TaxTMI 
TaxTMI 
2015 (2) TMI 66
X X X X Extracts X X X X
X X X X Extracts X X X X
.... when the appeal was called out for hearing. We observe this to be the continuing feature of the hearing in the instant case; there being neither any appearance nor any application for adjournment on the different dates for which the matter was posted for hearing. In fact, the notice of hearing, sent per registered post at the address specified in Form-36, which we further find to be the same as stated in Form No.35 filed by the assessee before the first appellate authority, has come back unserved. No substitute address has been communicated by the assessee, with there being also no letter of authority on record. Under the circumstances, we proceeded to decide the appeal after hearing the appeal before us. Arguments 3. At the very outset....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ilar language, i.e., as vide para 11 of Instruction No.5/2014. How could then, the Bench observed, could it take a different view in the matter? He, though conceding to the same, i.e., the likeness of the language, so that a different view could not be taken by us on the basis of a change in language, would yet vehemently defend the Revenue's case. The right to appeal is a statutory right and, therefore, cannot be curtailed other than by and under the statute itself. The earlier decisions by the hon'ble court, as in the case of CIT vs. Camco Color Co. [2002] 254 ITR 565 (Bom) and CIT vs. Pithwa Engg. Works [2005] 276 ITR 519 (Bom), were rendered when section 268A was not on the statute-book. Among the first such Instructions by the Board wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me. Accordingly, traveling outside the clear mandate of an Instruction/s, which postulates the date with effect from which it would apply, is incorrect both on facts and in law. 4. We have heard the party before us, and perused the material on record. Section 268A: A background 4.1 The underlying objective of the Board's instructions is to reduce litigation. Section 268A provides the legislative sanction to the said objective; the Board's Instructions being not binding on the appellate authorities, while at the same time protecting the right of the Revenue to file or not to file an appeal, reference, etc. The Board has been in fact issuing Instructions from time to time, setting out the monetary limits below which an appeal may not be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s applicable for appeals filed before or after specified dates. The recent circulars make them clearly prospective, so as to be applicable for appeals with reference to the date of filing of the appeal. It is this that has led to the present controversy. The Issue 4.2 Coming to the facts of the instant appeal, the same was without doubt filed on 01.03.2011, and its appeal effect is Rs. 3.36 lacs. The question, therefore, is whether it would be covered by Instruction No.3/2011 dated 09.02.2011 or by Instruction No.5/2014 dated 10.07.2014. The relevant clause of the Instructions issued by the Board u/s.119 r/w s. 268A is as under: 1) Instruction No.5/2008 dated 15.05.2008 '11. T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n granting so, the same could only be on the basis, and in terms, of or by an express provision of law. Section 268A of the Act clearly requires the appellate forums, being the appellate tribunal, high court and supreme court, to, while deciding the appeals by the Revenue preferred before them, have regard to, inter alia, the directions, instructions, etc. by the Board prescribing the monetary limits for filing its appeals before the said forums. The said directions, instructions, etc. thus assume part of and have the force of law. Further, the monetary limit prescribed is for regulating the filing of appeals or references by an income tax authority under the Act. Could, therefore, it be said that the competent authority, in filing the inst....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l high court, which has taken a consistent view in favour of the Instructions by the Board in the matter, both prior and subsequent to section 268A, brought on the statute by Finance Act, 2008, being retrospective, so that they shall apply to appeals by the Revenue filed prior to the date of their issue and coming in to effect. Put differently, shall apply to pending appeals. In other words, the monetary limit prescribed per a circular/instruction issued u/s. 268A that shall apply qua an appeal is that in force at the time the appeal is heard and not when it is filed. Reference in this context be made to the decisions by the hon'ble court, as in the case of CIT vs. Varsha Dilip Kolhe [2013] 350 ITR 384 (Bom); CIT v. Vitessee Trading Ltd. [2....