Karnataka High Court
The Commissioner Of Income Tax vs M/S Ranka & Ranka on 2 November, 2011
Equivalent citations: 2012 (4) AIR KAR R 357, 2012 TAX. L. R. 730 (2013) 352 ITR 121, (2013) 352 ITR 121
Bench: N.Kumar, Ravi Malimath
31, Cunningham Road
Bangalore RESyPONDE.l_\lTV "
(By Sri. A.Shankar
lluslJIA1sfHedfli{S.260AtfitheinconK:Tax/Mi,1961,
praying to formulate tlrie gs.ubostlar}.tialfiquestions of law stated
therein and allow the appeal and orders passed by
the ITAT, Baugnoma"n1jiTA3_Na578/Bang/2002 dmed
04.07.2005 ;'i1'"i'¥."l_ TC'/OI1l:.lI'I11._ ..tihe'~. o'rdc..r_ passed by the Joint
Commissioner offiheome Tax. Special Rangefl4, Bangalore.
7i'h'i's -l_'l:"A forllearing this day, N.KUMAR J.,
delivered the fo.i'ilowingi'.._ -- '
'g[agUnGMENT
___.
This appegall preferred by the revenue challenging the
by the Tribunal deleting the disallowance made
2* finder sg¢fi§n§4oAfin of Umilnomne Tax Act 1961 and
accordinglyfalllowing the appeal of the assessee.
.2.__ 0. The total tax effect which is the subject matter of
l'~_this7lappeal is Rs.4,87.730/~. At the time of hearing, the
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3
learned Counsel for the assessee raised a prelini:.nary-- ?jbje'"c--tioin
stating that in View of instruction No.3'/020-l'_l. 'issued on _
09.02.2011. the revenue is precluded.""f:0Irl'fi21iIi§' 0
where the tax effect does not-..euxceed-,_ the
High Court. Therefore, it asvfithe subject
matter of the appeal _Rs.4,e37H,730/-- which
is less than Rs.l0 lakhs_,_t'h.iVs Section 260A
of the lncorne"l' and it is liable
to be In View of the aforesaid
"considered as a preliminary
pOint"._"' I . . ._ l 0
3. .. au'Thev..l.ear'ned": Senior Counsel Srtlndra Kumar
appe'ar,.ingA.foi~ the Revenue contended that instruction
l\IVo_.'3,/20_:lfl»v"expressly states at clause (1 1) that the instructions
vvillbapply' appeals filed on or after 09.02.2011. However, the
cases vvlfiere appeals have been liled before 09.02.2011 will be
governed by the instructions on this subject, operative at the
time when such appeal was filed. The instruction which was
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4
operating on the day the present
instruction No.2/2005 which prescribed a 'liginitf
Rs.4 lakhs. Therefore, as the tax :el'i'ectis7 it i
was above the monetary limit___ prescribed
No.2/2005, the appeal filed Section the Act is
niaintainable and insir_ti'c.tior.iA l\Io.v3/_2VQil"l.p is not applicable to
the present case.
4. learned Counsel
appearing 2: that instruction
N().3/iiivflflfl and clause (11) of the
said circiilarrnalgfeslitffonlyprospecttive. It is settled law that a
circular VVh'lfCtlfl isflbenefieial to an assessee is to be applied
V" lLet:rosp..ee,tively andvflonly if the instruction or circular issued is
_ oppresfsviye -to.,_thtj assessee, it has to be construed prospectively
the Apex Court and therefore, notwithstanding
clausev(i;.l) of instruction No.3/201 l' the benefit conferred to
tyhehassessee under the said instruction has to be extended
retrospectively to all pending cases before the date of issue of
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the said circular and therefore, hesAubn1its"as"th'_e.taXV'effe:;tli's _
less than Rs. 10 lakhs. this appeal'-._is «to bejlldisnii-ssl"e?ki'on
that short ground.
