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TMI Blog2008 (6) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... inst the very maintainability of the appeal preferred by the Department violating the CBDT Instruction No. 2 of 2005, dt. 24th Oct., 2005 (F. No. 279/Misc.-64/05-ITJ) [(2005) 198 CTR (St) 41] whereby prescribed monetary limit for filing of the appeal by the Department before the Tribunal has been fixed where tax effect is exceeding Rs. 2 lac. He submitted further that the CBDT vide its Instruction No. 5 of 2007, dt. 16th July, 2007 (F. No. 279/Misc.-56/07-ITJ) [(2007) 210 CTR (St) 76] has clarified that tax effect means the tax only i.e., excluding interest. The Board has further highlighted where question of law arises then monetary limits shall not be applicable. While referring Form No. 36 the learned Authorised Representative submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the CBDT instructions are administrative in nature, violation of which does not give any right to the assessee, a third party to enforce it. He cited decision of Hon'ble jurisdictional High Court on the issue in the case of CIT vs. Rajasthan Patrika Ltd. (2002) 178 CTR (Raj) 414 : (2002) 258 ITR 300 (Raj) holding that these are administrative instructions. if the Department prefers to file an appeal or make a reference to that Court, on such administrative instructions the appeal of the Department should not be dismissed or the reference should not be rejected. 4. Learned Authorised Representative rejoined with this submission that after insertion of s. 268A with retrospective effect from 1st April, 1999, the position has been cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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." 6. As evident from above, the sub-s. (4) is in two parts. Firstly, the Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-s. (1) and secondly, the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said instruction has been issued under s. 268A(1) of the IT Act, 1961. Vide cl. No. 11 of this instruction dt. 15th May, 2008, it has been made clear that this instruction will apply to appeals filed on or after 15th May, 2008, however, the cases where appeals have been filed before 15th May, 2008, will be governed by the instructions on this subject, operative at the time when such appeal was filed. The SMC Bench of Jaipur Tribunal has discussed in detail about the statutory nature of these instructions. We thus allow the preliminary objection raised by the learned Authorised Representative in favour of the assessee that the appeal preferred by the Department is not maintainable subject to verification by the AO that the claim of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the assessee before the learned CIT(A) remained that during the course of survey in regular books, the survey party had noticed credits in the names of Shri Murarilal Sharma, Shri Satyanarayan Sharma, Shri Satyanarayan Modi and Shri P. Khandelwai totalling to Rs. 1,17,000. The advance deposit was received from the said persons who are carrying on the similar business for purchase of books and stationery. The amount was duly credited in the regular books of accounts on the date of receipt. Materials were supplied through sale bills and balance amount was received. It was submitted that these are trade advances deposits and not in the nature of a loan or borrowing or cash credit. Sales made to the said party have been accepted by the AO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed credits to the accounts of the six parties. The amount was duly credited in the regular books of account on the date of receipt. Material was supplied by sale bills and balance amount was settled accordingly. It was submitted that these are trade advances/deposits and are not a loan or borrowing or cash credit. Sales to the said party have been accepted by the AO. It was pleaded further that the AO had recorded statements of the said six parties denied the assessee (sic) wherein they had admitted the advances/deposits and explained source for the advancement/receipt of the material and stood to the other question put by the AO. The AO however without valid reason suspected the genuineness of the claim. The AO alleged that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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