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TMI Blog2013 (4) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board's circulars issued, which now can be stated to be covered under Section 268A of the Act, there are no limitations on Revenue carrying the issue in appeal either before the appellate Tribunal, the High Court, the Supreme Court. Decided in favor of revenue - matter remanded back. - TAX APPEAL No. 1713 of 2009 - - - Dated:- 1-2-2012 - MR. AKIL KURESHI AND MS SONIA GOKANI JJ. Appearance: MR MR BHATT, SR. ADV. with MRS MAUNA M BHATT for Appellant(s) : 1, MR SN SOPARKAR, SR. ADV. with MRS SWATI SOPARKAR for Opponent(s) : 1, ORDER (Per: HONOURABLE MS JUSTICE SONIA GOKANI) 1. Revenue has challenged the order of the Tribunal dated 30.1.2009 proposing following questions of law:- [A] Whether the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee. The second aspect of the matter is whether when the Board in its subsequent circular dated 15.5.2008 provided that " Similarly, in loss cases notional tax effect should be taken into account", did the Board desire for the first time that the appeals be permitted to be presented in cases of loss only on and from 15.4.2008 and not before. In other words, the question is whether above quoted portion in the Board circular dated 15.4.2008 is clarificatory in nature or not? 35. Close perusal of the circulars issued prior to 15.5.2008 noted hereinabove, would reveal that such circulars provided for different conditions on which the Revenue could prefer appeals before the Tribunal and Courts which included the monetary limits spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tax effect exceeds the revised monetary limits i.e.Rs.2,00,000/- for the appeal to be file before the appellate Tribunal Rs.4,00,000/- for the appeal or reference before the High Court and Rs.10,00,000/- in case of appeals to the Supreme Court. Such limit came to be revised by Circular dated 24.10.2005 which provided for monetary limits of tax effect of Rs.2,00,000/-, Rs.4,00,000/- and Rs.10,00,000/- for appeals to the Tribunal, High Court and the Supreme Court respectively. None of these circulars provided that by virtue of assessment of loss by the Assessing Officer, different from that declared by the assessee, even if the possible tax effect is huge, no appeals should be presented before the Tribunal, High Court or the Supreme Court; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loss returns the Board's instructions did not envisage further appeal also does not impress us. We may recall that in the circular dated 15.5.2008 it is provided that in the case of loss, notional tax effect should be taken into account. This clarification to our mind, contained in circular dated 15.5.2008 and absence of any such clarification in the previous circulars, is of no consequence. Such a clause can, at the best, be seen as clarificatory declaration by the Board to put the controversy beyond any shadow of doubt or debate. It cannot, however, be stated that only on and from 15.5.2008 the Board desired that on the basis of notional tax effect in cases of loss the appeals should be filed. In the previous circulars to reiterate, no s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Instruction No.5 of 2008 and as per these instructions, in loss cases, notional tax effect is to be taken into account. The learned counsel, however, conceded that these instructions are applicable in respect of those appeals preferred after the issuance of these instructions. In fact, it is specifically provided in paragraph 11 of the said instruction as under " this instruction will apply to appeals filed on or after May, 15,2008". However, the cases where appeals have been before May 15, 2008, will be governed by the earlier instructions on this subject, operative at the time when such appeal was filed. In the present case, appeal was filed in the year 2005 before the Income-Tax Appellate Tribunal and it was dismissed on November, 30, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the result common question, framed in all appeals, is answered in favour of the Revenue and against the assessees. It is held that merely because even as per the Assessing Officer's order, ultimately income of the assessee is negative, the Revenue's appeal before the appellate Tribunal would not be barred by the Board's circular under Section 268A of the Act. It is, however, clarified that the notional tax effect would have to be above the limits prescribed by the Board from time to time for presentation of such appeals. In all these cases since it is stated that the notional tax effect would be higher than the limits prescribed by the Board in different circulars, we are of the view that the Tribunal committed an error in dismissing the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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