5. In the light of the_.aforesaid eolntentiorls, the point
that arise for our Conside1'a.tio.n ll
"l/V.heth.er i_,f7.,$:E3r'LlCVt:l''OiffL: . /2011 dated
09.Q_2--.V.5,O'1 pro$peetiue'of1»lIel or whether it applies to
peridz1ng'i:,(i;qpediS Higlti Court on the day the
6. * This.eoir1«eept«_1lof prescribing the monetary limit for
preferring an _app.e'al by the Revenue is not new. It is invoked
fr¢iffi~ ;_1-e992: The ''' "instruction No.l777 dated 04.11.1987
*pre's::r1"o_ed:.la_:n'if)netary limit of Rs.25,000/- for departmental
inlelneome Tax matters before the Appellate Tribunal,
Rs.50i(l)0;_O/-- for filing reference, to the High Court and
ARls§"l,5O,OOO/-- for filing appeals. to the Supreme Court.
Subsequently, the said circular was superseded by the Boards
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appeal in respect of the yearts) in which effect?'
exceeds the monetary limit prescribedf ~ '
9. Similarly, in order to
Revenue when benefit is the» lease
monetary limit and the='v_.ery arisiiigvjin future in
order to avoid the (6) Came to be
introduced which I ..
"In a Tribunal or a
uC'OllT7,tTi3j: aor'z:*acc:oi.int of the tax effect
Z'-being :lL',ft€:'T'i3'(')I"i(3-'l'aI'y limit specified above.
Comrnissiionier'-..of'«fncometax shall specifically
record that "nthough" the decision is not
uac~ceptal3le,appeal is not being filed only on the
. co:7is:ide_ration that the tax effect is less than the
lirnit specified in this instruction".
' in such cases, there will be no
pvresurnption that the Incometax Department: has
Z CLC:C]l,Ll',€SC€'d in the decision on the disputed issues.
H The Incomeetaxr Department shall not be precluded
fromfiling an appeal against the disputed issues in
\.i\/"
12 _ A
(c) Where Revenue Audit objecttoft 'V _
been accepted by the t. 0
12. Clause (11) whichvllirleals 'application of the
circular reads as undef_:"'i~._
"This instructions-wil»Z. :'.app'lyA'<_t;ol filed on or
after cases where
appéfctlslvp_'hciU'el3lI.Iaeenjjiled 150: of May, 2008
toi_ltlpV instntctions on this subject,
?_operative_ga_tV it/he _tuhe_'n such appeal was filed. "
13. it is made clear that this circular is
isstied:__nncler0Seeti_onv 268A[l) of the Income Tax Act, 1961,
' ;the_rVeL'»y statutory recognition to this circular.
_.l'i:l..V_Similar to the above. the CBDT issued one more
Inst1't1eti;.')r1 No.3/2011 dated 09.02.2011 fixing the monetary
* . " lirnit. as:
Vl(§l) Appeal before the Appellate Tribunal ~ Rs.3,00,000--00 '
11/
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(2) Appeal under Section 260A before the -
Rs.l0,00,000 i l f i
(3) Appeal before the Supreme C_0.urtt_ ~
The various paras in the twc-'lc'L-regulars.
been stated above. Now thel:"c}uestion'forconsideration is
whether the 1*-.._is"appplicable to pending
proceedings or it onlyVihprospectixasqpgllasfieirpressly stated in
clause (1 1)
15. : for the revenue brought to
our noticeathev of several High Courts which have
talgegn the viev§7 that the circulars issued from time to time by
trhgidegpacrtnient prescribing the monetary limit for preferring
appeal"isif"o,nly::'pi:ospective and is not applicable to the pending
pro"ceed.ings:' In other words, the circular which is invoked on
the date of filing of the appeal is to be taken into consideration
l necessarily do not apply to cases which are filed prior to
by
15
The Punjab and Haryana Court in the case ;
Varindera Construction Co., (201 1}A3.3'1 mid" ' .
as under:
.110). After due consideration''-- of ..:Vrival:';
contentions, we are ilnyllltiqreehmenlt'x.yu_:itlh;fthe'l
contention raised on the" Revehue.
