TaxTMI 
TaxTMI 
2013 (3) TMI 17
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....0/-. Relying on the judgment of Special Judge Bench of Tribunal in the case of JOT vs. Peerless Developers Ltd. reported in (2006) 103 D 349 (Kol) (SB), it dismissed the appeal in limine. 4. The impugned order is challenged proposing the following question of law for our consideration:- "Whether the Appellate Tribunal is right in law and on the facts in dismissing the appeal of the Department in limine on the ground that the appeal is not maintainable as the tax effect involved is less than Rs.2 lacs?" 5. Heard learned Senior Counsel Mr. M.R. Bhatt for the Revenue and in response to the notice issued on 27.12.2011 for final disposal of the matter, learned Senior Counsel Mr. Saurabh Soparkar appeared for the assessee respondent. 6. On having heard both the learned Senior Counsel and on having examined the material on record, it needs to be noted at the outset that identical question has been examined expensively in the case of Joint Commissioner of Income-Tax Vs. Saheli Leasing & Industries Ltd reported in (2010) 324 ITR 170 and in the decision of this Bench in Tax Appeal No. 1601 of 2009 in case of Commissioner of Income-Tax-II vs. Good Luck Marketi....
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....uires submission of return of loss also and reads as under:- "80. Notwithstanding anything contained in this Chapter, no loss which has not been determined in pursuance of a return filed [ in accordance with the provisions of sub-section(3) of section 139], shall be carried forward and set off under subsection( 1) of Section 72 or sub-section(2) of section 73 or sub-section (1) [or sub-section(3)] of section 74 [ or subsection (3) of section 74A]." 19. Section 139(3) of the Act pertains to return of loss and reads as under:- "(3) If any person who has sustained a loss in any previous year under the head "Profit and gains of business or profession" or under the head "Capital gains" and claims that the loss or any part thereof should be carried forward under sub-section(1) of section 72, or sub-section(2) of section 73, or sub-section(1) [or subsection( 3)] of section 4, [or sub-section(3) of section 74A], he may furnish, within the time allowed under sub-section(1), a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it wer....
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....ward and set off under the provisions specified therein, the Assessing Officer shall notify to the assessee, by an order in writing, the amount of loss as computed by him for the purpose of such Sections. Thus, not only the computation of loss but different headings under which such loss is allowed, would also have to be judged and intimated by the Assessing Officer. 22. Because the loss suffered can be set off or carried forward in the subsequent years for a specified period, as provided in different provisions the Legislature requires that the assessee should, even while declaring loss, not make unreal claims. It is in this respect that sub-clause (iv) of clause (c) of Explanation 2 of Section 147 creates a deeming fiction that even a case of excessive loss would be deemed to be a case where income chargeable to tax has escaped assessment. 23. We may recall that in the case of Gold Coin Health Food P.Ltd. Private Limited (supra), the Apex Court while overruling the previous decision in the case of Virtual Soft Systems Ltd. vs. CIT reported in [2007] 289 ITR 83 (SC) held that even in a case where claim of loss is found to have been wrongly made, by virtue of Explanation 4 of....
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....der:- "268A. (1) 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 issue b....
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....he Board by issuance of orders, instructions or circulars. This would not amount to taking away the right of filing of appeal or that such right is prohibited by executive instructions. Section 268A(1) of the Act now recognizes such right of the Board to regulate the filing of appeal or application before the Tribunal or the court. It is also true that when the hon'ble Supreme Court or the territorial High Court have declared the law on a question, it is not open to the Tribunal to direct that the circular issued by the Board prescribing the monetary limit should be given effect to and not the decision of the hon'ble Supreme Court or the territorial High Court. It is, however, equally true that the Tribunal's attention must be drawn by the Departmental representative to such decision of the hon'ble Supreme Court or the High Court. An objection must be raised by the Departmental representative." 28. It is thus not possible for the Revenue to deny nor was it so done before us that Revenue's appeals before the Tribunal must be regulated by the Board's circulars issued from time to time laying down besides other conditions, monetary limits for preferring such appeals. The questio....
