Punjab-Haryana High Court
Commissioner Of Income Tax vs M/S. Oscar Laboratories Pvt. Ltd on 26 February, 2009
Author: J.S. Khehar
Bench: J.S. Khehar
ITA No. 171 of 2002 1
In the High Court of Punjab and Haryana, Chandigarh.
ITA No. 171 of 2002
Date of Decision: 26.02.2009
Commissioner of Income Tax, Chandigarh-II.
....Appellant.
Versus
M/s. Oscar Laboratories Pvt. Ltd.
....Respondent.
Coram:- Hon'ble Mr.Justice J.S. Khehar
Hon'ble Mr. Justice Nawab Singh
Present: Ms. Urvashi Dhugga, Advocate
for the appellant.
Mr. V.P. Gupta and
Mr. Pritam Saini, Advocates
for the respondent.
...
J.S. Khehar, J.
1. The respondent - assessee submitted a return for the assessment year 1988-89, declaring its income at Rs.76,257/-, on 6.2.1990. The Assessing Officer in exercise of the power vested in him under Section 143 (3) of the Income Tax Act, 1961 (hereinafter referred to as the 1961 Act), vide his order dated 28.12.1990, determined the income tax liability of the respondent - assessee at Rs.1,02,518/-. Dissatisfied with the order passed by the Assessing Officer (dated 28.12.1990), the respondent - assessee preferred an appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals), vide his order dated 25.9.1991, ITA No. 171 of 2002 2 partly allowed the appeal preferred by the respondent - assessee. The Commissioner of Income Tax (Appeals), arrived at the conclusion, that the respondent - assessee was an industrial establishment engaged in manufacturing/processing of goods, and as such, was entitled to a deduction under Section 80-I of the 1961 Act. The Appellate Authority, accordingly, directed the Assessing Officer to allow the respondent - assessee's claim for a deduction under Section 80-I of the 1961 Act.
2. Dissatisfied with the order passed by the said Appellate Authority, the Revenue preferred an appeal against the order passed by the Commissioner of Income Tax (Appeals), dated 25.9.1991, before the Income Tax Appellate Tribunal (hereinafter referred to as the Tribunal). The Tribunal allowed the appeal vide an order dated 18.11.1999. The Tribunal arrived at the conclusion, that the Commissioner of Income Tax (Appeals) was not justified in arriving at the conclusion, that the respondent - assessee was an industrial undertaking engaged in the processing of "articles" or "things". The Tribunal concluded, that merely on account of the fact, that the respondent - assessee had been incorporated with the object of manufacturing drugs, and the mere fact that the drugs in question were sold in the name of the assessee, would not constitute a sufficient basis for concluding, that the assessee was an industrial undertaking engaged in the business of manufacturing of "articles" or " things". Accordingly, the Tribunal held that the assessee was not entitled to deduction under Section 80-I of the 1961 Act.
3. A civil miscellaneous application was filed by the respondent - assessee against the order passed by the Tribunal dated 18.11.1999 before the Tribunal itself, requiring the Tribunal to recall its order dated ITA No. 171 of 2002 3 18.11.1999 on the ground, that the respondent - assessee had not been served in the proceedings, which had culminated with the order of the Tribunal dated 18.11.1999, as the respondent - assessee had been deprived of an opportunity of projecting its claim before the Tribunal. Having considered the plea raised by the respondent - assessee, the Tribunal vide its order dated 25.9.2000 re-called the ex-parte order passed by it on 18.11.1999.
4. On a reconsideration of the controversy, the Tribunal vide order dated 14.3.2002, dismissed the appeal preferred by the Revenue. It is, therefore, that the Revenue has preferred the instant appeal so as to impugn the order passed by the Commissioner of Income Tax (Appeals) dated 25.9.1991, as also, the order passed by the Tribunal dated 14.3.2002.
5. When the matter was taken up for hearing on 21.1.2009, a preliminary objection was raised by the learned counsel for the respondent - assessee, on the issue of maintainability of the instant appeal. Reliance was placed on Section 268-A of the 1961 Act, as also, the instructions issued by the Central Board of Direct Taxes, laying down monetary limits for regulating the filing of appeals. It was the vehement contention of the learned counsel for the respondent - assessee, that the instant appeal had been preferred by the Revenue in clear violation of the mandate of the instructions issued by the Central Board of Direct Taxes. It was submitted, that the instructions under reference had acquired statutory status after the insertion of Section 268-A of the 1961 Act.
6. On 21.1.2009, learned counsel for the appellant sought an adjournment so as to enable her to obtain instructions and to prepare herself on the preliminary objection. Thereafter, the matter was taken up for ITA No. 171 of 2002 4 hearing on 19.2.2009 solely on the preliminary objection raised on behalf of the respondent - assessee.
7. During the course of hearing, learned counsel for the appellant vehemently repudiated the preliminary objection raised by the learned counsel for the respondent - assessee. The claim of the appellant - revenue is based on instruction No.1777 dated 4.11.1987. A copy of the aforesaid instruction was made available to us during the course of hearing. Relevant extract from the aforesaid instruction is being reproduced hereunder: -
"At present Board's approval is required for filing Reference Application under section 256(2) before the High Court , where the application under section 256(1) is rejected by the Tribunal. Similarly, Board's approval is required for accepting or contesting any adverse order of the High Court. Board's approval is also required for contesting before the High Court or the Supreme Court, the adverse orders of the Settlement Commission of the Appellate Tribunal for forfeited properties.
2. This area of the Board's functions has been reconsidered. It has been now decided that the decision to accept or contest adverse judgements of High Courts/ITAT etc. will be taken by the concerned, Chief Commissioner.
3. The Board desire that, while deciding the question of filing an appeal/reference in respect of an adverse judgement of High Court/ITAT etc., the Chief Commissioner should follow the following guidelines: -
Monetary Limits: -
Filing of departmental appeal/reference should be selective. Guidelines were laying down monetary limits of revenue effect of Rs.10,000/- for filing appeals before ITAT, Rs.30,000/- for Reference before High Court and Rs.60,000/- for appeals to Supreme Court (Instruction No.1573 dated 12.7.84 and 1612 dated 6.4.85). These guidelines should be adhered to, subject to the exceptions given below. For the purpose of working out ITA No. 171 of 2002 5 monetary limit, the cumulative revenue effect of the issue in the assessee's case for all the years up to the year for which returns have been filed, should be taken into consideration. There the same issue is involved in different cases of a group (e.g. industrial house, family, connected cases etc.), the revenue effect of the group, and not the individual case should be taken into account for the purpose of the monetary limit. While applying the monetary limits, the effect of carry-forward, effect of consequential edition/deletions in other years should be kept in view. In cases of firms/AOP the revenue effect. In cases of partners/members be also taken into account.
(ii) Question of Law: -
Where a question of law arises for the first time before the High Court concerned, it should be contested irrespective of revenue. Where an adverse judgement is delivered by a High Court in such cases, stay off the operation of the judgement should be obtained either from the High Court itself or from the Supreme Court.
(iii) Other adverse judgements need to be contested irrespective of the revenue effect: -
The judgement relating to the following should be contested irrespective of revenue effect: -
a) Where prosecution proceedings are contemplated against the assessee;
b) Where strictures have been passed against the department or its officers;
c) Where Revenue Audit objection in the case has been accepted by the Department;
d) Where Board's order, notification, instruction or circular is the subject matter of adverse order;
e) where in respect of one assessment year the order is contested in the case of an assessee for any reason, the adverse judgement for other years in issue in that case, should also be contested irrespective of the amount involved so that ITA No. 171 of 2002 6 Department's case on the issue is not prejudiced on the ground that in respect of some year the department has already accepted the assessee's case;
A report to the Board should be sent to in respect of the judgements containing strictures or which are contrary to Board's orders, notifications, instructions, circulars etc.
iv) Adverse judgements which need not be contested;
a) where the adverse judgement is in accordance with the view in the Board's instruction or circulars etc.
b) where the adverse judgement is in respect of mere procedural failure of the assessee like non-signing of appeal memo by the appellant or Form 12 by one of the partners etc.
c) Adverse judgement, in respect of protective order revered the substantive order made by the Department is upheld, and becomes final.
v) Adverse judgement where Board's prior will is necessary for further contest: -
a) Special leave petitions under Article 136 of the Constitution are filed before the Supreme Court only in consultation with Ministry of Law, Delhi, and on the advice of senior law officers
- AG, SG or ASG. Therefore, where the Chief Commissioner decides contest, the adverse judgement by filing special leave petition before the Supreme Court, they should send the proposal to the Board for further processing.
b) where some Chief Commissioners have already accepted an adverse judgement on an issue but the concerned Chief Commissioner has some reservations about it and wants to contest that view, Board's approval may be obtained.
