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TMI Blog2008 (6) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... resentative while referring the provisions laid down under s. 268A submitted that the instructions or the directions issued by the Board to the IT authorities as to fixing the monetary limits for regulating the filing of the appeal has now been given statutory recognition. Sub-s. (4) to this s. 268A provides that the Tribunal while hearing such appeal shall give regard to the order, instructions or the directions so issued. Hence now in view of this section, the monetary limit for filing of the appeal needs to be taken into consideration before admitting the appeal filed by the Department. The learned Authorised Representative also referred recent Instruction No. 5 of 2008, dt. 15th May, 2008 of the CBDT directing the IT authorities again not to file appeal where tax effect does not exceed the prescribed monetary limit. It has been further clarified therein that by not filing the appeal, it cannot be presumed that the Department has acquiesced the disputed issue and that it shall not be precluded from filing an appeal in case of the assessee for other assessment year or in case of other assessee, if the tax effect exceeds the prescribed monetary limit. The learned Authorised Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lude such authority from filing an appeal or application for reference on the same issue in the case of- (a) the same assessee for any other assessment year (b) any other assessee for the same or any other assessment year, (3) Notwithstanding that no appeal or application for reference has been filed by an IT authority pursuant to the orders or instructions or directions issued under sub-s. (1), it shall not be lawful for an assessee, being a party in any appeal or reference, to contend that the IT authority has acquiesced in the decision on the disputed issue by not filing an appeal or application for reference in any case. (4) The Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-s. (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case. (5) Every order, instruction or direction which has been issued by the Board fixing monetary limits for filing an appeal or application for reference shall be deemed to have been issued under sub-s. (1) and the provisions of sub-ss. (2), (3) and (4) shall apply accordingly." 5. After hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdship on such administrative instructions the appeal of the Department should not be dismissed or the reference should not be rejected. The CBDT also issues circulars.' Sub-s. (2) to s. 119 of the Act provides circumstances in cls. (a) to (c) under which the Board may, if it considers necessary or expedient or desirable so to do pass general or special orders setting forth directions or instructions and any such order may, if the Board is of opinion that it is necessary in the public interest so to do, be published and circulated in the prescribed manner for general information. By cl. (c) to sub-s. (2) to s. 119 of the Act it has been specified that the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order for reasons to be specified therein, relax any requirement contained in any of the provisions of Chapter IV or Chapter VI-A, where the assessee has failed to comply with any requirement specified in such provision for claiming deduction thereunder, subject to some conditions mentioned in sub-cls. (i) and (ii), provided that the Central Government shall cause every order issued under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or claiming deduction under s. 80-IB of the Act is covered by the decision of Hon'ble jurisdictional High Court in the case of Arihant Tiles Marbles (P) Ltd. vs. ITO (2007) 211 CTR (Raj) 169 wherein referring the decision of Hon'ble Supreme Court in the case of Lucky Minmat (P) Ltd., the Hon'ble High Court has held that conversion of marble blocks into slabs and tiles, engaging, processes of cutting and sawing or sizing or polishing of marble blocks into stabs and tiles which results in making raw marbles usable, amounts to manufacture. The Hon'ble High Court has also been pleased to refer the intention behind CBDT Circular No. 729, dt. 1st Nov., 1995 [(1995) 129 CTR (St) 1] as well as Central Excise Act, wherein such activities amount to manufacture. The Hon'ble High Court has observed that marble block as a mineral produced from earth by itself is not usable for any purpose and various processes applied to make it usable, amounts to manufacture. The issue raised in the ground instead is based on the facts of each case as to whether the processes applied by the assessee to make the article commercially viable amount to production or manufacture to make the assessee eligible for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The first appellate order has been objected by the assessee basically on the basis that learned CIT(A) has erred in holding the issuance of notice under s. 148 of the Act valid and sustaining the addition of Rs. 34,250 made by the AO on account of low household withdrawals. 9. Heard and considered the arguments advanced by the parties. Objection No. 1 10. The submission of learned Authorised Representative in this regard remained that reopening proceedings have been invoked by the AO after four years of filing the return of income on the basis of changed opinion in view of the decision of Hon'ble Supreme Court in the case of Lucky Minmat (P) Ltd. He submitted that return of income was filed on 31st Oct., 2002 whereas notice under s. 148 has been issued on 9th March, 2007. There was no concealment of facts or necessary information nor any fresh material is on record to justify the action of reopening. The learned Departmental Representative on the other hand has placed reliance on the first appellate order on the issue. 11. I find substance in the above contentions of learned Authorised Representative, because a similar issue has already been decided in favour of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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