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TMI Blog2012 (9) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... the CBDT is applicable to the cases filed after 15th May, 2008 and in compliance thereof, they do not file appeals, if the tax effect is less than Rs. 4 Lakhs, but the said circular is not applicable to the cases filed prior to 15th May, 2008 i.e. to the old pending appeals, even if the tax effect is less than Rs. 4 Lakhs. Thus there is no logic behind this belief entertained by the Revenue - Since in this Appeal the tax effect on the quantum of penalty deleted by the ITAT is Rs.5,21,530/-, which is less than Rs.10 lakhs fixed under Instruction No.3 of 2011 as operative at the time when such appeals were filed, therefore, this Tax Appeal filed under section 260A is dismissed as not maintainable on the ground of monetary limit, without expressing any opinion on merits of the case. - TAX APPEAL No. 1404 of 2010 - - - Dated:- 24-8-2012 - MR.JUSTICE V. M. SAHAI, MR.JUSTICE N.V. ANJARIA, JJ. Mr. Pranav G.Desai for the Appellant. Mr.Bandish Soparkar with Mrs. Swati Soparkar for the Opponent. ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard Mr.Pranav G.Desai, learned counsel appearing for the appellant and Mr.Bandish Soparkar, hold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the amount of income in respect of the issues against which appeal is intended to be filed (hereinafter referred to as "disputed Issues"). However, the tax will not include any interest thereon, except where chargeability of interest itself is in dispute. In case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect. In cases where returned loss is reduced or assessed as income, the tax effect would include notional tax on disputed additions. In case of penalty orders, the tax effect will mean quantum of penalty deleted or reduced in the order to be appealed against. 5. The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed isssues in the case of every assessee. If, in the case of an assesses, the disputed issues arise in more than one assessment year, appeal, can be filed in respect of such assessment year or years in which the tax effete in respect of the disputed issues exceeds the monetary limit specified in para 3. No appeal shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court that such cases do not have any a precedent value. As the evidence of not filing appeal due to this instruction may have to be produced in courts, the judicial folders in the office of CsIT must be maintained in a Systemic manner for easy retrieval. 8. Adverse judgments relating to the following issues should be contested on merits notwithstanding that the tax effect entailed is less than the monetary limits specified in para 3 above or there is no tax effect. (a) Where the Constitutional validity of the provisions of an Act or Rule are under challenge, or (b) Where Board's order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) Where Revenue Audit objection in the case has been accepted by the Department. 9. The proposal for filing Special Leave Petition under Article 136 of the Constitution before the Supreme Court should, in all cases, be sent to the Directorate of Income-tax (Legal and Research), New Delhi and the decision to file Special Leave Petition shall be in consultation with the Ministry of Law and Justice. 10. The monetary limits specified in para 3 above shall not apply to writ matters and direct tax matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008 dated 15th May, 2008 was issued. This Court in the case of "Commissioner of Income Tax V/s Madhukar K. Inamdar (HUF) reported in "(2010) 229 CTR (Bom) 77, interpreted the aforesaid Circular. The Circular was issued in supersession of all earlier instructions issued by the Board. The monetary limit was increased and appeals were to be filed under Section 260A, thereafter, only in cases where the tax effect exceeded Rs. 4 Lacs. Paragraph 11 of that instruction stipulated that it was applicable to appeals filed on or after 15th May, 2008. It was further provided that in cases, where appeals were filed before 15th May, 2008, they would be governed by the instructions on this subject which were operative at the time when such appeals were filed. The instruction was issued under Section 268A(1) of the Act. The argument of the learned Counsel for the revenue in that case was, that the instruction issued on 15th May, 2008 did not preclude the department from continuing with the appeals and/or Petitions filed prior to 15th May, 2008, if they involved a substantial question of law of a recurring nature, notwithstanding the fact that the total cumulative tax effect involved in the appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar indicates that monetary limits would not apply to writ matters and direct tax matters other than income tax. It further provides that where the tax effect is not quantifiable, the Department should take a decision to file appeals on merits of each case. Clause 11, again provides that the instruction would apply to appeals filed on or after ....2011 and appeals filed before ...... 2011 would be governed by the instructions on this subject, operative at the time when such appeals were filed. 11.In our opinion, when a similar clause has been interpreted by the Division Bench of this Court in CIT vs. Madhukar Inamdar (Supra), the same principles must apply in the present cases also, as we have found that the instructions of 15th May, 2008 is para- material with the instruction of 9th February, 2011. 14. Similarly, the Delhi High Court in the case of "Commissioner of Income Tax V/s Delhi Race Club Ltd.", decided on March 03, 2011, by relying on its earlier Judgement "Commissioner Income Tax Delhi-III V/s M/s P.S. Jain and Co. decided on 2nd August, 2010 has held that the CBDT circular raising the monetary limit of the tax effect to Rs. 10 Lacs would be applicable to pending cases ..... X X X X Extracts X X X X X X X X Extracts X X X X
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