Circular laying controls the
filing of the appeals Appeals
filed as pe.rDth,e at' tf's.cl time of filing
cannot. Inlay circiular it applicable at the
time respectfully differ from the
view' Court as followed
this "object of the circular under
sectioénit mentioned is only to
govern" for filing of the appeals.
is noscope for reading the circular as being
to pending appeals. Even the Hon'ble
High Court held that the circular was not
it retrospectilive. It only observed that having regard
it falling money value and choking Court
docket. policy of monetwy limit was needed to be
adopted for pending matters. The document
referred to as circular dated June 5, 2007. in our
16
view. has not been properly appreciated.__§llt"onli;--: -1- V
says that the Department was
instructions as to monetary :lirnit"whi'le
appeals and should examine ;'l§fceVtlier_ 1"
appeals which did not,'conform'._to" the
monetary limits should be:'u1itl1drawn;~.i
memorandum was purporie_dly_A issu'ed_ oh a
direction of the ig_hfC_ou_rt ({;1i".hC.I.'iJ)Gg'OppllC(1bl€ only
to cases pending in the The
same car,-frat-_be§;Aregig{':.:to..4Vme_an vtlizat in all High
Courts, loll appeals Awereiltlolllbe examined in
the light'i:._of:Vtl1e applicable on the
Qyflelearirla andfiolt date offiling. "
16. .. 'Per contré1- learned Counsel for the assessee relied
" '~ _ Or;.i_'_[.h€ following jludg--mle11ts:
H 2 High Court in the Case of CIT vs. Pithwa
Er{gg."1--Vwdr'ics reported in (2005) 276 ITR 519 has opined
..th,us: '
l 5. One fails to understand how the Revenue can
contend that so far as new cases are concerned.
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the circular issued by the Board is binding A'
and in compliance with the said instr1icti«;5ns,.tt1e1J
do not file/ references if the tosxz.
Rs.2 lakhs. But the same approach. iSu'no.t..adopted_V T it
with respect to the oldiyrejerrecli cases if'the' T'
tax ejfect is less than lakh3..__ 'I.ri v'i'ew'.V:
there is no logic behind ~ 4 l_ V'
6. This Court ca;%..4"i;ay Vltalvcevjjudicial notice of
the fact that; by :tin_1eTlV'nifo.riey value has
gone drown,' oj*:j;itigattio.n expenses has gone
up. them J the Vofllthe Department
have _yinc:§re;asecl:' the burden on the
t)ep'ar_tr"uent':fh'as"'--als-0 increased to a tremendous
T<3xt:ent.. "Tlie.AA4ciorrido7's of the superior courts are
cholced with i'iuge"p_e"ndency of cases. In this view
._of V_Vma.tter,A"v_t;h"eh. Board has rightly taken a
decisiion not.t.Q___fi{e references if the tax effect is less
lakhs. The same policy for old matters
j'to:_}be adopted by the Department. In our
vieut/."I__tlie Boards circular dated 27" March, 2000.
T x much applicable even to the old references
which are still undecided. The Department is not
_juSl'1fl€d in proceeding with the old references
wherein the tax impact is minimal. Thus. there is
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no justification to proceed with decattes V H
references having negligible t5.'<'c*'é;/;f}'~"--€Ctt. 2 4'
The Madhya Pradesh High
Ashok Kumar Manibhai 4qnclA.V'Co. ' ";(2009]h'
31 7 ITR 386 (MP) followed th§',-Enfig)-I€('.S'EVV1"L(;1' jutigi11e,Dt0..1:endered by
the Bombay Hlgh C()ti1'§\: the benefit to the
assessee.
The 'case of CIT vs. P.S.Jain
and Cotbhhfepohifted) 3é'5"n*R 591 (Delhi) also followed
the afozI"es"a.i,d Bombay High Court.
'Ag,ainVthe,_VDe1hiV'High Court in the case of CIT vs. Delhi
Rcice E"'CZ:tb"«._.Ltd in ITA No.128/2008 dated 03.03.2011,
A judgment and extended the benefit to the
assessee'. 0 XXX
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The Bombay High Court; in CIT
K.Inamdar (HUF) reported in (200Q).,3_18 ITR"'1lt3om) has . Z
held as under:
7. One fails to uriderstand'~hiou> the
face of the above. clear instructlions of the..Ce'htral
Board of Direct that the
Circular dated May' by the
Central_Boar'cl of "applicable to the
Cases filed .15, in compliance
tlhereoj} do if the tax ejfect is
said circular is not
filed prior to May 15. 2008,
i.el.,'=;to= the'ol'd:' appeals: even if the tax
.-- e[fectuis..less.'tha'n lakhs. In our view, there is
logic Abehinci this belief entertained by the
l V' -» _V __
can very well take judicial notice of
the that by passage of time money value has
n down. the cost of litigation expenses has gone
filing of cases at the instance of Revenue has
increased: consequently. the burden on the
Department has also increased to a tremendous
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extent. The corridors of the superior cc).urts
choked with huge pendencg ojjcases. The .
