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2011 (2) TMI 103

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....issued in the year 2008. Learned counsel for the revenue submitted that the circular issued in the year 2008 did not have retrospective effect and did not control the appeal already filed which had to be decided according to the policy at the time the appeal was filed. In the judgment relied upon on behalf of the assessee, after referring to judgment of Bombay High Court in CIT v. Madhukar K.Inamdar (HUF), (2009) 318 ITR 149 (Bom.), it was observed that though the circular was not retrospective, it applied to pending appeals. We are prima-facie of the view that the circular about filing of appeals cannot apply to appeals already filed prior to the date of the circular. In our opinion, the view already taken in the judgment relied upon by learned counsel for the assessee may require consideration by a larger bench. Let the matter be placed before Hon'ble the Chief Justice for constituting a larger bench."   3. We have heard learned counsel for the parties. 4. Question for consideration is whether circular issued in the year 2008 laying down monetary limit for filing of the appeal by the department will govern all pending appeals irrespective of prescribed monetary limit appli....

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....eference by income-tax authority. The Board may, from time to time, issue orders, instructions or directions to other income-tax authorities, fixing such monetary limits as it may deem fit, for the purpose of regulating filing of appeal or application for reference by any income-tax authority under the provisions of this Chapter. (2) Where, in pursuance of the orders, instructions or directions issued under sub-section (1), an income-tax authority has not filed any appeal or application for reference on any issue in the case of an assessee for any assessment year, it shall not preclude such authority from filing an appeal or application for reference on the same issue in the case of-   (a) the same assessee for any other assessment year; or   (b) any other assessee for the same or any other assessment year.   (3) Notwithstanding that no appeal or application for reference has been filed by an income-tax authority pursuant to the orders or instructions or directions issued under sub-section (1), it shall not be lawful for an assessee, being a party in any appeal or reference, to contend that the income-tax authority has acquiesced in the decision on the disputed is....

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....   Circular dated 15.5.2008   "Revision of monetary limits for filing appeals by the Department before Income Tax Appellate Tribunals, High Courts and Supreme Court, measures for reducing litigation INSTRUCTION NO.5/2008, DATED 15-5-2008 Reference is invited to Board's instructions No.1979 dated 27.3.2000, No.1985 dated 29.6.2000, No.6 of 2003 dated 17.7.2003, No.19 of 2003 dated 23.12.2003, No.5/2004 dated 27.5.2004, No.2/2005 dated 24.10.2005 and No.5/2007 dated 16.7.2007, wherein monetary limits for filing departmental appeals (in income Tax matters) and other conditions were specified, for filing appeals before Appellate Tribunals, High Courts and Supreme Court.   2. In supersession of the above instructions, it has been decided by the Board that departmental appeals will be filed before Appellate Tribunals, High Courts and Supreme Court as per monetary limits and conditions specified below.   3. Appeals will henceforth be filed only in cases where the tax effect exceeds monetary limits given hereunder:-   Sr.No. Appeals in income tax matters Monetary Limit in Rs. 1. Appeal before Appellate Tribunal 2,00,000/- 2. Appeal under section 260A be....

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....any other assessment year, if the tax effect exceeds the specified monetary limits.   7. In the past, a number of instances have come to the notice of the Board, whereby an assessee has claimed relief from the Tribunal or the Court only on the ground that the Department has implicitly accepted the decision of the Tribunal or Court in the case of the assessee for any other assessment year or in the case of any other assessee for the same or any other assessment year, by not filing an appeal on the same disputed issues. The Departmental representatives/ counsel must make every effort to bring to the notice of the Tribunal or the Court that the appeal in such cases was not filed or not admitted only by reason of the tax effect being less than the specified monetary limit and therefore, no inference should be drawn that the decisions rendered therein were acceptable to the Department. Accordingly, they should impres upon the Tribunal or the Court that such cases do not have any precedent value.   8. Adverse judgments relating to the following should be contested irrespective of the tax effect. a) where the constitutional validity of the provisions of an Act or Rule are und....

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....on of the provision of s.268A by the Finance Act, 2008 w.e.f Ist April 1999 in the IT Act, 1961, no prejudice could be caused to the revenue even if the cases involving legal issues of recurring nature are withdrawn, since the newly inserted provision takes care of the adverse eventuality which could have been put against the Revenue.   xx xx xx xx xx   13. In the aforesaid backdrop, we are o the considered view that the circular dated 15th May 2008 would be applicable to the cases pending before this Court either for admission or for final disposal and that it is binding on Revenue. In this view of the matter all these appeals, having tax effect less than Rs.4 lakhs, are dismissed with no order as to costs."   9. Following the aforesaid judgment, this Court in Abhinash Gupta, observed:   "7. After hearing the arguments of the learned counsel for the parties, we find force in the preliminary objection raised by the learned counsel for the assessee with regard to maintainability of the appeal filed by the Department. During the course of arguments,it is not disputed before us that the tax effect in the instant case is less than Rs.4 lacs. In the present case,....