2018 (2) TMI 1648

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....vice of notice. The matter was listed again on 5th December, 2017 on which date also assessee went un-represented and without passing any order we posted the matter to be listed under the heading "To Be Mentioned" today, i.e. 12th December, 2017. Though there is no record of service on the assessee we are taking up this matter for hearing as Mr. Agarwal, appearing with Mr. Bhowmick, learned Advocates for revenue submit that this reference is below the tax effect as contemplated in Central Board of Direct Taxes (CBDT) circular no.21/2015 dated 10th December, 2015. On merits, Mr. Agarwal has submitted that the second question is the main question, answer to which would guide question nos.1 and 3. He has referred to a decision of this Co....

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....ral Board of Direct Taxes cannot issue any circular having retrospective operation. Respectfully following the above decision, we allow the instant appeals. The impugned order passed by the High Court dated November 2, 2011 in I.T.A.no.887 of 2006 is set aside. The matter(s) is/are remitted back to the High Court for readjudication on the merits and in accordance with law." Mr. Agarwal's contention is that this authority is not applicable and the same relates to a circular being CBDT Instructions no.3 of 2011, dated 9th February, 2011 in which clause 11 reads as follows: "11. This instruction will apply to appeals filed on or after February 9, 2011. However, the cases where appeals have been filed before February 9, 201....

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....n squarely put to rest taking further care of the interest of the Revenue by the order passed by the three Judges Bench of this Court in Surya Herbal Ltd. case (supra), which had put two caveats even to the retrospective application of the Circular. The subsequent orders have been passed by the two Judges Bench without those orders being brought to the notice of the Court, a duty which was cast on the Department to have done so to avoid the ambiguity which has arisen. Thus, the said view of the three Judges Bench would hold water and the Circular would apply even to pending matters but subject to the two caveats provided in Surya Herbal Ltd. case (supra)." He further submits that points involved in this reference neither have ca....