Similarly, where other Chief Commissioners are contesting the adverse view, but the concerned Chief Commissioner wants to accept that view, Board's prior approval may be obtained.
c) where the assessee involved is a public Sector Undertaking , and the Commissioner wants to contest the adverse judgement, he should make a Reference to the Board. If there is no ITA No. 171 of 2002 7 agreement between the undertaking and the department at the Board's level, the matter will be referred to Ministry of Law, whose opinion will be binding on the undertaking and the Department.
d) where the revenue effect of the case is over Rs.5 lakhs and there is disagreement, the Commissioner and the standing counsel in regard to acceptance or non-acceptance of the judgement, Board's approval may be obtained.
4. Where for exceptional reasons, the Commissioner wants to deviate from the above guidelines, he must approach the Board , well in time keeping the period of limitation in mind.
5. An Integrated Judicial Reference System (ITRS) has been set up in the office of the Chief Commissioner, Hyderabad and is now operative. The acceptance or otherwise of adverse judgements of High Court or special benches of Tribunal should be communicated to this Centre every fortnight so that this information is available to all other charges, and there is uniformity in the approach of the Department in different charges.
6. These instructions will apply to litigation under other direct taxes also e.g., Wealth-tax, Gift-tax, Estate-duty etc..
7. These instructions may please the brought to the notice of all the Commissioners in your charge."
Relying on the aforesaid instruction, it is acknowledged by the learned counsel for the appellant - revenue, that the instruction vests authority in the Chief Commissioner of Income Tax to decide, inter-alia, whether or not, the Revenue should prefer an appeal to the High Court against an order passed by the Income Tax Appellate Tribunal. According to the learned counsel, the aforesaid instruction also includes guidelines to be kept in mind by the Commissioner of Income Tax while deciding whether an appeal should be filed or should not be filed. Guidelines, according to the learned ITA No. 171 of 2002 8 counsel, are only directory and never mandatory. For filing a reference/appeal before a High Court, the monetary limit stipulated under the instruction referred to above, was that the tax effect should be more than Rs.30,000/-. The instruction, according to the learned counsel, also delineated exceptions i.e. circumstances where the monetary limit prescribed may not be adhered to. Illustratively, it was pointed out that monetary limits laid down by the instruction were exempt in a case where "a question of law arises for the first time before the High Court". Other adverse judgements, which need to be contested irrespective of the revenue effect could also be appealed against. Appeals could also be filed in cases where prosecution proceedings are contemplated, where strictures have been passed against the Revenue or its officers, where an audit objection had been accepted by the Revenue, where the order under challenge is against an order of the Central Board of direct Taxes, and in cases where for a particular year, the Revenue has challenged an order against the assessee, and the same issue arises again for a subsequent year.
8. Learned counsel for the appellant - revenue has raised a series of submissions to repudiate the preliminary objection raised on behalf of the respondent - assessee. Firstly, it is contended that the instructions issued by the Central Board of Direct Taxes, laying down limits (on the basis of tax effect) for preferring appeals, are not mandatory, but are merely directory. The instruction dated 4.11.1987 laying down monetary limits for regulating the filing of appeals, according to the learned counsel for the appellant, is subject to a number of exceptions, which are apparent from the instruction dated 4.11.1987, reproduced hereinabove. Secondly, it is the contention of the learned counsel for the appellant, that it is permissible for the Revenue ITA No. 171 of 2002 9 under Section 260-A of the 1961 Act, to prefer an appeal so as to agitate a "question of law" arising for determination in a decision rendered by the Tribunal, irrespective of the tax effect involved, and that, the aforesaid statutory right cannot be interfered with. In this behalf, it is the contention of the learned counsel for the appellant, that the admission of the present appeal by itself, by a Division Bench of this Court, on 29.10.2002, establishes that a substantial "question of law" arises for determination in the present appeal, and as such, the right of the Revenue to have an illegality corrected cannot be objected to. Thirdly, it is submitted that this Court had already pronounced a verdict on the instant preliminary issue in the case of Rani Paliwal Vs. Commissioner of Income Tax, (2004) 268 ITR 220, wherein relying on the judgements rendered by other High Courts, as well as, by the Apex Court, this Court concluded, that the High Court was obliged to decide an appeal preferred by the Revenue on merits, even though, the tax effect involved therein was lower than the limit prescribed in the relevant instruction issued by the Central Board of Direct Taxes, (requiring the Revenue not to prefer an appeal). It was pointed out, that besides the judgement of the jurisdictional High Court referred to above, there were judgements of other High Courts, as well as, of the Supreme Court, in favour of the proposition being canvassed by the learned counsel for the appellant - revenue. And fourthly, it is contended by the learned counsel for the appellant, that an objection of the nature raised by the respondent - assessee herein, should have been raised by the respondent - assessee before the Tribunal, and since, the respondent - assessee did not raise any such objection before the Tribunal, where the Revenue was in appeal against the same order passed by the Commissioner of Income Tax ITA No. 171 of 2002 10 (Appeals) dated 25.9.1991, despite the fact that the tax effect on the respondent - assessee was less than that prescribed under the prevalent instruction at that time, it is not open to the respondent - assessee to agitate this issue for the first time before this Court.
9. The submissions advanced by the learned counsel for the appellant - revenue were vehemently repudiated by the learned counsel for the respondent - assessee. The first contention advanced by the learned counsel for the respondent - assessee is that, instructions issued by the Central Board of Direct Taxes, from time to time stipulating monetary limits for filing of appeals, were granted statutory status with the insertion of Section 268-A into the Income Tax Act, 1961, by the Finance Act 2008 with retrospective effect from 1.4.1999. The second contention advanced by the learned counsel for the respondent - assessee is based on Instruction No.1979 dated 27.3.2000, issued by the Central Board of Direct Taxes, whereby other instructions issued by the Board, as well as, instruction No.1777 dated 4.11.1987, relied upon by the learned counsel for the appellant, came to be superseded. The instruction dated 27.3.2000, relied upon by the respondent - assessee, which was made available to us during the course of hearing, is being reproduced hereunder: -
"Reference is invited to the Board's Instruction No.1903 dated 28th October, 1992 (See Clarification FIVE) and Instruction No.1777 dated 4th November, 1987 (See Clarification Seven), wherein monetary limits of Rs.25,000/- for Departmental appeals (in income tax matters) before the Appellate Tribunal, Rs.50,000/- for filing reference to the High Court and Rs.1,50,000/- for filing appeal to the Supreme Court were laid down.
2. In supersession of the above instruction, it has now been ITA No. 171 of 2002 11 decided by the Board that appeals will be filed only in cases where the tax effect exceeds the revised monetary limits given hereunder: -
(i)Appeal before the Appellate Tribunal (in income tax matters) Rs.1,00,000/-
(ii) Appeal under Section 260-A/reference under Section 256(2) before the High Court Rs.2,00,000/-
(iii) Appeal in the Supreme Court Rs.5,00,000/- The monetary limits would apply with reference to each case, taken singly. In other words, in group cases, each case should individually satisfy the new monetary limits. The working out of monetary limits will, therefore, not take into consideration the cumulative revenue effect as envisaged in the Board's earlier instruction referred to above.
3. Adverse judgements relating to the following should be contested irrespective of revenue effect: -
(i) where revenue audit objection in the case has been accepted by the Department.
(ii) where the Board's order, notification, instruction or circular is the subject matter of an adverse order.
(iii) where prosecution proceedings are contemplated against the assessee.
(iv) where the constitutional validity of the provisions of the Act are under challenge.
4. Special leave petitions, under article 136 of the Constitution are filed before the Supreme Court only in consultation with the Ministry of Law. Therefore, where the Chief Commissioner, decides to contest an adverse judgement by filing special leave petition before the Supreme Court, they should send the proposal to the Board for further processing.
5. These instructions will apply to litigation under other direct taxes also, e.g. Wealth-tax, Gift-tax, Estate duty etc.