expenses have also increased
view of the matter, the Board righi_iy"tal<eVr'i.'l.l'
decision not to file appeals the"ta__x ie)j*e=ct
than Rs.-4 lakhs so as -reduce of the
Department as ivelt as lofitiie tribunals and
courts. The same needs to be
adopted the 'achieve the
object: Central Board
It would 'be, _irt-.the_:Vpublicflirlterest if the Revenue
1conceritra'te.s_"on*the-.__cases wherein tax effect is
substantially than running after the
asses--sees w-hereiri«.f~he tax impact is less than Rs.4
lalchs cons_idering the cost of litigation and other
admirtistrativelllcost which may be much more than
" _ the liaX..re'covery.
D 1VO.l--.l.'/1fa--t juncture. it will be relevant to note that
Central Board of Direct Taxes has also issued a
Z Circiilar on June 5. 2007. directing the Department
H to examine all appeals pending before this Court on
case to case basis with further direction to
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withdraw cases wherein the criteria of
limits as per the prevailing;minstruciion'
satisfied, unless the question of"'involved--.to.rF
raised in appeal or referred to'.the_V_A.fIigh.'(3goi1rtjoitul' V
opinion is of a reciirriti1.\c_;:"-~,gq_ature' required
settled by the higher Court: pg V;
11. The aforesaid' Circiiglar' m_ake's._.it cleariithat on
the date of issuance-} prevailing
instructions hold good
even fQi""p.ending the same
the considered view that the
Central. Circular dated May
much applicable to the
pending department to withdraw
castes' hhurlielreintthefitax effect is less than the
j ' pr_escrib"cd_ morietary limits. "
the aforesaid judgments, it is clear that there
is "divergerit views insofar as these circulars prescribing
monetary limit, being treated as prospective or retrospective. In
X'/_
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other words, do they apply to pending matters a;n.te_rior-lltridthe
issue of the said instructions.
18. The circular Noylp/2QO9ll
that there is a prescribed disputeiresolutionlo_llme(:hanism in t;he
Income Tax Act. In Boalrddlof Tax cases
has issued instruct/ioAns_V:'_i7fOin_ll jvv._t,--i'me directing the
departmental"oliicers the tax effect is less
than the The Hon'ble Supreme
Limited vs. CIT reported in
(2004ll--.é66l that if the Revenue has not
challevngedlhthe Cohrrectness of the law laid down by the High
l V' ;_and».has accepted it in the case of one assessee, then it is
=n¢t:vope;i ._the Revenue to challenge the correctness in the
case of assessee without just cause. The department's
appeals are being dismissed by judicial authorities on the
Apcloiisideration that the disputed issue was not agitated in the
"case of the same assessee or in the case of any other assessee.
V,
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(a)
year: or
the same assesseefor any other assessmeiityfg
(b) any other assessee for the same
assessment year.
(3) Notwithstanding that no or
for reference has been filed by an inco.rr2e;tax3
authority pursuant to thevlliorders orlllinsytriictions or
directions issued 'under (1), ii*'sha'iz not
be lawful for an party in any
appeal or reference, .:to'v.con,te,na&'tal;ll J income--tax
authority acqiiicgs-ced"'Vin' l--tfiie____d§ecision on the
'*not7_ an appeal or
appglvicatiorifor case.
{4} or Court, hearing such
appeal V or shall have regard to the
orders, M instriicti~ons__o;r directions issued under sub~
'' section "{l)rand I the circumstances under which
S-£ICl1"l'C1ppealHorwapplication for reference was filed
_ orr'io;t'filed in respect of any case.
' l5}ll'E!2er_y"lorder, instruction or direction which has
issued by the Board fixing monetary limits for
" filing an appeal or application for rejerence shall be
it deemed to have been issued under subsection (1)
be and the provisions of subsections (2), (3) and {4}
shall apply accordingly.
