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2009 (7) TMI 115 - HC - Income TaxMaintainability of appeal circular instruction no. 5 of 2008 dated 15.05.2008 held that - In the present case appeal was filed in the year 2005 before the Income-tax Appellate Tribunal and it was dismissed on November 30 2007 as not maintainable. These instructions came much thereafter and in view of paragraph 11 thereof has no applicability to the case. The Income-tax Appellate Tribunal therefore rightly dismissed the appeal as non-maintainable. The present appeal preferred thus clearly is a misuse of the process of law and in spite of the aforesaid clear instructions of the Central Board of Direct Taxes itself we fail to understand as to why this appeal is preferred when the appeal before the Income-tax Appellate Tribunal itself was not maintainable. In these circumstances we dismiss the appeal with costs quantified at Rs. 10, 000 to be paid to the Delhi High Court Mediation and Conciliation Centre.
Issues:
1. Disallowance of interest on advances and sundry creditors by the Assessing Officer. 2. Appeal filed by the Revenue against the order of the Commissioner of Income-tax (Appeals). 3. Maintainability of the appeal before the Income-tax Appellate Tribunal based on tax effect. 4. Applicability of Central Board of Direct Taxes instructions on notional tax effect in loss cases. 5. Dismissal of the appeal by the High Court with costs. Issue 1: Disallowance of interest on advances and sundry creditors The assessee declared a loss for the assessment year 2001-02 and claimed various charges, including rent charges and extra bed charges. The Assessing Officer disallowed the interest on advances and a certain amount on sundry creditors due to the failure to reconcile balances. This resulted in the income being assessed at a lower loss than declared by the assessee. The Commissioner of Income-tax (Appeals) sustained some additions while deleting/restricting certain amounts, leading to the Revenue appealing against this order. Issue 2: Appeal filed by the Revenue The Revenue filed an appeal against the order of the Commissioner of Income-tax (Appeals) regarding the disallowances made by the Assessing Officer. Cross-objections were filed by the assessee questioning the maintainability of the appeal before the Income-tax Appellate Tribunal based on the tax effect, citing Central Board of Direct Taxes circulars and instructions. Issue 3: Maintainability of the appeal based on tax effect The Income-tax Appellate Tribunal dismissed the appeal of the Revenue as non-maintainable due to the tax effect being below the threshold set by Central Board of Direct Taxes instructions. The Tribunal's decision was supported by various judgments, emphasizing the significance of tax effect in determining the maintainability of appeals. Issue 4: Applicability of Central Board of Direct Taxes instructions The learned counsel for the appellant argued that new instructions issued by the Central Board of Direct Taxes regarding notional tax effect in loss cases should be considered, but these instructions were not applicable to appeals filed before their issuance. As the appeal in this case was filed before the new instructions, the Tribunal's decision to dismiss the appeal was deemed appropriate. Issue 5: Dismissal of the appeal by the High Court The High Court found the appeal filed by the Revenue to be a misuse of the legal process, especially considering the clear instructions from the Central Board of Direct Taxes. The Court dismissed the appeal with costs to be paid to the Delhi High Court Mediation and Conciliation Centre, highlighting the importance of adhering to procedural guidelines and legal instructions in tax matters.
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