6. These monetary limits will not apply to writ matters.
7. This instruction will come into effect from April 1, 2000." ITA No. 171 of 2002 12 Based on the instruction dated 27.3.2000, it is the contention of the learned counsel for the respondent - assessee, that the tax effect of the instant appeal, in case of its success, would be less than Rs.2,00,000/- i.e. less than the prescribed limit for filing an appeal before this Court. It is also submitted that the instant case does not fall in any of the exceptions enumerated in the instruction itself, and as such, the filing of the instant appeal transgresses the mandate of the instruction dated 27.3.2000. Thirdly, learned counsel for the respondent - assessee placed reliance on the judgement rendered by this Court in Commissioner of Income-tax, Rohtak Vs. M/s. Haryana Telecom Ltd., Rohtak (ITA No.517 of 2007, decided on 16.9.2008), wherein it has been concluded, that appeals filed by the Revenue overlooking monetary limits prescribed in instructions issued by the Central Board of Direct Taxes, need not be decided on merits, and as such, the questions of law raised therein had been left open. It is also pointed out, that besides the judgement of the jurisdictional Court, referred to above, there were judgements of other High Courts, as well as, of the Supreme Court in favour of the proposition being canvassed by the respondent - assessee. The fourth contention by the learned counsel for the respondent - assessee is, that the respondent - assessee could not have objected to the filing of the appeal by the Revenue before the Income Tax Appellate Tribunal because Section 268-A of the Income Tax Act, 1961 had not been inserted into the 1961 Act when the said appeal was filed, heard and disposed of by the Income Tax Appellate Tribunal. All the same, it is contended that an independent plea is available to the respondent - assessee on the issue of maintainability of the instant appeal before this Court. According to the learned counsel, this plea cannot be denied to the ITA No. 171 of 2002 13 respondent - assessee, even if he had not pressed a plea of a similar nature available to the respondent - assessee before the Income Tax Appellate Tribunal.
10. In the sequence of facts noticed hereinabove, reference in the first instance, must be made to Section 119 of the 1961 Act, whereunder the Central Board of Direct Taxes was authorised to issue orders, instructions or directions to Income Tax Authorities for proper administration of the provisions of the 1961 Act. It is common case of the learned counsel for the rival parties, that the instructions relied upon by the learned counsel for the Revenue dated 4.11.1987, as also, the instruction relied upon by the learned counsel for the respondent - assessee dated 27.3.2000, were atleast in the first instance, issued under Section 119 of the 1961 Act. Section 119 of the 1961 Act, relied upon by the learned counsel for the parties, is being extracted hereunder: -
"Instructions to subordinate authorities.
119. (1) The Board may, from time to time, issue such orders, instructions and directions to other income-tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board :
Provided that no such orders, instructions or directions shall be issued
(a) so as to require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner; or
(b) so as to interfere with the discretion of the Commissioner (Appeals) in the exercise of his appellate functions. (2) Without prejudice to the generality of the foregoing power, ITA No. 171 of 2002 14
(a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the work of assessment and collection of revenue, issue, from time to time (whether by way of relaxation of any of the provisions of sections 115P, 115S, 115WD, 115WE, 115WF, 115WG, 115WH, 115WJ, 115WK, 139, 143, 144, 147, 148, 154, 155, 158BFA, sub-section (1A) of section 201, sections 210, 211, 234A, 234B, 234C, 271 and 273 or otherwise), general or special orders in respect of any class of incomes or fringe benefits or class of cases, setting forth directions or instructions (not being prejudicial to assessees) as to the guidelines, principles or procedures to be followed by other income-tax authorities in the work relating to assessment or collection of revenue or the initiation of proceedings for the imposition of penalties and any such order may, if the Board is of opinion that it is necessary in the public interest so to do, be published and circulated in the prescribed manner for general information;
(b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise any income-tax authority, not being a Commissioner (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law;
(c) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order for reasons to be specified therein, relax any requirement contained in any of the provisions of Chapter IV or Chapter VI-A, where the assessee has failed to comply with any requirement specified in such provision for claiming deduction thereunder, subject to the following conditions, namely:ITA No. 171 of 2002 15
(i) the default in complying with such requirement was due to circumstances beyond the control of the assessee; and
(ii) the assessee has complied with such requirement before the completion of assessment in relation to the previous year in which such deduction is claimed :
Provided that the Central Government shall cause every order issued under this clause to be laid before each House of Parliament."
Whilst it is the contention of the learned counsel for the appellant - revenue that proviso (a) under Section 119(1) of the 1961 Act was an embargo on the Central Board of Direct Taxes, restraining it from issuing any instruction to any of the Income Tax Authorities, how assessment in a particular case should be made, or the manner in which a particular assessment was to be determined. Likewise, proviso (b) under Section 119 (1) was an embargo restraining the Central Board of Direct Taxes, from interfering in the discretion vested with the Appellate Authority regarding the manner in which an appeal was to be disposed of. Accordingly, it was the vehement contention of the learned counsel for the respondent -
assessee based on the words "... and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board..." incorporated in sub-section (1) of Section 119 of the 1961 Act, were in the nature of a mandate, and that, the instructions issued by the Central Board of Direct Taxes, fixing monetary limits for the purpose of regulating the filing of appeals, were binding.
11. Even though, learned counsel for the rival parties acknowledged, that the instructions dated 4.11.1987 (relied upon by the appellant - revenue) and 27.3.2000 (relied upon by the respondent - ITA No. 171 of 2002 16 assessee) were issued under Section 119 of the 1961 Act, yet we are satisfied that it is no longer necessary to treat the instruction dated 27.3.2000, relied upon by the respondent - assessee, and which constitutes the foundation of the preliminary objection raised on its behalf, as having been issued under Section 119 of the 1961 Act, because under a deeming fiction of law, the aforesaid instruction is to be accepted as having been issued under Section 268-A(1) of the 1961 Act.
12. In so far as the second contention of the learned counsel for the appellant - revenue is concerned, it is essential to make a reference to Section 260-A of the 1961 Act. The aforesaid provision is being extracted hereunder: -
"Appeal to High Court.
260-A. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involves a substantial question of law.
(2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be
(a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner;
(b) Omitted.
(c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so ITA No. 171 of 2002 17 formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.
(5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit.
(6) The High Court may determine any issue which-
(a) has not been determined by the Appellate Tribunal; or
(b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1).
(7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section."
Based on sub-section (1) of Section 260-A of the 1961 Act, it is the contention of the learned counsel for the appellant - revenue, that the provisions of the Income Tax Act, 1961 authorise the Revenue to prefer an appeal to the High Court "from every order passed in appeal by the Appellate Tribunal", subject to the condition that the Revenue can satisfy the High Court, that the case involves a substantial question of law. This right, according to the learned counsel, is unbridled and unconditional. It is also the contention of the learned counsel for the appellant, that the very fact that the instant appeal was admitted for consideration by this Court, was sufficient to infer that a substantial question of law was involved in the ITA No. 171 of 2002 18 instant appeal. It is, accordingly, asserted that the appellant - revenue cannot be restrained by any instruction(s) issued by the Central Board of Direct Taxes, from filing an appeal wherein a substantial question of law arises for consideration. In this behalf, the Court's attention has been invited to the fact, that the instant appeal was admitted for regular hearing by a Division Bench of this Court on 29.10.2002. Another submission of the learned counsel for the appellant, also based on Section 260-A of the 1961 Act, emerges from sub-section (4), which mandates, that an appeal shall be heard only on the question formulated by the Court, and that, it is open to the assessee to argue that "...the case does not involve such question...". It is, therefore, the submission of the learned counsel for the appellant, that it is not even open to the respondent - assessee to raise the instant preliminary objection, as the only right vested in the assessee is to oppose the appeal on merits on the questions formulated by the Court. Relying on sub-section (5) of Section 260-A of the 1961 Act, it is also the contention of the learned counsel for the appellant, that it is imperative for this Court to deliver a judgement on all the questions of law formulated, and as such, it is not open to this Court to excuse itself from rendering a decision on merits. Lastly, reliance was placed on sub-section (7) of Section 260-A of the 1961 Act in order to assert, that the provisions of the Code of Civil Procedure relating to appeals to High Courts, were applicable mutatis-mutandis to appeals preferred by the Revenue against orders passed by the Income Tax Appellate Tribunal. In this behalf, the contention of the learned counsel for the appellant - revenue was, that since there was a bar imposed on the Revenue based on tax effect (laid down in instruction issued by the Central Board of Direct Taxes) from preferring an appeal, the respondent - assessee ITA No. 171 of 2002 19 having not raised a plea based thereon before the Tribunal, was barred from doing so before this Court in view of the mandate of Order II Rule 2 of the Code of Civil Procedure.