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19. In the case of CIT Vs. OSCAR LABORA1"IES .I3.Lfi'b"
(STR VOL 324 Pg. 115 at 144) thy-1' '13i1nj.ab*'.an_c.i" if-ilaIyei11:4;Hn'1gh ' j
Court has referred to the objects foiflcri-slottingSection
the Act, which reads as under';
Aimed at A 'remediying the
aforesaid predicament_Q,tlt'he: the Finance
Act, 20t).8.,:in:~;erted i'nt:s3 1961 Act.
T his ofis derivable from the
objects l3lil'l'tiritr}odiiced in Parliament
th_eV'Finance Act, 2008. An
extract recorded in the Bill pertaining
to iinsertionof. 268A into the 1961 Act, is
_- .reprocluCgedwh"erei-Lnlder: [(2008) 298 ITR(st) 170/
The prop'osed____section seeks to provide that the
B'oar_a"«._._may, from time to time. issue orders,
- or directions to other income~tax
fixing such monetary limits as it may
ctveeriifjit. for the purpose of regulating filing of
it appeal or application for reference by any income'
tax authority under the provisions of this Chapter
A XX. l\/
' any case.
26
It is further proposed to prouidye tl1at"'u)'here',"=in,
pursuance of the orders, instructions or dAire.Ctio'n_ys
issued under subsection ('1_),'"_an inco'fr1e'~tax''~~ '
authority has not filed any"appeal"or applica'ti:OiiVfo'r
reference on any issue in the crise of'an_'assVé?ssee
for any assessmen't..yeaj:',l' it shall preclude such
authority from filinyl'o_r'».application for
reference on the same of -- la] the
same antjl "assessnient year: or
lb) any for same or any other
assessm_ent*y_ear;~.' V
It is also~vprop1oscd"to provide that notwithstanding
that no 'appeal or appljicattion for reference has been
filedcflby vvan' _income--"fax authority pursuant to the
'orders or instructions or directions issued under
s_u.b~s.ection 'I; 'V it shall not be lawful for an
. _, ass9s8_e'e,__being a party in any appeal or reference,
. fa :°"con{;'eri'd that the incometax authority has
acquiesced in the decision on the disputed issue by
~~not filing an appeal or application for reference in
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It is also proposed to provide that the H
Tribunal or Court, hearing anynappealforreference' _
had filed under this Chapterjzy shallyhauue 'told
the orders, instructions or direictions issued by the ''
Board from time to tirneeitiher before _orv,af'te'r'*'the°
insertion of this section an'd_'the circiinisltancves in
which such appealor reference was
filed or was notfileldgiin ja.nd--,accordingly
the Tribunal or Court»shall":lecide'_thesappeal or the
reference ri:eri§ts" of thejvissue-eonsideration.
It is p'roposedj-- that every order,
diiectioriaw-hichfihas been issued by
the rrionetary.' limits forfiling an appeal
or.application;_]b_r r'eferei'ice shall be deemed to have
beenfiis-sued_ under subsection (1) and the
y._§gprovisions.._Vof subsections (2). (3) and (4) shall
accordingly.
This"ar'ne_r1dment will take efiect retrospectively
,j'ivo"im'szjgginz, 1999. "
Interpreting this provision, the Division Bench of
9. l Piinjab and Haryana High Court in the above case of CIT
K/9
28
VS. OSCAR LABORATORIES P. LTD. (2010) _.__i 1.5
(P&H) held as under:
"Under Section 268A(1) of the
1961. the Central Board of Directii' it
authorised to issue "orders, . inslttr'uc.t.ion?r
directions to the incomertcL*:_ lautliorities, Vldying
down monetary' ;QFn. "p_u.rp'oses of filing
appeals. As a con'sequence vt.he__'.i1nsertion of
section ";irlVst;ructions or
clireci:i_oh .o:n_ sulbjeiclt loflllmonetwy limits
for filing-iiclppealsr to have attained
sta}:us."",There'"canl' be no dispute that
every' the mandate of law. leads
toba obligation to comply
V_ ioithlélthevv Subsection (5) of Section
mandates that instructions, orders or
directions, even issued earlier, i.e., prior to the
section 268A in the 1961 Act. by the
2008, firing monetary limits for filing
4' ..ofaappeals. shall be deemed to have been issued
under subsection {1} of section 268A of the 1961
Act. This conclusion emerges from the fact that
section 268A of the 1961 Act was introduced with
R/to
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the 1961 Act would inevitably lead
conclusion that the Revenue can prefer a_n1__apper1L '7' R
if a case raises a substantial qLtes_tio,n_"'of'rlauz.
