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TMI Blog2007 (9) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... it is expected that while filing appeal in non-adherence of the Circular, the Department would place material before the appellate forum that the case falls within the excepted category and, therefore, is not covered by the restraint contained in the Circular - 162 of 2006 - - - Dated:- 13-9-2007 - S. K. KULSHRESTHA and A. M. SAPRE JJ. R. L. Jain with Ms. Veena Mandlik for the appellant. JUDGMENT The judgment of the court was delivered by S. K. KULSHRESTHA J. - This appeal as also the connected appeals are being decided by this common order as they raise the following substantial question of law : "Whether, the Tribunal committed an illegality in not deciding the appeal on the merits merely on account of the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l declining to decide the appeals on the merits on the ground that the tax effect in the case was less than Rs. 2,00,000 and, therefore, the appeal was contrary to the explicit instructions of the Central Board of Direct Taxes to the effect that where the tax effect was less than Rs. 2,00,000, appeal should not be filed. In dismissing the appeal on the said technical ground, the Tribunal took into account the decision of the Bombay High Court in CIT v. Pithwa Engg. Works [2005] 276 ITR 519 to the effect that the Circular of the Board also applies to the pending cases. Counsel for the Revenue has, however, pointed out that the Rajasthan High Court in decision in CIT v. Rajasthan Patrika Ltd. [2002] 258 ITR 300 has held that the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Circular which is binding on the Department. The relevant discussion contained in paragraph 16 of the said report reads as extracted below (page 284): "The another question raised by learned counsel for the respondent is about the filing of appeal contrary to the circular issued by the Central Board of Direct Taxes, according to which, the appeal under section 260A of the Income-tax Act on the tax effect of less than Rs. 2 lakhs should not be filed by the Revenue and placed reliance on the decision of the Bombay High Court in the case of CIT v. Camco Colour Co. [2002] 254 ITR 565. Learned counsel for the respondent also relied upon the decision of the Supreme Court in the cases of Navnit Lal C. Javeri v. K. K. Sen, AAC [1965] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Central Board of Direct Taxes restraining its power to file appeal in case of the tax effect being below the monetary limit by capriciously taking subterfuge under the specious plea that the case is one of the excepted category of cases. It has not been brought to our notice that the Income-tax Department has devised any procedure to consider whether a particular case falls within the excepted category thus, permitting the Revenue to agitate the matter before the higher forums. In cases where no such procedure has been devised, it is expected that while filing appeal in non-adherence of the Circular, the Department would place material before the appellate forum that the case falls within the excepted category and, therefore, is not cover ..... X X X X Extracts X X X X X X X X Extracts X X X X
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