13. As against the last submission advanced by the learned counsel for the appellant on the basis of the provisions of the Code of Civil Procedure, learned counsel for the respondent - assessee has placed reliance on clause (a) of sub-section (6) of Section 260-A of the 1961 Act. According to the learned counsel, the aforesaid provision authorizes this Court to determine any issue, including an issue which "has not been determined by the Appellate Tribunal". It is, therefore, the vehement contention of the learned counsel for the respondent - assessee, that the preliminary objection raised by the respondent - assessee based on Section 268-A of the 1961 Act, is very much maintainable, and that, the same cannot be shut out by the appellant - revenue. In this behalf, learned counsel for the respondent - assessee has raised two further pleas, namely, that Section 268-A of the 1961 Act was not available on the statute book when the appeal was decided by the Income Tax Appellate Tribunal, and that, the instant preliminary objection constitutes a pure question of law which can be raised at any time.
14. Having given our thoughtful consideration to the issue advanced by the learned counsel for the rival parties, as has been noticed in the foregoing paragraph, we are satisfied that the maintainability of the appeal filed by the Revenue before the Income Tax Appellate Tribunal, was an issue entirely different from the maintainability of the appeal at the hands of the Revenue before this Court. Separate and distinct parameters are laid in the instructions for filing appeals before the Income Tax Appellate ITA No. 171 of 2002 20 Tribunal, as against the ones prescribed, for approaching this Court in appeal under Section 260-A of the 1961 Act. As such, we are of the view that it makes no difference whatsoever to the issue canvassed at the hands of the respondent - assessee before this Court, whether or not, such an objection was raised when the Revenue preferred an appeal before the Income Tax Appellate Tribunal. We are also of the view, that the submissions advanced by the learned counsel for the respondent - assessee, as have been noticed in the foregoing paragraph, also deserve to be accepted. As such, we hereby endorse both the submissions advanced at the hands of the learned counsel for the respondent - assessee, as have been noticed hereinabove. Accordingly, we find no merit in the plea raised by the learned counsel for the appellant - revenue under Section 260-A(7) of the 1961 Act, read with Order II Rule 2 of the Code of Civil Procedure.
15. Learned counsel for the rival parties have cited before us judgements rendered by High Courts, as also, by the Supreme Court to determine the issue of maintainability of the instant appeal. However, none of the judgements relied upon by the learned counsel for the rival parties (which will be dealt with in a later part of this order) can be considered as an exposition on Section 268-A of the 1961 Act, or the effect thereof. It is, therefore, that we are satisfied that the instant question posed by the learned counsel for the respondent - assessee cannot be disposed of merely on the basis of the judgements relied upon by the learned counsel for the rival parties. Despite the aforesaid factual/legal position, we shall deal with the judgements relied upon by the learned counsel for the rival parties, and determine the effect thereof, so as to be able to analyse the direction of the march of judicial opinion on the issue in hand.
ITA No. 171 of 2002 21
16. Learned counsel for the appellant invited this Court's attention, first of all, to the decision rendered by the Rajasthan High Court in Commissioner of Income Tax Vs. Rajasthan Patrika Ltd. (2002)258 ITR
300. From the aforesaid judgement, learned counsel for the appellant invited the pointed attention of this Court to the following observations on the issue in hand: -
"Mr. Ranka further submits that in any case the tax effect is meagre, i.e., Rs. 30,000, therefore, the appeal is not maintainable. There is a circular of the Board that when the tax effect is not more than Rs. 50,000, no appeal should be filed. He also brought to our notice a latest decision of the apex court in the case of Tamil Nadu Industrial Investment Corporation Ltd. v. CIT (1999) 237 ITR 889, wherein their Lordships have taken the view that in fact the circular clarifies the way in which these amounts are to be treated under the accounting practice followed by the lender. The circular, therefore, cannot be treated as contrary to section 145 of the Income-tax Act or illegal in any form. It is meant for a uniform administration of law by all the income-tax authorities in a specific situation and is, therefore, validly issued under section 119 of the Income-tax Act. As such the circular would be binding on the Department. Mr. Mathur, learned counsel for the Revenue, also brought to our notice the decision of the apex court in the case of CIT v. Hero Cycles P. Ltd. (1997) 228 ITR 463, wherein their Lordships have taken the view that the circulars can bind the Income-tax Officer but will not bind the appellate authority or the Tribunal or the court or even the assessee. It is true that in the case of the Supreme Court, which has been referred to by Mr. Ranka, learned counsel for the assessee, their Lordships held that a circular has binding effect, but the issue before the Supreme Court relates to the circular, which interprets the statute for the uniformity of the decisions in the ITA No. 171 of 2002 22 Department. But the circular before us is as to whether the appeal is to be filed or not ? These are administratives instructions and in spite of these administrative instructions if the department prefers to file an appeal or make a reference to this court, in our view on such administrative instructions the appeal of the Department should not be dismissed or the reference should not be rejected. We do not find any infirmity in disposing of the appeal on the merits."
Reliance was then placed on the decision rendered by the Madras High Court in Commissioner of Income Tax Vs. P.S.T.S Thiruvirathnam and sons, (2003)261 ITR 406, wherefrom learned counsel for the appellant drew our attention to the following observations made therein: -
"Counsel for the assessee, however, submitted that the question should not be answered by us as according to him under the circular issued by the Central Board of Direct Taxes if the amount of tax involved is less than Rs. 30,000, the Department is not to pursue the matters in the higher forum. We have perused the circular of November 4, 1987. It is not an unqualified embargo on the Revenue proceeding with the matter where the amount of tax in issue is Rs. 30,000 or less. Several exceptions are set out in that circular. If the assessee wanted the benefit of that circular it should have put the Revenue on notice when the Revenue applied for having the question referred so that the Revenue could gather the relevant material, if any, to show that the matter was within the excepted category.
After the question has been referred to us, we cannot now permit the assessee to raise this objection."
Reference was also made to the decision rendered by this Court in Rani Paliwal Vs. Commissioner of Income Tax, (2004) 268 ITR 220. Learned counsel for the appellant invited the Court's attention to one of the questions ITA No. 171 of 2002 23 framed for adjudication in Rani Paliwal's case (supra) as under: -
"(i) Whether the Tribunal, on the facts and in the circumstances of the case, erred in law in not dismissing the appeals of the Department/Revenue in view of the Board's Circular No. F. No. 279/126/98-ITJ, dated March 27, 2000 ?"
The aforesaid question was answered by this Court as under:-
"As regards question No. (i), it is urged that in view of the Board's Circular No. F-279/126/98-ITJ, dated March 27, 2000, the appeals filed by the Department were not maintainable because the tax effect did not exceed Rs. 1,00,000 in each assessment year and, therefore, according to the circular, the Department could not prefer an appeal. From the perusal of the order of the Tribunal, it is clear that no such plea was raised before the Tribunal and, therefore, we are not allowing the assessee to raise this plea for the first time before us. In any case, the Board's circular is only an instruction issued to the income-tax authorities not to file appeals where the tax effect is less than Rs. 1,00,000. The Tribunal is not bound by any such instruction and once the Department files an appeal, the Tribunal was bound to decide the same on the merits. This question, in our opinion, is not a question of law. "
Reference was also made to the decision rendered by the Allahabad High Court in Jugal Kishore Arora Vs. Deputy Commissioner of Income Tax, (2004) 269 ITR 133, wherein the Allahabad High Court, inter-alia, held as under:-
"As regards the contention that the appeal should not have been entertained in view of the direction of the Central Board of Direct Taxes dated March 27, 2000, we are of the opinion that the instructions of the Central Board of Direct Taxes regarding filing of appeals are only internal matters of the Department, and the assessee cannot object to filing of an appeal despite such an instruction. The appeal is clearly maintainable before ITA No. 171 of 2002 24 the Tribunal on behalf of the Department under section 253(2) of the Income-tax Act, and this right to file an appeal is a statutory right and cannot be taken away or prohibited by executive instructions. Moreover, the instructions itself state that an appeal can be filed if the matter is of a recurring nature. Thus there is no force in these appeals and they are dismissed."
