TMI Blog2017 (3) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... . Based on the law and the facts so referred above, we have no option, but to dispose of this review application, solely on the foundation of the above circular as even the “notional tax” effect is not more than ₹ 20.00 lakhs. - CIVIL APPLICATION (REVIEW) NO.8 OF 2011 AND TAX APPEAL NO. 16 OF 2007 - - - Dated:- 15-3-2017 - ANOOP V. MOHTA NUTAN D. SARDESSAI, JJ. Ms. Amira Razaq, Junior Central Govt. Standing Counsel for the Applicant. Mr. S. M. Singbal, Advocate for the respondent. ORAL JUDGMENT :- (PER ANOOP V. MOHTA, J.) This is a review application under the Income Tax Act, 1961 (the Act). By common order dated 12th August, 2016, in view of its earlier order in Commissioner of Income Tax, G vs. Meghalaya Steels Ltd., 377 ITR 112, after considering the position of law and specifically referring to Section 260A(7) of the Act, the Supreme Court has concluded as under : 3. Before this Court, an affidavit has been filed by the Revenue explaining how the notional tax effect is far beyond the amount of ₹ 2,00,000/- (Rupees two lakh). Moreover, in Commissioner of Income Tax, G vs. Meghalaya Steels Ltd., decided on 5th August, 2015 a view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n response to the notice. The AO passed order dated 15th February, 2005, under Section 147 of the Act, computing taxable income at ₹ 3,51,292/- after allowing deductions under Section 10B of ₹ 97,33,337/- and the tax payable had been shown as ₹ 2,26,062/- under re-assessement under Section 143(3), read with Section 147 of the Act. Though the respondent did not claim depreciation under Section 32(1) of the IT Act, but the AO allowed the same stating that depreciation allowance under Section 32 is mandatory and it is bound to allow whether the respondent claims it or not. The respondent considered the Bank interest as business income and business loss from mining division and it has been reduced. However, the AO stated that this income was not business income and the same had been shown as income from other sources. On 11th April, 2005, the respondent filed an appeal challenging order dated 15th February, 2005 before the Commissioner of Income Tax (Appeals) on the grounds mentioned in the appeal. The Commissioner of Income Tax vide order dated 8 th November, 2005 dismissed the respondent s appeal. In the order, the Commissioner of Income Tax allowed depreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t seek review of the order passed by the Division Bench in the tax appeal. Being aggrieved by orders dated 28/09/2010 and 28/03/2012, passed by this Court, the Commissioner of Income Tax filed Special Leave Petition (Civil) before the Supreme Court being SLP No.10603 10604 seeking review of the order of this Court. The appellant filed affidavit in rejoinder before the Hon'ble Supreme Court stating that in case the notional value is considered, the tax effect would be ₹ 9,92,175/-. The Supreme Court vide Order dated 12/8/2016, allowed the appeal and set aside the said orders of this Court and directed to decide the review petition and thereafter appeal itself if so required, on merits. No opinion on merits of any of the contentions of the parties was expressed by the Supreme Court. The issue, therefore, with regard to applicability of such circular, keeping in mind that the tax liability in pending references and/or appeal, has already been concluded. 5. The learned Counsel appearing for the parties have placed on record the Circular No.21/2015 which is in reference to the Board's instruction No.5/2014 dated 10/07/2014 and basically referring the issue of monet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 6, 8 and 9, in following words : 6. We find that Circular Dt. 10 Dec, 2015 is identically worded to the Instructions No. 5, Dt. 10th July, 2014 save and except enhancement of the threshold limit for the purpose of Revenue pursuing its appellate remedies inter alia before the High Court, specifically providing for the retrospective operation of the 2015 Circular so as to apply to pending appeals and directing that the pending appeals be withdrawn and/or not pressed. In the above view, we follow our decisions in Computer Points (I) Ltd. (supra), Dempo Mining Corporation (supra) and Sanrit Hotel, Madgao, Goa (supra) and hold that even though the 2015 Circular does not specifically refer to references just as the Instruction No. 5, of 2014, it should apply even to pending references under s. 256 of the Act. This is so as the entire objective of the circular in having been made retrospective is that the Court should concern itself with grievances of the Revenue having substantial financial stake in terms of the tax involved and normally the decision of the Tribunal upto the value of ₹ 20 lacs even if it is adverse to the Revenue should be accepted. The circular in para 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court is drawn, the High Court will not apply the Circular ipso facto. For that purpose, liberty is granted to the Department to move the High Court in two weeks. The special leave petition is, accordingly, disposed of. In the present case, there is no issue of substantial nature or issue to have cascading effect. 8. In view of the position of law, as well as the facts so recorded above, we are inclined to dispose of the present review petition, basically in view of the order passed by the Supreme Court and the subsequent circular which was admittedly issued on 10th December, 2015, prior to the date of order passed by the Supreme Court 12/August/2016. There is no issue now that review is available under the Act. 9. After hearing the parties, we have noted that as rivals submissions and monetary value and/or the amount so involved even if it is accepted the case of the Department that it is more than ₹ 4.00 lakhs, though the Counsel for the applicant based upon the event so recorded, submitted that it was always less than ₹ 4.00 lakhs, the High Court therefore had taken note of the assessee's case and passed the order. The figure of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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