subject to the monetary lin;'ti'tts 'stipLtlated_Alb_t,t_ thee'
Central Board of Direct 'open_':tt>yVthe..f7R.A
Revenue to prefer appealllronly four
grounds specified in paragraph 3 trheeinstlruction
dated March 27, .2000, &,and. no_ other ground, in
cases where the': «less than that
prescribed therein,_"_" V
_ _1ln'.*th.is*.bacl{g-r_ou.nd, it is necessary to notice the
"National 4' Iuitigatioiz Document Released".
to,3 years." jlfireads as under:
" .f'llVTROI)UCTION
Whereas at the National
Strengthening the Judiciary toward Reducing
Consultation for
The
Centre ghaséumrnlltilateld the National Litigation Policy to reduce
., the fjfindingvviunllyarious courts in India under the National
'Legal _M-ission reduce average pendency time from 15 years
33
2. Government must cease to be a
litigant. The philosophy that matters '7'
left to the courts for ultimate decision,
discarded. The easy approach, g_ b(_)_ouVrtV'
decide," must be eschewed&aridlcondemi2.ed.:
3. The purpose underlying thiskpolicg"'isfQa:lso
reduce Government litigation in" cokiirts that
valuable Court 'time -spent' in ' resolving
other pending 'cases so to the Goal in
the National average
p8lld_€'i'".';(',%y'g time T to 3 years.
'Q/"-._Go.verriment have to keep
the 4.,;5r~i]rmip'zés Vfincorporated in the
Hl\/atio5nal "i:'miss'ion' for judicial reforms which
includes.t"».ide.ntifying bottlenecks which the
Governrnen'tA'and'it;s agencies may be concerned
ivith and also removing unnecessary
.___Governme----t~cases. Prioritisation in litigation
be achieved with particular emphasis on
1ftvel,Fare" legislation, social reform, weaker
V. sections and senior citizens and other categories
kfirequiring assistance must be given utmost
. V . priority.
34
In respect of filing of appeals in R€V€n:L'1'€. matters" it
stated as under: _ V _
"G1 Appeals in Revenue matters willl 'not;be'f--iled: " it
a) if the stakes are jnet high-and Varese: lessthgan
that amount to be Rééienue
Authorities: V K ._ it
b) ij' the matt:erg..is- _a series of
judgments of High Court
which 'field'--fand_g:Vtwhich have not
been athe Court:
has acted in accordance
it practice:
._ of'. change of opinion on the
V All pe'ndi_ng;:ases involving Government will be
Trevgiewed. This Due Diligence process shall
drawing upon statistics of all pending
G '.V'V'n7ai5:ters which shall be provided for by all
. Government departments {including PSUs). The
Office of the Attorney General and the Solicitor
General shall also be responsible for reviewing
...\\,.\,,-.....W... .m
-22.
B}
35
all pending cases and filtering friijoloiis.
uexatious matters from the rnerit<;«.--f'ic;i_ts': :;n.e_s'.--..
Cases will be grouped and c.dtegorz'2ed;' - The ''
practice of groiipin:g"'---should be i'ntrod'i1ced':
whereby cases shouldHbell'ds_signed dpczrticfiular
number of identity acc'ordin'g t'o,_the stibject and
statute inuoluedfifl Inlfaectg. siibgrouping
will be also betiitenipltied,--"'*-.j~b"l;;i.t:cilitate this
processes; '_staridard be devised
which lip at the time of
filing'::.@§_cases--.. fitiill be set up to
irr2'pAlelfif.rientl7'fc'cit;ee"'g'o.dn'2:r/1tion, review such cases to
be withdrawn. These
include lc'(1s"e=.s izghfch are covered by decisions
-- . of cu0zJ..rts'tindlV'cases which are found without
n'ie_rit withdrawn. This must be done in a time
_ A fashion.
ll Government to evolve similar policies.
The Government has formulated the National
'_'Litigati0n"lPolicy with a View to ensure conduct of responsible
.«:'_.liti.ga'tion by the Central Government and urges every State
Its aim is to transform
H/,
40
is to make that instruction applicable retrospec4ti»Vtelyl'V;~to"all
pending appeals as on the date of the circular.ffi.
substantially serve the object of the 'p'o'licy.