Learned counsel for the appellant also invited this Court's attention to a judgement rendered by this Court in Commissioner of Income Tax Vs. Abhishek Industries Ltd., (2006) 286 ITR 1, wherein on the issue of maintainability, it was observed as under:-
"As far as the issue as to whether the circular prescribing limits for filing appeals before the courts or the Tribunals is concerned, different courts have taken different views as to whether in case an appeal is filed, which involves tax effect less than the amount prescribed in the circular for filing the appeal, still the court/ Tribunal is bound to reject the same as such or to dispose of it on merits.
In CIT v. Camco Colour Co. (2002) 254 ITR 565, the Bombay High Court refused to entertain an appeal which was filed having tax effect less than what was prescribed in the instructions for filing appeal in the High Court. The same view was reiterated by the court in CIT v. Pithwa Engineering Works (2005) 276 ITR 519 (Bom).
Taking a contrary view, this court in Rani Paliwal v. CIT (2004) 268 ITR 220, wherein an appeal filed by the assessee, raising the issue as to whether the Tribunal erred in law in not dismissing the appeal of the Revenue keeping in view the Board's circular dated March 27, 2000, prescribing limits for filing appeals before the Tribunal, was dismissed holding that the Tribunal is not bound by any such instructions and once the appeal is filed, the Tribunal was bound to decide the same on the merits.
A similar view has been expressed by the Rajasthan High Court ITA No. 171 of 2002 25 in CIT v. Rajasthan Patrika Ltd. (2002) 258 ITR 300, wherein it was held that the circulars providing for quantum of tax which is fixed for filing appeals before various forums are administrative in nature. If the Department prefers to file an appeal or make a reference to the court, the same should not be dismissed by relying upon such administrative instructions. Accordingly, the appeal filed by the Revenue was heard and decided on the merits.
In CIT v. Blaze Advertising (Delhi) P. Ltd. (2002) 255 ITR 460, the Delhi High Court held that the circular issued by the Board does not, in any way, prohibit or curtail the power of the Tribunal for making a reference and in any case, the statutory right of the Tribunal to refer a case to the High Court for its opinion under section 256(1) of the Act cannot be taken away by the Board by issuing a circular or otherwise.
In CIT v. Hero Cycles P. Ltd. (1997) 228 ITR 463, the Hon'ble Supreme Court held that the circular issued by the Central Board of Direct Taxes (for short, "the Board") can bind the Income-tax Officer, but will not bind the appellate authority or the Tribunal or the court or even the assessee.
Accordingly, it is held that there is no merit in the plea of the assessee to the effect that the present appeal filed by the Revenue should be dismissed. Rather, we hold that the circulars issued by the Board fixing the quantum of tax for filing appeals before various forums are not binding on the Tribunal or the courts and once the matter is before the court or the Tribunal, the same has to be decided on its own merits."
17. As against the aforesaid submissions advanced by the learned counsel for the appellant, learned counsel for the respondent - assessee has relied upon various judgements rendered by different High Courts in the country. First of all, reliance was placed on the decision rendered in Commissioner of Income Tax Vs. Smt. Nayana P. Dedhia (2004) 270 ITR ITA No. 171 of 2002 26 572, wherein the Andhra Pardesh High Court, relying on the decision rendered by the Supreme Court in UCO Bank Vs. Commissioner of Income Tax (1999) 237 ITR 889, held as under:-
".....The circular had admittedly been issued by the Central Board of Direct Taxes under section 119(1) of the Act. What is the scope of such circulars should not detain us because of the authoritative pronouncement of the Hon'ble Supreme Court reported in UCO Bank v. CIT (1999) 237 ITR 889. The Supreme Court noted :
"What is the status of these circulars ? Section 119(1) of the Income-tax Act, 1961, provides that, 'the Central Board of Direct Taxes may, from time to time, issue such orders, instructions and directions to other income-tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board. Provided that no such orders, instructions or directions shall be issued (a) so as to require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner ; or (b) so as to interfere with the discretion of the Appellate Assistant Commissioner in the exercise of his appellate functions'. Under sub-section (2) of section 119, without prejudice to the generality of the Board's power set out in sub-section (1), a specific power is given to the Board for the purpose of proper and efficient management of the work of assessment and collection of revenue to issue from time to time general or special orders in respect of any class of incomes or class of cases, setting forth directions or instructions, not being prejudicial to assessees, as to the guidelines, principles or procedures to be followed in the work relating to assessment. Such instructions may be by way of relaxation of any of the provisions of the sections specified there or otherwise. The ITA No. 171 of 2002 27 Board thus has power, inter alia, to tone down the rigour of the law and ensure a fair enforcement of its provisions, by issuing circulars in exercise of its statutory powers under section 119 of the Income-tax Act which are binding on the authorities in the administration of the Act. Under section 119(2)(a), however, the circulars as contemplated therein cannot be adverse to the assessee. Thus, the authority which wields the power for its own advantage under the Act is given the right to forgo the advantage when required to wield it in a manner it considers just by relaxing the rigour of the law or in other permissible manners as laid down in section 119. The power is given for the purpose of just, proper and efficient management of the work of assessment and in public interest. It is a beneficial power given to the Board for proper administration of fiscal law so that undue hardship may not be caused to the assessee and the fiscal laws may be correctly applied. Hard cases which can be properly categorised as belonging to a class, can thus be given the benefit of relaxation of law by issuing circulars binding on the taxing authorities."
The Supreme Court, in this judgment, which is clear from the paragraph quoted above, held in no uncertain terms that :
(a) the authorities responsible for administration of the Act shall observe and follow any such orders, instructions and directions of the Board ;
(b) such instructions can be by way of relaxation of any of the provisions of the section specified therein or otherwise ;
(c) the Board has power, inter alia, to tone down the rigour of the law and ensure a fair enforcement of its provisions by issuing circulars in exercise of its statutory powers under section 119 of the Income-tax Act ;
(d) the circulars can be adverse to the Income-tax Department, but still, are binding on the authorities of the Income-tax Department, but cannot be binding on the assessee, if they are adverse to the assessee ;ITA No. 171 of 2002 28
(e) the authority, which wields the power for its own advantage under the Act, has a right to forgo the advantage when required to wield it in a manner it considers just by relaxing the rigour of the law by issuing instructions in terms of section 119 of the Act.
This judgment leaves no room to doubt that the Tribunal was right in holding that the income-tax authorities could have not selected the case for detailed scrutiny in view of the circular issued by the Board."
Based on the judgement rendered by the Supreme Court in UCO Bank's case (supra) and the judgement rendered by the Andhra Pardesh High Court in Smt. Nayana P. Dedhia's case (supra), it is the vehement contention of the learned counsel for the respondent - assessee, that instructions issued by the Central Board of Direct Taxes under Section 119(1) of the 1961 Act, have binding effect on the Revenue, and have to be followed by the officers of the Revenue Department. On the pointed issue, learned counsel for the respondent - assessee also relied upon the decision rendered by the Madras High Court in Commissioner of Income Tax Vs. Ideal Garden Complex P. Limited, (2008) 307 ITR 176, wherein the Court opined as under:-
"Thus, following the long line of case law reported in CIT v. Rajasthan Patrika Limited (2002) 258 ITR 300 (Raj) and CIT v. P. S. T. S. Thiruvirathnam (2003) 261 ITR 406 (Mad) to which one of us is a party (K. Raviraja Pandian J.), CIT v. Digvijay (2007) 292 ITR 314 (MP) and CIT v. Camco Colour Co. (2002) 254 ITR 565 (Bom), this court held that the uniform line of judicial opinion is that if the tax effect is less than what is stated in the circular, the Revenue need not agitate the issue on appeal and that the circular is binding on the Revenue."
Likewise, reference was made to the decision rendered by the Allahabad High Court in Commissioner of Income Tax Vs. Smt. Prakashwati, (1994) ITA No. 171 of 2002 29 210 ITR 567, wherein the Allahabad High Court recorded the following concluding remarks:-
"There is another aspect of the matter. We have seen earlier that in these two cases the tax effect involved is very nominal, that is, Rs.80 for the assessment year 1984-85 and Rs. 475 for the assessment year 1985-86. In CWT v. Executors of Late D. T. Udeshi (1991) 189 ITR 319, a Division Bench of the Bombay High Court rejected an application for reference where the tax effect was less than Rs. 8,500 in a year saying that no reference application could be made in view of the policy decision of the Central Board of Direct Taxes not to file references in the cases where the tax effect was less than Rs. 30,000 per year, contained in its Circular F. No. 279/26 of 1983-ITJ, dated July 12, 1984, and Circular F. No. 319/11 of 1987-WT dated July 14, 1987. For that reason also, these two applications are liable to be rejected."
