2015 (8) TMI 663 - HC - Income Tax

Penalty levied u/s 271D - violation of provisions of section 269SS - Tribunal deleted penalty levy - Low tax effect - Held that - The Central Board for Direct Tax (CBDT) has issued Instruction No.5 of 2014 and in line with its earlier Instruction No.3 of 2011 directing the Revenue not to file appeals to the High Court from the order of the Tribunal when the tax effect is less than ₹ 10 lakhs. This Court in CIT vs. Vijaya V. Kavekar 2013 (2) TMI 451 - Bombay High Court dismissed the appeal having tax effect of less than ₹ 10 lakhs in terms of Instruction No.3 of 2011. This on the ground that the instructions of CBDT in terms of Section 268A of the Act will ever apply to pending appeals. Thus, following the above decision, we are not inclined to entertain this appeal. Moreover, the Revenue has not been able to point out that the appeal would otherwise stand covered by the exclusion clause of Instruction No.5 of 2014 or would be otherwise covered by the Apex Court decision in CIT vs. Surya Harbal Ltd. 2011 (8) TMI 137 - Supreme Court of India . The present appeal has a tax effect of only ₹ 4,42,000/-, we see no reason to entertain the proposed questions of law. - Decided against revenue.

Summary

Issues:
Delay in filing the appeal, condonation of delay, challenge to the order of tribunal imposing a penalty, questions of law regarding penalty under section 271D, tax effect of the appeal, applicability of CBDT instructions on filing appeals with tax effect less than Rs. 10 lakhs.

Delay in Filing the Appeal:
The Notice of Motion sought condonation of a 1178-day delay in filing the appeal, although the initial delay indicated was 740 days. The assessing officer confirmed the 1178-day delay due to the appellant filing an appeal before the Gujarat High Court instead of the Bombay High Court. The court, considering the reasons provided, condoned the delay of 1178 days and allowed the Notice of Motion.

Challenge to Tribunal's Order Imposing Penalty:
The appeal challenged the tribunal's order dated 18th February 2009, which imposed a penalty of Rs. 4,42,000 on the appellant. The learned counsel for the revenue presented questions of law regarding the deletion of the penalty under section 271D, emphasizing violations of section 269SS and discrepancies in the treatment of similar cases by the Tribunal.

Tax Effect and CBDT Instructions:
The assessing officer highlighted a tax effect of Rs. 4,42,000 in the appeal. The court referenced CBDT Instruction No.5 of 2014, instructing the Revenue not to file appeals with a tax effect less than Rs. 10 lakhs. Citing a previous case, the court declined to entertain the appeal due to the tax effect falling below the specified threshold. Additionally, the court found no grounds for the appeal to be covered by the exclusion clause of the instruction or the Apex Court decision, leading to the dismissal of the appeal without costs.

In conclusion, the High Court of Bombay addressed the delay in filing the appeal, the challenge to the penalty imposed by the tribunal, questions of law regarding violations of tax provisions, the tax effect of the appeal, and the applicability of CBDT instructions on filing appeals with a tax effect less than Rs. 10 lakhs. The court ultimately dismissed the appeal due to the tax effect being below the specified threshold and the lack of grounds for further consideration based on the CBDT instructions and relevant legal precedents.