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....7.3.2000, each case shall be taken singly. 31. Fresh circular dated 24.10.2005 came to be issued by the Board revising the monetary limits for filing appeals before the Tribunal and the Courts as under:- "2. In partial modification of the above instruction, it has now been decided by the Board that appeals will henceforth be filed only in cases where the tax effect exceeds the revised monetary limits given hereunder:- Sl.No. INCOME-TAX TAX EFFECT (i) Appeal before Appellate Tribunal Rs.2,00,000/- (ii) Appeal u/s. 260A Rs.4,00,000/- (iii) Appeal before the Supreme Court Rs.10,00,000/- The monetary limits were, however, to be ignored in certain exceptional cases specified in para 3 of the said circular, which reads as under:- "3. The Board has also decided that in cases involving substantial question of law of importance as well as in cases where the same question of law will repeatedly arise, either in the case concerned or in similar cases, should be separately considered on merits without being hindered by the monetary limits." Barring above modifications, para 4 of the Circular provided that the instructions dated 2....
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....s providing as under:- "3. Hence forth appeals shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:- S.No. Appeals in Income-Tax matters Monetary Limit (in Rs.) 1. Appeal before Appellate Tribunal 3,00,000/- 2. Appeal u/s.260 A before High Court 10,00,000/- 3. Appeal before Supreme Court 25,00,000/- It is clarified that an appeal should not be filed merely because the tax effect in a case exceeds the monetary limits prescribed above. Filing of appeal in such cases is to be decided on merits of the case. 4. For this purpose, "tax effect" means the difference between the tax on the total income assessee and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issues against which appeal is intended to be filed (hereinafter referred to as "disputed issues"). However the tax will not include any interest thereon, except where chargeability of interest itself is in dispute. In case the chargeability of interest is the issue under dispute, the amount of interest shall be the tax effect. In cases where returned loss is reduced or ass....
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....bject to certain exceptions, Tax Appeals in which effect of tax is lower than the prescribed limit such appeals whether before the Tribunal, High Court or the Supreme Court, should not be presented. For example in Circular dated 27.3.2000 it is provided that appeals will be filed only in cases where tax effect exceeds the revised monetary limits i.e.Rs.2,00,000/- for the appeal to be file before the appellate Tribunal Rs.4,00,000/- for the appeal or reference before the High Court and Rs.10,00,000/- in case of appeals to the Supreme Court. Such limit came to be revised by Circular dated 24.10.2005 which provided for monetary limits of tax effect of Rs.2,00,000/-, Rs.4,00,000/- and Rs.10,00,000/- for appeals to the Tribunal, High Court and the Supreme Court respectively. None of these circulars provided that by virtue of assessment of loss by the Assessing Officer, different from that declared by the assessee, even if the possible tax effect is huge, no appeals should be presented before the Tribunal, High Court or the Supreme Court; merely because ultimately the income of the assessee was negative. We have no hesitation in coming to the conclusion that none of the circulars present....
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....ubsequent judgment in the case of Nanakram Jaysinghania (upra) would not persuade us to change our view. In the case of Mangalam Risinus (supra), the Delhi High Court simply affirmed the view of the Tribunal making following observations. "5. We are in agreement with the view of the Tribunal that even if the order of the Assessing Officer is upheld the tax recovery so far as the revenue is concerned would be nil. In the event the question has any impact on subsequent years, we leave it open to the revenue to raise it in the succeeding years, if need arises. 6. Learned counsel for the revenue submits that the tax effect is not required to be seen but the tax effect on the issue involved is to be seen. This is precisely what the Tribunal has done. We do not find any error in the view taken by the Tribunal." 41. We do not find that various provisions and authorities brought to our notice were cited before the Delhi High Court. Similarly, in the case of Nanakram Jaisinghania (supra) Delhi High Court affirmed the view of the Tribunal making following observations:- "2. Learned counsel for the appellant submits that the Central Board of Direct Taxes has issued OM dated May....