Reference was also made to the decision rendered by the Delhi High Court in Commissioner of Income Tax Vs. Income Tax Appellate Tribunal and another, (1998) 232 ITR 207, wherein on the same issue, the Delhi High Court held as under:-
"It was also submitted that though the quantum of the revenue involved for the year in question, i.e., the assessment year 1985-86, is only Rs. 19,363, the appeal decided against the Revenue has a recurring effect on revenue for the succeeding years and, therefore, the instructions would not apply. It was submitted by learned counsel for the Department, developing his argument further, that in the event of the question being answered in favour of the Revenue, the cumulative revenue effect for all the years up to the year for which returns have been filed by the assessee would exceed the monetary limit laid down in the Central Board of Direct Taxes instructions. Learned counsel for the assessee has disputed the factual ITA No. 171 of 2002 30 correctness of this statement. The fact remains that the desirability of making a reference has not been examined by the Tribunal from the abovesaid angle.
Negligible amounts of revenue is one of the relevant considerations for refusing the reference. (see CIT v. Imperial Surgical Co. (P.) Ltd. (1991) 192 ITR 646 ; (1992) 63 Taxman 508 (SC) ; CIT v. Smt. Prakashwati (1994) 210 ITR 567 (All) ; CWT v. Girdhari Lal Saraf (1991) 190 ITR 264 (Raj) ; and CWT v. Executors of Late D. T. Udeshi (1991) 189 ITR 319 (Bom)).
The Central Board of Direct Taxes instructions are binding on the Department. If the case at hand is covered by a policy laid down by the Central Board of Direct Taxes in that case no fault can be found with the order of the Tribunal refusing to state the case and there is no reason why the High Court should interfere with such discretion of the Tribunal as has been exercised consistently with the uniform policy laid down by the Central Board of Direct Taxes which binds all the subordinate authorities of the Income-tax Department. The High Court would not ordinarily encourage breach of policy decisions and the Departmental instructions which have a public purpose behind them. Valuable time of High Courts and highly placed Tribunals is not to be wasted on petty matters. However, if the case be not covered by the said instructions or be covered by one of the exceptions carved out in the instructions themselves in that event the denial of reference would be failure to exercise a jurisdiction statutorily vested in the Tribunal. Inasmuch as the Tribunal has not examined the case from that point of view and adequate material is not available before us enabling formation of an opinion either way, we deem the present one to be an appropriate case, which should be sent back to the Tribunal for consideration afresh."
Reference was also made to the decision of the Bombay High Court in Commissioner of Income Tax Vs. Camco Colour Co., (2002) 254 ITR 565, ITA No. 171 of 2002 31 which is as under:-
"The issue in the present case being one of some potential general significance in relation to the policy decision taken by the Board not to raise questions of law where the effect is less than the amount prescribed in the instructions issued by the Central Board of Direct Taxes with a view to reduce litigations before the High Courts and the Supreme Court, we propose to dispose of this appeal on this short contention canvassed by learned counsel for the respondent without examining the merits of the question of law sought to be raised in this appeal. Learned counsel for the respondent also relied upon the decision in Navnit Lal C. Javeri v. K. K. Sen, AAC of I. T. (1965) 56 ITR 198 (SC) ; Ellerman Lines Ltd. v. CIT (1971) 82 ITR 913 (SC) and K. P. Varghese v. ITO (1981)131 ITR 597 (SC) to contend that the circular issued by the Central Board of Direct Taxes is binding on all the officers and Commissioners and in terms of which he sought to examine the question of necessity of filing of the present appeal.
In appears that despite the above circular, the Revenue has chosen to file the present appeal knowing fully well that the corridors of the courts are flooded with pending litigations. The presentation of this appeal is quite contrary to the instruction issued in the circular which is binding on the Revenue. In the above view of the matter, considering the instructions issued by the Central Board of Direct Taxes, we are satisfied that the Board has taken a policy decision not to file appeal in a type of case in hand and the same is binding on the Revenue (appellant herein). In the result, we dismiss this appeal on this count in limine with no order as to costs."
Our attention was also invited to the decision rendered by the Bombay High Court in Commissioner of Income Tax Vs. Zoeb Y. Topiwala, (2006) 284 ITR 329, wherein the Bombay High Court dismissed the appeal preferred by the Revenue by imposing costs on the Revenue, as the Revenue had ITA No. 171 of 2002 32 ignored the instructions issued by the Central Board of Direct Taxes, prescribing monetary limits for the purpose of regulating the filing of appeals. Reference was also made to the decision rendered by the Madras High Court in Commissioner of Income Tax Vs. Associated Electrical Agencies, (2007) 295 ITR 496, wherein the Court held as under:-
"The factual issue is undisputed that the tax effect involved in this appeal is only few thousand rupees. The above referred judgment was rendered in a reference case and the question of law therein was referred for the decision of this court. This court rejected the contention of the respondent therein by saying that the circular dated November 4, 1987, was not an unqualified embargo on the Revenue proceeding with the matter in appeal where the amount of tax in issue was Rs. 30,000 or less. Several exceptions were set out in that circular. If the assessee wanted the benefit of the circular, it should have put the Revenue on notice when the Revenue applied for having the question referred so that the Revenue could have gathered relevant material, if any, to show the matter was within the expected category. Incidentally, one of us (K. Raviraja Pandian J.) was also a party to the said judgment. The said judgment has not denied the benefit of the circular to the assessee, but only cautioned the assessee that if the assessee put on notice the Revenue, the Revenue would have gathered material and satisfied whether it is a fit case for filing the appeal with reference to the exception clause contained therein. Hence, the judgment cannot be regarded as one which decided the scope and binding nature of the circular and decided in favour of the Revenue.
In the case of CIT v. Rajasthan Patrika Ltd. reported in (2002) 258 ITR 300, the Rajasthan High Court categorised the circular as one of administrative instruction and held that the administrative instruction cannot prevail over the statutory provision.ITA No. 171 of 2002 33
In the case of Rani Paliwal v. CIT reported in (2004) 268 ITR 220, the Punjab and Haryana High Court has held that from the perusal of the order of the Tribunal, it was clear that no plea was raised before the Tribunal that appeal was not entertainable because of the tax effect was less than Rs. 1 lakh in each of the assessment years and therefore the High Court did not allow the assessee to raise the plea for the first time before the High Court and further held that the circular was not binding on the Tribunal and further held that such a plea was not a question of law.
The circular referred to in the abovesaid judgment has been subsequently revised in Circular No. F/279. It is not in dispute in this case that the tax effect is only a few thousand rupees and not exceeded the monetary limit of Rs. 2 lakhs prescribed in the abovesaid circular for filing appeal before the High Court. The exceptions stated in the circular for contesting the case irrespective of the revenue effect were :
(i) Where Revenue audit objection in the case has been accepted by the Department.
(ii) Where the Board's order, notification, instruction or circular is the subject-matter of an adverse order.
(iii) Where prosecution proceedings are contemplated against the assessee.
(iv) Where the constitutional validity of the provisions of the Act are under challenge.
and the monetary limit would not apply to writ matters. The circular would come into effect from April 1, 2000.
We are of the considered view that none of the exceptions stated in the circular are applicable to the facts of the present case. The circular was stated to be issued by invoking the statutory power under section 119 of the Income-tax Act. The appeal is filed under section 260-A of the Income tax Act. It is well-settled principle of law that each and every provision of a statute has to be given the same importance. One provision ITA No. 171 of 2002 34 cannot be elevated to a higher pedestal than the other provision, of course, unless or otherwise specifically stated either in the scheme, the Act or in the provision itself that a particular provision is subjected to or qualified by any other provision or the provision can be given effect to notwithstanding anything contained in any other provisions by assigning overriding effect. Hence, the contention that notwithstanding the circular, which was issued under section 119 of the Income-tax Act, the appeal could be filed by the Revenue under section 260-A has to be rejected for the reason that if the contention is accepted, one of the sections would become virtually otiose and that cannot be the intention of the law makers. Hence, the above judgments cannot be taken in aid for non-suiting the respondent/assessee from taking shelter under the Government order.
