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TMI Blog2014 (1) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee was negative. By virtue of subsequent clarifications contained in circulars dated 15.5.2008 and 9.2.2011 the position prevailing prior to such circulars gets amplified - In cases of loss returns, notional tax effect should be taken into account - This clarification, 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 be seen as clarificatory declaration by the Board - Only because clarification came in the subsequent circular dated 15.5.2008, would not mean that previously the Board desired that such appeals should be filtered out - Decided in favour of Revenue. - Tax Appeal No. 171 of 2009 - - - Dated:- 21-12-2013 - M. R. Shah And R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout going into the merits on the ground that tax effect involved is NIL. 4.0. In short, the controversy arose in following factual background. Before the Assessing Officer, the assessee claimed to have suffered loss in the assessment year in question. The Assessing Officer, however, disallowed the claim made by the assessee. Issue ultimately, reached the Tribunal in appeal filed by the Revenue. The Tribunal by the impugned judgment dismissed the appeal holding it as not maintainable on the ground that in either case assessee had suffered loss and in that view of the matter, CBDT s circulars providing monetary limit for filing further appeal would render the Revenue s appeal not competent. 5.0. Under similar circumstances, a group of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular provided for limits for preferring appeals to the Tribunal, reference before the High Court and appeal before the Supreme Court as long as the tax effect exceeded Rs.1,00,000/, Rs.2,00,000/and Rs.5,00,000/respectively. Paragraph 3 of the said circular specified the categories where irrespective of the revenue effect, such appeals could be pursued. The term tax effect specified in circular dated 27.3.2000 is nowhere defined and explained in any of the preceding and succeeding circulars. We must, therefore, understand this term in the context of the intention of the Board in limiting the Tax Appeals. 36.We must also remind ourselves that Board circulars are not statutes though by virtue of Section 268A, it may have certain statutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oked from a slightly different angle. In absence of the 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. To hold that a particular appeal is not maintainable by virtue of the limitations imposed by the Board in its circular, such limitation must be traced into circular itself. In other words unless and until the appeal is found to be opposed to the directives issued by the Board in its different circulars prevailing from time to time, such an appeal cannot be categorized as not maintainable. 38.Circulars of the Board nowhere provide that in case of return of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Revenue s appeals as being not maintainable. We may record that none of the appeals came to be decided by the Tribunal on merits. . 6.0. It is require ..... X X X X Extracts X X X X X X X X Extracts X X X X
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