TMI Blog2015 (1) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... .T.A No.1650/Kol/2011 - - - Dated:- 26-12-2014 - Shri Mahavir Singh, JM And Shri Shamim Yahya, AM,JJ. For the Appellant: Shri K. L. Kanak, JCIT, Sr. DR For the Respondent: None ORDER Per Shri Shamim Yahya, AM: This appeal by revenue is arising out of order of CIT(A)-VIII, Kolkata in Appeal No. 302/CIT(A)-VIII/Kol/10-11 dated 16.09.2011. 2. None appeared on behalf of assessee. We dispose of this appeal after hearing Ld. Sr. DR. At the outset, we find that tax effect in this appeal of Revenue is below the prescribed monetary limits for filing of appeals before ITAT. In this appeal of Revenue, the quantum involved is ₹ 4,81,128/- on which total tax effect is below ₹ 4 lakhs. The appeal relates to Assessment Year 2008-09 and filed before the Tribunal on 01.12.2011. We also find that in view of the recent Instruction No. 5/2014 issued by CBDT on 10.07.2014 revising monetary limits for filing of appeal before ITAT fixing the tax effect limit of ₹ 4 lacs, the same is not maintainable and liable to be dismissed in limine. The only issue now remains before us is, whether, this appeal of revenue, which is below the prescribed limit of tax effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various decisions of the Courts on Instructions, relying on the decision in Commissioner of Income Tax vs. Madhukar K. Inamdar (HUF) reported in (2010) 229 CTR (Bom) 77, has held in paragraphs 9, 10, 11, 14 and 17 as under: 9. As stated earlier, the Income Tax Act was amended and Section 268A has been introduced on the Statute book with retrospective effect. Section 268A carves out an exception for filing of appeals and References under Section 260 A of the Act. The legislature has prescribed that the CBDT is empowered to issue circulars and instructions from time to time, with regard to filing of appeals depending on the tax effect involved. Thereafter, in 2008, CBDT Instruction No. 5 of 2008 dated 15th May, 2008 was issued. This Court in the case of Commissioner of Income Tax V/s Madhukar K. Inamdar (HUF) reported in (2010) 229 CTR (Bom) 77, interpreted the aforesaid Circular. The Circular was issued in supersession of all earlier instructions issued by the Board. The monetary limit was increased and appeals were to be filed under Section 260A, thereafter, only in cases where the tax effect exceeded ₹ 4 Lacs. Paragraph 11 of that instruction stipulated that it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prevailing instructions fixing the monetary limit for the tax effect would hold good even for pending cases. Accordingly, the Court dismissed all the appeals having a tax effect of less than ₹ 4 Lacs. 10. The new CBDT instructions have been issued on 9th February, 2011, being Instruction no. 3 of 2011. The monetary limit has been raised again and clause 3 of the instructions provides that appeals shall not be filed in cases where the tax effect does not exceed the monetary limits prescribed, henceforth. The monetary limits prescribed for filing an appeal under Section 260A before the High Court has been raised to ₹ 10 Lacs. This instruction is identical to the CBDT Instruction no. 5 of 2008. Clause 10 of this circular indicates that monetary limits would not apply to writ matters and direct tax matters other than income tax. It further provides that where the tax effect is not quantifiable, the Department should take a decision to file appeals on merits of each case. Clause 11, again provides that the instruction would apply to appeals filed on or after 07.02.2011 and appeals filed before 07.02.2011 would be governed by the instructions on this subject, operative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sad Khatod (HUF), (supra) that in the similar situation and exactly identical instructions were applied to the appeals filed retrospectively. Hon'ble Gujarat High Court has discussed that almost all High Courts are of the unanimous view, considering the main objective of such instructions that to reduce the pending litigation, where the tax effect is considerable low or small, the appeal is not maintainable. The recent instruction revising the monetary limit to ₹ 4 lakh for filing appeal before ITAT on income tax matters, as issued vide Instruction No.5/2014 FNo279/Misc.142/2007-ITJ(Pt) dated 10th July, 2014 will apply to pending appeals also for the reason that the same is exactly identical to earlier instructions. The relevant circular issued by CBDT reads as under: Reference is invited to Board's instruction No 3/2011 dated 09/02/2011 wherein monetary limits and other conditions for filing departmental appeals (in income-tax matters) before Appellate Tribunal, High Courts and 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, H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the tax effect in the relevant assessment year. However, in case of a composite order of any High Court or appellate authority, which involves more than one assessment year and common issues in more than one assessment year, appeal shall be filed in respect of all such 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 filed appeal in respect of the year(s) in which 'tax effect' exceeds the monetary limit prescribed. In case where 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 Depa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect tax matters shall continue to be governed by the relevant provisions of statute rules. Further filing of appeal in cases of Income Tax, where the tax effect is not quantifiable or not involved, such as the case of registration of trusts or institutions under section 12 A of the IT Act, 1961, shall not be governed by the limits specified in par 3 above and decision to file appeal in such cases may be taken on merits of a particular case. 11. This instruction will apply to appeals filed on or after 10th July, 2014. However, the cases where 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 Ld. Sr. 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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