In this case, not only the tax effect involved is nearly Rs. 5,000, but also the other qualification prescribed in the circular were also not available or in existence to carve out the case to bring outside the purview of the circular. Even de hors the circular, if the facts are considered, the assessee is entitled to claim the benefit for the next assessment year if the same was negatived for the assessment year in question. Further, the point in issue is whether the bonus as claimed by the respondent has been paid within October 31, 1991, or subsequent to that date, can no stretch of imagination be considered as a question of law rather than substantial question of law as provided under section 260-A of the Income-tax Act."
Reliance was then placed on a decision rendered by the Madras High Court in Commissioner of Income Tax Vs. M. Pachamuthu and another, (2007) 1995 ITR 502, wherein it was held as under:-
"It is not argued by counsel for the Revenue that the circular issued is not binding on the Revenue. However, he relied on the decision reported in CIT v. Abhishek Industries Ltd. (2006) ITA No. 171 of 2002 35 286 ITR 1 (P&H). The issue involved in these appeals has been considered by us in the order made in T. C. (A) No. 222 of 2004 (CIT v. Associated Electrical Agencies (2007) 295 ITR 496 (Mad)) dated August 16, 2007, and held against the Revenue in the sense that if the tax effect is less than as provided in the Central Board of Direct Taxes circular in F. No. 279/126/98-ITJ and if the case has not come within the exceptions made in the circular, the appeals filed by the Revenue in the light of the circular cannot be legally maintainable."
Although, learned counsel for the respondent also placed reliance on the decision rendered by this Court in Commissioner of Income Tax, Rohtak Vs. M/s. Haryana Telecom Ltd., Rohtak (ITA No.517 of 2007, decided on 16.9.2008) yet we do not desire to make a reference to the same, as the aforesaid appeal was disposed of without recording any reasons, and as such, cannot be referred to as a precedent, on the subject under consideration.
18. As already noticed hereinabove, in none of the judgements relied upon by the learned counsel for the rival parties, reference was made to Section 268-A of the 1961 Act. Judicial leaning despite non-reference to Section 268-A of the 1961 Act, is seen to be tilting in favour of giving effect to the instructions issued by the Central Board of Direct Taxes wherein monetary limits were prescribed, by restraining the Revenue from filing appeals, except when the tax effect would be higher than the prescribed limits. At the juncture under reference i.e. prior to the introduction of Section 268-A in the 1961 Act, the object of issuing such instruction was apparent and obvious, namely, alleviating unnecessary hardship to assesses. Possibly even to avoid unnecessary financial hardship ITA No. 171 of 2002 36 and long drawn appellate proceedings even for the Revenue, where likely gains were negligible. There can be no doubt, that the process of litigation is a financial hardship. An individual assessee may have to suffer the hardship far beyond the effect thereof on the Revenue. The Revenue also incurs financial expense, which when taken to its logical effect, falls on the shoulders of the general public as the same is incurred out of money collect from innocent tax-payers. Filing of an appeal should be a fruitful exercise. An appeal should not be filed only to press a proposition of law, unless it results in an adverse inference against the Revenue. The veracity of filing an appeal must be gauged with reference to the tax, which is likely to be recovered by the Revenue, on the success thereof. If the proportion of the aforesaid recovery of tax as against the expenses incurred in pursuing the appellate remedy is negligible, and there is no other adverse effect, the inference should be, that the remedy of appeal would be an exercise in futility. In such an eventuality, an appeal should not be filed.
19. Independently of the issue in hand, it would be pertinent to notice, that in terms of the law laid down by High Courts, as well as, the Supreme Court, it was imperative for the Revenue to avail of the appellate remedy, lest it be considered that the Revenue had conceded an important question of law, in favour of a particular assessee. The Revenue could not take the risk of suffering a recurring loss of tax-recovery, even though, the tax effect was negligible. In this behalf, reference may be made to the decisions rendered by the Supreme Court in Commissioner of Income Tax, Central, Kanpur Vs. J.K. Charitable Trust, (1992) 196 ITR 31, Berger Paints India Ltd. Vs. Commissioner of Income Tax, (2004) 266 ITR 99 and C.K. Gangadharan Vs. Commissioner of Income Tax, (2008) 304 ITR 61. ITA No. 171 of 2002 37 In all these judgements, the Apex Court concluded, inter-alia, that in case an assessee succeeds on an issue, which is not assailed by the Revenue (by availing of the remedy of appeal) the Revenue is precluded from raising the same issue during a subsequent assessment. Accordingly, even where tax recoveries were negligible, the Revenue is known to have pursued its remedy by preferring an appeal, so as to avoid any such adverse conclusion.
20. Aimed at alleviating and remedying the aforesaid predicament of the Revenue, the Finance Act 2008 inserted Section 268-A into the 1961 Act. This conclusion of ours is clearly derivable from the objects recorded in the Bill introduced in the Parliament for the promulgation of the Finance Act 2008. An extract of the objects recorded in the Bill pertaining to the insertion of Section 268-A into the 1961 Act, is reproduced hereunder:-
"The proposed section seeks to provide that 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 Chapter XX.
It is further proposed to provide that 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.
It is also proposed to provide that notwithstanding that no appeal or application for reference has been filed by an income- tax authority pursuant to the orders, instructions or directions ITA No. 171 of 2002 38 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 by not filing an appeal or application for reference in any case.
It is also proposed to provide that the Appellate Tribunal or Court, hearing any appeal or reference had filed under this Chapter, shall have regard to the orders, instructions or directions issued by the Board from time to time either before or after the insertion of this section and the circumstances in which such appeal or application for reference was filed or was not filed in any case; and accordingly the Tribunal or Court shall decide the appeal or the reference on the merits of the issue under consideration.
It is also proposed to provide that every order or instruction or direction which has been issued by the Board fixing monetary limits for filing an appeal or application for reference shall be deemed to have been issued under sub-section (1) and the provisions of sub-sections (2), (3) and (4) shall apply accordingly.
This amendment will take effect retrospectively from Ist April, 1999."
It is apparent from the objects for the insertion of Section 268-A into the 1961 Act, that all technical objections available to an assessee against whom the Revenue chose not to file an appeal, came to be rendered nugatory, in cases where the Revenue had not filed an appeal on account of the negligible tax effect involved.
21. Before we endeavour upon any further deliberation, it is important for us to examine and interpret Section 268-A of the 1961 Act. Section 268-A aforementioned, is being reproduced hereunder:-
"Filing of appeal or application for reference by income-tax ITA No. 171 of 2002 39 authority.
268-A. (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 by not filing an appeal or application for reference in any case. (4) The Appellate Tribunal or Court, hearing such appeal or reference, shall have regard to the orders, instructions or directions issued under sub-section (1) and the circumstances under which such appeal or application for reference was filed or not filed in respect of any case.
(5) Every order, instruction or direction which has been issued by the Board fixing monetary limits for filing an appeal or application for reference shall be deemed to have been issued under sub-section (1) and the provisions of sub-sections (2), (3) and (4) shall apply accordingly."
A perusal of sub-Section (1) of Section 268-A of the 1961 Act reveals, that the Central Board of Direct Taxes has been authorized under the 1961 Act, ITA No. 171 of 2002 40 to issue orders, instructions or directions to Income Tax Authorities, laying down monetary limits for purposes of filing appeals. As a consequence of the insertion of the instant provision in the Income Tax Act, 1961, orders, instructions or directions issued on the subject of monetary limits for filing appeals must be deemed to have attained statutory status. There can be no dispute that every requirement under the mandate of law, leads to a consequential statutory obligation to comply with the said requirement. Sub-Section (5) of Section 268-A of the 1961 Act is also relevant for the determination of the issue in hand, inasmuch as, it mandates that instructions, orders or directions, even issued earlier i.e. prior to the insertion of Section 268-A in the 1961 Act, by the Finance Act 2008, fixing monetary limits for filing of appeals, shall be deemed to have been issued under sub-Section (1) of Section 268-A of the 1961 Act. This conclusion emerges from the fact, that Section 268-A of the 1961 Act was introduced with retrospective effect from 1.4.1999. Accordingly, instructions, orders or directions issued even prior to the insertion of Section 268-A of the 1961 Act, must be deemed to have statutory status, if they were issued after 1.4.1999. On the basis of the judgements, which were prevalent prior to the insertion of Section 268-A into the 1961 Act, it may not have been advisable for the appellant - revenue not to prefer an appeal, since in terms of the decisions rendered by various High Courts, as well as, by the Supreme Court, the Revenue would be bound, as against the concerned assessees, on determinations in favour of the assessee, which had remained unassailed. In this behalf, reference may be made to the decisions rendered by the Supreme Court in Income Tax, Central, Kanpur Vs. J.K. Charitable Trust, (1992) 196 ITR 31, Berger Paints India Ltd. Vs. Commissioner of ITA No. 171 of 2002 41 Income Tax, (2004) 266 ITR 99 and C.K. Gangadharan Vs. Commissioner of Income Tax, (2008) 304 ITR 61, wherein it was held, that the decision of the Department in favour of an assessee will be deemed to have been accepted by the Revenue, if the Revenue does not assail the same by filing an appeal. Thereafter, the Revenue was barred from raising the same issue against the assessee. This position has now been altered, in as much as, sub-section (3) of Section 268-A of the 1961 Act, leaves the remedy open in the hands of the Revenue, even though, an appeal had not been filed by the Revenue on account of the monetary limits prescribed by the Central Board of Direct Taxes. This emerges from a plain reading of Section 268-A(3) of the 1961 Act. It is this aspect of the matter, which had constrained the Revenue to prefer appeals, in cases where a substantial question of law had arisen for adjudication as against the concerned assessee, even with limited tax effect. All issues prejudicial to the Revenue, in cases where an appeal was not filed by the Revenue, must therefore, be deemed to have been done away with, after the inclusion of Section 268-A into the 1961 Act.