25. It is in this ctontexgtfithe ci.ue.sti'onl when the
instruction expressly states olfltiie. said policy is
prospective, still can on such
instruction so this context. the
Apex Court. OF CENTRAL
in 2006 (204) ELT 517 SC,
dealing a beneficial circular is to be
construed, ha:=_la'plproacl1ed this question in the following
. V. l"'ArnaVriner§"Atl' paragraph 13 of the judgment, it is stated that the
further submitted that the circular being
oppressixze against the respondent, has to apply only
W..prospec.tiyely and cannot be applied retrospectively. In other a beneficial circular has to be applied prospectively. Thus. when the circular is against the assessee they have a L, 42 'V (204) E.L.T. 517 (so). In the said judgfiient.:f_ithisi Court held that a beneficia_:l"r'ci.rculcétr to Vibe]. applied retrospectively while etrcluiliiczrp has to be applied prospectiueflgp. "=Thus,,u:herzf' the l' Circular is against, the Vthepy hiatielrigvhtl to claim ertforcement of the ie prospeet'iuel_y.
27. in the } t1'.i'C"V_:vv:'I.]f'1.'S'tI"L1Ci,iOI1 No.3/11 is more beneficial '- than: - ction ' If instruction No.3/11 is also to ltihiewpending appeals before this Court' ':'xxr&;ii1d'grantVi.' the assessee. Apart from granting a.s_s"e.s__seef, if number of appeals pending before Court of on the basis of the said circular, the prAec'io1usltime which would be saved by this Court ., gould better for deciding disputes where tax effect is eriorniouVs." apart, the duration, an appeal takes in this Cc:.urt wouilédbe reduced as desired by the National Litigation 48
28. It is also not out of context periodically. the Revenue introduces what7.__ isf-Calledj Karvivadh Samadhan Scheme ajzidm Voltintariyfylfiiscloslurlei of T. if Income Scheme to annul black to persons who are not prompt-jiffiling.V'retu'rnsf:'..andfpaying But unfortunately, persons tax regularly but have succeeded before that there is no tax liability, are _rnade""t"o instead of en«ergylinlbroductive work. Under these yiew that it is settled law that under this fiscal legislation granting of tax has to be construed styricj/tly,.Any 'Circulars/Instructions issued conferring benefit on"thefhaslsessees who are still to come to Court and who al._rea"(ly:'i«:iside.t.he Court, at any rate, if such a benefit is given )[(A)zp'€I1CliHgn isnatters, it would be only in the nature of one time settlement. which most of the financial institutions through out thgrcotlntiy extend to defaulters who have borrowed money and who refuses to pay the same.
46 the object with which those provisions department has interpreted those provisions pr_everit.ing those benefits reaching the persons tyoiwthom. éitiéwasintended.l'"1In7. V most of the cases, the Tribunal assessee, has interpreted p.roV'1.gio.ns':~--.::Min' proper perspective and have eygtended--th:e'1'bei:.efit the assessee. It is against those orders, of filed mechanically as compulsive of responsibility. It is our which are filed by the The majority of the appeals aresole object of leaving it to the Courts for ultimate is, 'let the Court decide'. The gauthority.,/,Vho1dec'ides to prefer the appeal is not prepared tovlvltyalkefithe"responsibility. There is an attempt to save their s.o:'~..tzhatA:'-tomorrow they are not held responsible in any ma.nner;*l_t}'is this approach, which is to be eschewed and condeinried, as stated in the National Litigation Policy. It is yet anojtlier ground for us to make this circular applicable to the V pending proceedings.
cases in appeal in vanous Courts and Tribunai4s"on..ythe' 'date of 49 the circular/instruction. -
For the aforesaid reasons, we'pas.s the folloxiring a
(i) o R Instructiori ishhiahlsoiapplicable to the pending" agjpealsg __ i it instant case is ~ the appeal '' on the ground of iiimit, without expressing any x opinio__n__,on the merits of the claim, 'aiitayking it clear that the Department is
--. at liberty to proceed against the assessee in future, if there any amount due from the assessee, on similar issue 50 and if it is above the »monetafy--VIliniit.'_f_ prescribed.
Parties to bear tI'iVei:fown cbs:t§*.e Sd/-' JUDGE