TMI Blog2003 (11) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... in this regard from time to time in order passed in ITA No. 1854/All/1994, Asstt. CIT vs. Jain Motors Tractors (2003) 78 TTJ (Agra) 134, learned counsel mentioned that the law laid down by the jurisdictional High Court in CIT vs. Paramount Spinning (P) Ltd. (sic) and CIT vs. Smt. Prakashwati (1995) 124 CTR (All) 83 : (1994) 210 ITR 567 (All) was not brought to the notice of the Bench. Thus, the matter needs to be reconsidered in the case of Smt. Prakashwati, the Hon'ble Allahabad High Court held thus: "There is another aspect of the matter. We have seen earlier that in two cases the tax effect involved is normal, i.e., Rs. 80." "Tax effect involved is very nominal, i.e., Rs. 80 is for asst. yr. 1984-85 and Rs. 475 for asst. yr. 1985-86. In (1991) 189 ITR 391 (Bom), it has been held that no reference application to be made in view of the policy decision of the CBDT not to file reference in the case where tax effect was less than Rs. 30,000 per year as contained in its Circular F. No. 279/26/1983, dt. 12th July, 1984 and Circular F. No. 319/11/1987, dt. 14th July, 1987. For that reason also these two applications under s. 256(2) were liable to be rejected." 4. Similar view ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erride provisions of Act, has since been overruled by the Hon'ble Supreme Court in the case of UCO Bank vs. CIT (1999) 154 CTR (SC) 88 : (1999) 237 ITR 889 (SC), thus the Bench was not justified to make a reliance upon the decision in the case of Kerala Finance Corporation. The learned counsel has further pointed out that in the case of Janta Metal Works vs. ITO Ors. (1990) 88 CTR (All) 224 : (1990) 186 ITR 458 (All), it was letter from the Chairman of CBDT which was under consideration and not the circular of CBDT, hence reliance on the said case was not justified. He has further mentioned that similar view has been taken by Bombay High Court in the case of CIT vs. Camco Colour Co. (2002) 173 CTR (Bom) 255 : (2002) 254 ITR 565 (Bom), as that of Allahabad High Court in the case of Paramount Spinning, Moradabad and Smt. Prakashwati. The Tribunal, Nagpur Bench, in the case of ITO vs. Jagatpal Singh (2002) 75 TTJ (Nag) 401 and Tribunal Indore Bench, in the case of ITO vs. Motilal Pratap Chand Mahasa (2002) 30 ITC 59 (Ind) have also taken the similar view. Thus, the learned counsel has submitted that instructions in question have been issued by the CBDT in exercise of power under s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffect thereof. A reliance has also been made to the decision in the case of CIT vs. Sahney Steel Press Works Ltd. (1985) 44 CTR (AP) 243 : (1985) 152 ITR 39 (AP), wherein it has been held that the power is conferred on the Board "for the proper administration of this Act" and it would follow that this power has to be exercised consistent with and within the four corners of the Act. In other words, the Board is given the power to fill in the details or to prescribe procedures where the Act and the Rules are silent. But the said power can never be construed as one enabling the Board to issue circulars overriding, modifying or in effect amending the provisions of the Act. The power conferred upon the Board by s. 119 cannot be put on a higher footing than the rule making power and it is well-settled that the rule making authority cannot ravel beyond the four corners of the Act, nor can it make a rule contrary to the provisions of the Act. A reliance has also been made to the decision in the case of Himachal Pradesh State Forest Corporation Ltd. vs. Dy. CIT (1998) 150 CTR (HP) 271 : (1998) 231 ITR 556 (HP), wherein it has been held that the Board instructions cannot prevail over the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Departmental Representative has submitted that since the appeal has been filed in 1995, Instruction No. 1903, dt. 28th Oct., 1992 would apply and not the instruction issued on 27th March, 2000. Under the Instruction No. 1903 the monetary limit for filing appeal before Tribunal has been fixed at Rs. 25,000. 12. We have heard the parties and perused the records of the case. The question for our consideration is whether the instructions in question are statutory in nature issued in exercise of power conferred upon CBDT under s. 119(1) of the IT Act, or merely administrative instructions for the guidance of IT authorities working under it. It may be mentioned that a decision which is not expressed and is not founded on reasons nor proceeds on a consideration of the issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Art. 141 of the Constitution. Only ratio decidendi is binding, the general observations (obiter dicta) have no binding effect. The doctrines, viz., per incurium and sub-silentio operate as exception to the rule of precedents. A decision is available as a precedent only if it decides a question of law. The judgment must be rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
