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TMI Blog2014 (10) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... ow remains before us is, whether, this appeal of revenue, which is below the prescribed limit of tax effect in view of the Board's Instruction No.5/2014 issued on 10.07.2014 revising the monetary limits for filing of appeals by the Department before ITAT is maintainable or not. Ld. CIT-DR has drawn our attention to para-11 of the Instruction and argued that this will apply to the appeals filed on or after 10.07.2014 and not to the appeal filed prior to 10-07.2014. Hence, he vehemently opposed the argument of Ld. counsel for the assessee and stated that this instruction is prospective and not retrospective. 3. We have heard rival contentions and gone through the facts and circumstances of the case. At the outset, it is seen that Hon'ble Delhi High Court in the case of CIT Vs M/s. P. S. Jain & Co. in ITA No.179/1991 dated 02.08.2010 has held as under:: "This court can very well take judicial notice of the fact that by passage of time money value has gone down, the cost of litigation expenses has gone up, the assessees on the file of the Departments have been increased consequently, the burden on the Department has also increased to a tremendous extent. The corridors of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be filed under Section 260A, thereafter, only in cases where the tax effect exceeded Rs. 4 Lacs. Paragraph 11 of that ITA No.243/K/2011 Navin Kumar Agarwal A.Yr.2007-08 instruction stipulated that it was applicable to appeals filed on or after 15th May, 2008. It was further provided that in cases, where appeals were filed before 15th May, 2008, they would be governed by the instructions on this subject which were operative at the time when such appeals were filed. The instruction was issued under Section 268A(1) of the Act. The argument of the learned Counsel for the revenue in that case was, that the instruction issued on 15th May, 2008 did not preclude the department from continuing with the appeals and/or Petitions filed prior to 15th May, 2008, if they involved a substantial question of law of a recurring nature, notwithstanding the fact that the total cumulative tax effect involved in the appeals was less than Rs. 4 Lacs. It was submitted, such appeals which were filed prior to the issuance of Instruction and where substantial questions of law were raised, were required to be decided on merits. The Court, while considering the issue observed that paragraph 5 of the Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the instruction would apply to appeals filed on or after ....2011 and appeals filed before ...... 2011 would be governed by the instructions on this subject, operative at the time when such appeals were filed. 11. In our opinion, when a similar clause has been interpreted by the Division Bench of this Court in CIT vs. Madhukar Inamdar (Supra), the same principles must apply in the present also, as we have found that the instructions of 15th May, 2008 is para- material with the instruction of 9th February, 2011. 14. Similarly, the Delhi High Court in the case of "Commissioner of Income Tax V/s Delhi Race Club Ltd.", decided on March 03, 2011, by relying on its earlier Judgement "Commissioner Income Tax Delhi-III V/s M/s P.S. Jain and Co. decided on 2nd August, 2010 has held that the CBDT circular raising the monetary limit of the tax effect to Rs. 10 Lacs would be applicable to pending cases also. 17. It is true that this judgement in Chhajer's case (supra) was not brought to the notice of the Division Bench, while deciding either Madhukar's case (supra) or the case of Polycot Corporation (supra). However, the instruction of 2005 which was considered in Chhajer's c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Supreme Court were specified. 2. In supersession of the above instruction, it has been decided by the Board that departmental appeals may be filed on merits before Appellate Tribunal, High Courts and Supreme Court keeping in view the monetary limits and conditions specified below. 3. Henceforth appeals shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:- S No. Appeals in Income-tax matters Monetary Limits (in Rs) 1 Before Appellate Tribunal 4,00,000/- 2 U/s 260A before High Court 10,00,000/- 3 &nb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a composite order / judgment involves more than one assessee, each assessee shall be dealt with separately. 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. The Income-tax shall not be precluded from filing an appeal against 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 Department has implicitly accepted the decision of the Tribunal or Court in the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeals have been filed before 10th July, 2014 will be governed by the instructions on this subject, operative at the time when such appeal was filed. 12. This issue under Section 268A (1) of the Income-tax Act 1961." 5. On query from the Bench, the CIT-DR could not point out any of the exceptions as provided in the Circular as under: (a) that this is a loss case having tax effect more than the prescribed limit, which should be taken into account, (b) that this is a composite order for many assessment years where tax effect will be more than the prescribed limit as per para 5 of above instructions, (c) that this is a case, where, in the case of revenue, where constitutional validity of the provision of the Act or I.T.Rules 1962 are under challenge (d) that Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires. (e) that Revenue Audit Objection in the case has been accepted by the Department and the same is under challenge. The Ld. DR could not point out any of the exceptions as provided above. Accordingly, this being a low tax effect case, we dismiss the appeal of the revenue in limine without going into merits. 6. In the result ..... 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