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TMI Blog2012 (9) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal stating that the papers filed in the shape of Auditors Report and copy of Profit Loss Account and also post assessment records show no disturbance of accounts. Aggrieved by the adverse order of the Commissioner of Income-tax (Appeals), Department filed the appeal before the Hon ble ITAT in ITA No.94/Bang/2011. The Hon ble ITAT has not allowed the appeal of the department against the order of the CIT(A) on the ground that the tax and interest is less than the minimum monetary limit stipulated by the Board for appeal before it. The appeal was filed before the Hon ble ITAT on 02.02.2011 and the tax effect is Rs.2,15,810/- which is above the minimum prescribed limit as per Instruction No.5/2008 which was in force at the time of filing the appeal. The observation of the Hon ble ITAT in its order in Para 9 at Page 4 is not applicable to this case. In view of this, it is prayed that the Hon ble ITAT may suitably amend its order as the Instruction No.5/2008 was still in existence. 2. During the course of hearing, the ld. DR reiterated the submissions made in the aforesaid M.A. dated 17.02.2012 and requested to recall the order dated 17.10.2011. 3. The ld. counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court 25,00,000 5. From the above instructions of the CBDT, it is clear that the monetary limit prescribed for not filing the appeal before the ITAT by the department is Rs.3 lakhs. Now the question arises as to whether the aforesaid Instruction No.3/11 issued by the CBDT is applicable for the cases wherein the appeal has been filed by the department prior to the issuance of those instructions. In this regard, the Hon ble Bombay High Court in the case of CIT v. Madhukar K. Inamdar (HUF) (318 ITR 149)(Bom) held as under:- The Circular dated May 15, 2008 in general and paragraph (5) thereof in particular lay down that even if the same issue in respect of the same assessee, for other assessment years is involved, the Department should not file appeal, if the tax effect is less than Rs.4 lakhs. In other words, even if the question of law is of recurring nature, the revenue is not expected to file appeals in such cases, if the tax impact is less than the monetary limit fixed by the Central Board of Direct Taxes. The Board has also issued a Circular on June 5, 2007, directing the Department to examine all appeals pending before the court on a case to case basis with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstruction, the crucial date is the date of filing of the appeal. It is that date when the tax effect is less than the monetary limit prescribed, the Revenue is precluded from filing such appeals. Though the date of filing of the appeal may be the criteria, that by itself would not provide a rationale sufficient to distinguish between pending cases and cases to be filed in future. The earlier monetary limit was fixed in the year 2005. So it is after six years, the monetary limit is enhanced. If only the instruction No. 3/11 had been made applicable to the pending cases also, as laid down in the National Litigation Policy, the object of the policy would have been fulfilled. One of the ways of giving effect to the said policy is to make that instruction applicable retrospectively to all pending appeals as on the date of the circular. It would substantially serve the object of the policy. 25. It is in this context, the question arises, when the instruction expressly states that benefit of the said policy is prospective, still can the Courts place a construction on such instruction so as to make it retrospective. In this context, the Apex Court in the case of CCE v. Mysore Electrical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at periodically, the Revenue introduces what is called as Karvivadh Samadhan Scheme and Voluntary Disclosure of Income Scheme to annul black money and to give benefit to persons who are not prompt in filing returns and paying tax. But unfortunately, persons who are paying tax regularly but have succeeded before the Tribunal in showing that there is no tax liability, are made to face these litigations, instead of concentrating their time and energy in productive work. Under these circumstances, we are of the view that it is settled law that any notification issued under this fiscal legislation granting exemption from payment of tax has to be construed strictly. Any Circulars/Instructions issued conferring benefit on the assessees who are still to come to Court and who already inside the Court, at any rate, if such a benefit is given to pending matters, it would be only in the nature of one time settlement, which most of the financial institutions through out the country extend to defaulters who have borrowed money and who refuses to pay the same. 29. It is also not out of place to mention-herein that the Parliament wanted to grant statutory recognition to these Orders/Instructio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and have extended the benefit to the assessee. It is against those orders, most of the appeals are filed mechanically as compulsive litigation without any sense of responsibility. It is our experience that most of the appeals which are filed by the Revenue are frivolous and vexatious. The majority of the appeals are filed with the sole object of leaving it to the Courts for ultimate decision. The approach is, 'let the Court decide'. The authority who decides to prefer the appeal is not prepared to take the responsibility. There is an attempt to save their skin, so that tomorrow they are not held responsible in any manner. It is this approach, which is to be eschewed and .condemned, as stated in the National Litigation Policy. It is yet another ground for us to make this circular applicable to the pending proceedings. (Emphasis supplied). 9. From the ratio laid down by the Hon ble jurisdictional High Court, it is clear that the instructions issued in the Circulars by CBDT are applicable for pending cases also. Therefore, by keeping in view the ratio laid down in the aforesaid referred to cases, we are of the considered view that Instruction No.3/11 dated 09.02.2011 issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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