while highlighting the underlying object of section 268A, clearly reflected the anxiety of Parliament to reduce the litigation in small cases and regulate the right of the Revenue to file or not to file an appeal under section 260A. Consequently, there is an inherent limitation on the Revenue's right to file appeal under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccounts audited under section 33B of the said Act, even if the books of account have not been properly maintained ?" Before, however, the appeal could be heard on the merits, the maintainability of the present appeal has been put to challenge, at the very threshold, by the assessee-respondent deriving strength from Instruction No. 5 of 2008, dated May 15, 2008, issued by the Central Board of Direct Taxes (in short, "the CBDT"). We have heard Mr. G. K. Joshi, learned senior counsel for the appellant, and Mr. R. Goenka, learned counsel, for the respondent. Relying upon section 268A and the Central Board of Direct Taxes's instructions, which has been referred to above, it has been submitted by Mr. R. Goenka, learned counsel, that in term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned senior counsel, appearing for the appellant, does not dispute the fact that the instructions issued by the Central Board of Direct Taxes, have binding effect on the Department of the Revenue and that in the relevant year, the limit fixed by the Central Board of Direct Taxes for preferring an appeal by the Revenue, under section 260A was Rs. 4,00,000 and in the case at hand the "tax effect" being less than Rs. 4,00,000, the appeal, in the light of the instructions issued by the Central Board of Direct Taxes, could not have been filed, when the "tax effect" is less than Rs. 4,00,000. At the same time and in the same breadth, Mr. Joshi, learned senior counsel, however, submits that the assessee-respondent had taken inconsistent stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elied upon by the assessee-respondent in this appeal. We may point out that the Memorandum containing the instruction has defined "tax effect" to mean the difference between the tax on the total income assessed and tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issue against which appeal is intended to be filed. Though what has been indicated above is sufficient to dispose of the present appeal as not maintainable inasmuch as the appeal runs counter to the instructions, which have been issued by the Central Board of Direct Taxes, we deem it appropriate to point out that section 268A has been inserted in the Act, with effect from April 1, 1999, by the Finance Bill, 2008. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he income-tax authority, and the other, before the Income-tax Appellate Tribunal, we do not deem it proper that such a conflict can be of such a grave nature, which would allow the Revenue to override the prescription of section 268A. In the facts and attending circumstances of the present case, therefore, we are clearly of the view that the present appeal cannot be sustained and must fail. We must, however, point out that in an appropriate case, the High Court may, perhaps, not apply the instructions, as regards the monetary limits, ipso facto and may choose nevertheless to examine the substantial questions of law raised in an appeal. The present one, however, is in our considered view, not such a case, where the High Court shall enter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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