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TMI Blog2013 (10) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... eal of the assessee-respondent has been allowed. While admitting the appeal, the substantial question of law framed was as under : "Whether, on the facts and in the circumstances of the case, the Tribunal was justified and correct in law in deleting the penalty imposed on the assessee under section 271B of the Income-tax Act, 1961, when it was mandatory to get the accounts audited under section 33B of the said Act, even if the books of account have not been properly maintained ?" Before, however, the appeal could be heard on the merits, the maintainability of the present appeal has been put to challenge, at the very threshold, by the assessee-respondent deriving strength from Instruction No. 5 of 2008, dated May 15, 2008, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 260A, has to be treated as circumscribed by the limitation, which has been imposed with the help of the enactment of section 268A, and since the Central Board of Direct Taxes has issued instructions, in exercise of its power under section 268A, the Revenue's right to prefer an appeal is limited by instructions issued by the Central Board of Direct Taxes. Mr. Joshi, learned senior counsel, appearing for the appellant, does not dispute the fact that the instructions issued by the Central Board of Direct Taxes, have binding effect on the Department of the Revenue and that in the relevant year, the limit fixed by the Central Board of Direct Taxes for preferring an appeal by the Revenue, under section 260A was Rs. 4,00,000 and in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kironmoy Roy Choudhury reported in [2011] 330 ITR 316 (Gauhati), and a Division Bench of this court, speaking through Amitava Roy J. (as his Lordship, then, was) held that an appeal, where "tax effect" was less than Rs. 4,00,000, would not be maintainable, because of the instruction issued by the Central Board of Direct Taxes which is also the instruction which has been relied upon by the assessee-respondent in this appeal. We may point out that the Memorandum containing the instruction has defined "tax effect" to mean the difference between the tax on the total income assessed and tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issue against which appeal is intended to be fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 268A, the power to regulate appeal by prescribing the monetary limit. When, thus, the Central Board of Direct Taxes has prescribed a monetary limit, no appeal under section 260A can be filed by the Revenue except in the circumstances, which we have indicated above. The mere fact that the assessee-respondent has taken two distinctly different stands, one, before the income-tax authority, and the other, before the Income-tax Appellate Tribunal, we do not deem it proper that such a conflict can be of such a grave nature, which would allow the Revenue to override the prescription of section 268A. In the facts and attending circumstances of the present case, therefore, we are clearly of the view that the present appeal cannot be sustained ..... X X X X Extracts X X X X X X X X Extracts X X X X
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