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TMI Blog2017 (4) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... o.21 of 2015 dated 10.12.2015 and also the provisions of Section 268A of Income Tax Act, 1961, we are of the view that the Revenue should not have filed the instant appeal before the Tribunal. In view of the above, without going into merits of the case, the appeal filed by the department is dismissed. X X X X Extracts X X X X X X X X Extracts X X X X ..... ax paid by assessee in returned income 5,08,860/- Tax Calculated by learned AO in the order of assessment. Tax on ₹ 45,35,289/- @ 30% 13,60,587/- Total Tax worked out by AO in assessment order 13,60,587/- Less: Tax already paid as returned income 5,08,860/- Net Tax Effect for which Revenue is in Appeal before Hon'ble ITAT 8,51,727/- 5. In his rival submissions the ld. DR submitted that the tax effect in this case will be more than ₹ 10,00,000/- if the surcharge & cess is treated as a part of the tax. In his rejoinder the ld. Counsel for the assessee submitted that the cess and surcharge cannot be a part of the tax as per the ratio laid down by the various benches of the ITAT. The reliance was placed on the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f penalty orders, the tax effect will mean 3 M.P. No. 155/Mds/11 quantum of penalty deleted or reduced in the order to be appealed against." Nothing has been mentioned in the above definition to show that tax will include surcharge for the purpose of applying the said Circular. Now if we look at the definition of "tax" as per sub-section (43) of Section 2 of Income-tax Act, 1961, it runs as under:- "(43) "tax" in relation to the assessment year commencing on the 1st day of April, 1965, and any subsequent assessment year means incometax chargeable under the provisions of this Act, and in relation to any other assessment year income-tax and super-tax chargeable under the provisions of this Act prior to the aforesaid date [and in relation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Coordinate Bench, we do not see merit in this contention of the ld. DR that the surcharge and the cess is a part of the tax. 8. After considering the submissions of both the parties and the material available on record, it is noticed that Section 268A has been inserted by the Finance Act, 2008 with retrospective effect from 01/04/99. The said section 268 of the Act provides that the Board may issue instruction or directions to the other income-tax authorities fixing monetary limits for not filing the appeals before the Appellate Tribunal or the Courts, said instructions/directions are binding on the income tax authorities. 9. It is noticed that the CBDT has issued Circular No.21 of 2015 dated 10.12.2015, vide which it has revised t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to file appeal in such cases may be taken on merits of a particular case. 10. This instruction will apply retrospectively to pending appeals and appeals to be filed henceforth in High Courts/ Tribunals. Pending appeals below the specified tax limits in para 3 above may be withdrawn/ not pressed. Appeals before the Supreme Court will be governed by the instructions on this subject, operative at the time when such appeal was filed." 10. From Clause 10 of the above said circular it is clear that these instructions are applicable to the pending appeals also and as per clause 3, there is clear cut instruction to the department to withdraw or not to press the appeals filed before the ITAT wherein tax effect is less than ₹ 10,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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