TaxTMI 
TaxTMI 
2012 (9) TMI 20
X X X X Extracts X X X X
X X X X Extracts X X X X
....nsel appearing for the respondent has raised a preliminary objection that in view of the Instruction No.3 of 2011 dated 9.2.2011 issued by the Central Board of Direct Taxes (for short "CBDT") under section 268A(1) of the Income Tax Act, 1961 (for short 'the Act'), this Tax Appeal filed under section 260A of the Act would not be maintainable as Instruction No.3 of 2011 issued by CBDT would also apply to pending Appeals. 4. It is necessary to reproduce Instruction No.3 of 2011 dated 9.2.2011 as under: "INSTRUCTION NO. 3/2011(F.No.279/MISC.142/2007- ITJ, DATED 9-2-2011. Reference is invited to Board's instruction No.5/2008 dated 15.5.2008 wherein monetary limits and other conditions for filing departmental appeals (In Incometax matters) before Appellate Tribunal, High Courts and Supreme Court were specified. 2. In supersession of the above instruction, it has been decided by the Board that departmental appeals may be filed on merits before Appellate Tribunal, High Courts and Supreme Court keeping in view the monetary limits and conditions specified below. 3. Henceforth appeals shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:- &....
X X X X Extracts X X X X
X X X X Extracts X X X X
....er/judgment involves more than one assessee, each assessee shall be dealt with separately. 6. In a case where appeal before a Tribunal or a Court is not filed only on account of the tax effect being less than the monetary limit specified above, the Commissioner of Income- tax shall specifically record that "even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in this instruction." Further, in such cases, there will be no presumption that the Income-tax Department has acquiesced in the decision on the disputed issues. The Income-tax Department shall not be precluded from filing an appeal against the disputed issues in the case of the same assessee for any other assessment year, or in the case of any other assessee for the same or 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 asse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ppeals have been filed before.......2011 will be governed by the instructions on this subject, operative at the time when such appeal was filed. 12. This issues under section 268A(1) of the Income-tax Act, 1961." 5. In reply to the preliminary objection the learned counsel for the appellant has urged that the instruction will apply to only those Appeals which are filed after the Instruction has come into force and it will not be applicable to the pending appeals. He placed reliance on an order dated 30.5.2012 passed in ITR No.4 of 1997 in C.I.T. v. Anil Chanana, wherein a Division Bench of Delhi High Court, has made observation on the question of applicability of Instruction No.3 of 2011, but the question had not been finally decided by the Delhi High Court. 6. The question about applicability of Instruction No.3 of 2011 had been considered and decided by the Aurangabad Bench of the Bombay High Court in Tax Appeal No. 78 of 2007, The Commissioner of Income Tax v. Smt. Vijaya V. Kavekar decided on 29.7.2011. The Division Bench, after considering earlier Instructions and various decisions of the Courts on Instructions, relying on the decision in Commissioner of Income Tax vs. Madh....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... may, 2008 in general and para (5) thereof in particular lay down that even if the same issue, in respect of same assessee, for other assessment years is involved, even then the Department should not file appeal, if the tax effect is less than Rs. 4 Lakhs. In other words, even if the question of law is of recurring nature even then, the Revenue is not expected to file appeals in such cases, if the tax impact is less than the monetary limit fixed by the CBDT." 7. One fails to understand how the Revenue, on the face of the above clear instructions of the CBDT, can contend that the circular dt. 15th May, 2008 issued by the CBDT is applicable to the cases filed after 15th May, 2008 and in compliance thereof, they do not file appeals, if the tax effect is less than Rs. 4 Lakhs; but the said circular is not applicable to the cases filed prior to 15th May, 2008 i.e. to the old pending appeals, even if the tax effect is less than Rs. 4 Lakhs. In our view, there is no logic behind this belief entertained by the Revenue." The Court has further held that the prevailing instructions fixing the monetary limit for the tax effect would hold good even for pending cases. Accordingly, the Court dis....