22. Incidentally, all the instructions relied upon by the learned counsel for the respondent - assessee, were issued after 1.4.1999, and as such, the instructions relied upon by the respondent - assessee will be deemed to have been issued under Section 268-A of the 1961 Act. All the instructions relied upon by the learned counsel for the respondent - assessee must be deemed to have statutory recognition. The action of the Revenue in abstaining from filing an appeal under the instructions relied upon by the respondent - assessee will not be subjected to any adverse inference against the Revenue so as to preclude it from raising the issue involved therein against the assessee.
ITA No. 171 of 2002 42
23. In the background of the conclusions drawn by us hereinabove, we would endeavour to deal with the submissions advanced by the learned counsel for the appellant - revenue based on Section 260-A of the 1961 Act. There can be no doubt, whatsoever, that after the introduction of Section 268-A into the 1961 Act, Section 260-A of the 1961 Act, cannot be read independently. Sections 260-A and 268-A of the 1961 Act will now have to be interpreted by reading the two harmoniously, so as to give effect to the aforesaid two provisions keeping in mind the objects and the reasons on the basis whereof Section 268-A was inserted into the 1961 Act. One cannot lose sight of the fact, that Section 268-A of the 1961 Act was inserted by the Finance Act 2008 with retrospective effect from 1.4.1999. The legislature in its wisdom clearly desired to give statutory effect to all instructions issued on the subject of monetary limits for regulating filing of appeals retrospectively. Accordingly, all instructions laying down monetary limits for filing appeals (which were issued on or after 1.4.1999) by a deeming fiction of law must be treated as having been issued under Section 268-A(1) of the 1961 Act. A reading of sub-section (1) of Section 260-A of the 1961 Act, as suggested by the learned counsel for the appellant - revenue, vests a right in the Revenue to prefer an appeal before an Appellate Authority, in all such cases involving substantial questions of law. The aforesaid right will now have to be read along with the mandate of sub-section (1) of Section 268-A of the 1961 Act, which restricts the remedy of preferring appeals on the basis of monetary limits stipulated by the Central Board of Direct Taxes. The Central Board of Direct Taxes is the policy making agency of the Department of Revenue. The monetary limits prescribed by the Central Board of Direct Taxes can not be treated as an arbitrary ITA No. 171 of 2002 43 imposition on the Department of Revenue. The Department of Revenue having chosen on its own volition, the monetary limits for filing appeals to challenge orders passed in favour of assessees, cannot be heard to deviate therefrom. When the Revenue itself lays down the aforestated monetary limits, a harmonious construction of sub-section (1) of Section 260-A of the 1961 Act, and sub-section (1) of Section 268-A of the 1961 Act, would inevitably lead to the conclusion, that the Revenue can prefer an appeal, if a case raises a substantial question of law, subject to the monetary limits stipulated by the Central Board of Direct Taxes. This conclusion of ours will have to be kept in mind while examining different pleas raised on behalf of the appellant - revenue.
24. In view of the conclusion drawn by us in the foregoing paragraph, the submission advanced by the learned counsel for the appellant
- Revenue, emerging from Section 260-A(1) of the 1961 Act, to the effect that an appeal can be filed by the Revenue in all cases where a substantial question of law arises, and that, the right of the Revenue to file an appeal cannot be restricted, deserves to be rejected, and is accordingly, rejected. We are also of the view, that the submission of the learned counsel for the appellant - revenue based on sub-section (4) of Section 260-A of the 1961 Act, is also wholly misconceived. We are one with the learned counsel for the respondent - assessee, that it is open to the respondent - assessee to repudiate not only the legal submissions advanced in an appeal on behalf of the Revenue, but also, any other legal submission that may arise therein. What seems to have been over-looked by the learned counsel for the appellant - revenue is, that a plea raised by an assessee under Section 268-A of the 1961 Act, is also a plea on a proposition of law. Furthermore, under ITA No. 171 of 2002 44 sub-section (6) of Section 260-A of the 1961 Act, it is also open to this Court to decide such questions of law, which have not been determined hitherto before. The aforesaid conclusions drawn by us completely negate the contentions raised on behalf of the appellant - revenue on the effect Section 260-A of the 1961 Act.
25. On the basis of the conclusions drawn by us hereinabove, on the basis of the submissions advanced by the learned counsel for the appellant - revenue based on Section 260-A of the 1961 Act, and on the basis of the conclusions drawn by us on the basis of the submissions advanced by the learned counsel for the respondent - assessee based on Section 268-A of the 1961 Act; we have no hesitation to conclude that the instructions issued by the Central Board of Direct Taxes laying down monetary limits for filing of appeals, are mandatory, and as such, binding on the Revenue. This conclusion of our also answers the first contention raised on behalf of the appellant - revenue.
26. It is in the background of the aforesaid conclusions, that we will now endeavour to deal with the instructions relied upon by the learned counsel for the rival parties. So far as, learned counsel for the appellant - revenue is concerned, she has placed reliance on an instruction dated 4.11.1987. It would be pertinent to mention, that the aforesaid instruction certainly does not fall within the protective umbrella of Section 268-A of the 1961 Act, in as much as, the aforesaid instruction was issued prior to 1.4.1999. To say the least, the instruction relied upon by the learned counsel for the appellant - revenue cannot be deemed to have had any statutory effect, as the same cannot be deemed to have been issued under Section 268-A of the 1961 Act, inspite of the retrospective operation ITA No. 171 of 2002 45 thereof.
27. Learned counsel for the respondent - assessee placed reliance on an instruction dated 27.3.2000. The instruction relied upon by the learned counsel for the respondent - assessee must be deemed to have been issued under the mandate of Section 268-A of the 1961 Act, as the aforesaid provision was inserted with retrospective effect from 1.4.1999. The aforesaid instruction was issued after Section 268-A of the 1961 Act had been deemingly introduced into the 1961 Act. The instruction dated 27.3.2000 must therefore, be deemed to have statutory effect. The instruction under reference dated 27.3.2000, was in force when the instant appeal was preferred by the appellant - revenue in the year 2002.
28. It would also be pertinent to mention, that the learned counsel for the respondent - assessee also placed reliance on Instruction No.5 dated 15.5.2008, revising the monetary limits for filing appeals before the Income Tax Appellate Tribunals, High Courts, as well as, the Supreme Court, in order to assert, that the instant appeal is also not competent under the latest instruction issued by the Central Board of Direct Taxes. This instruction must naturally be deemed to have statutory effect as the same has expressly been issued under Section 268-A(1) of the 1961 Act. The aforesaid instruction dated 15.5.2008, is being reproduced hereunder: -
"Reference is invited to Board's instructions No.1979 dated 27.3.2000, No.1985 dated 29.6.2000, No.6 of 2003 dated 17.7.2003, No.19 of 2003 dated 23.12.2003, No.5/2004 dated 27.5.2004, No.2/2005 dated 24.10.2005 and No.5/2007 dated
16.7.2007, wherein . Monetary limits for filing departmental appeals (in income tax matters) and other conditions were specified, for filing appeals before Appellate Tribunal, High Courts and Supreme Court.
ITA No. 171 of 2002 46
2. In supersession of the above instructions, it has been decided by the Board that departmental appeals will be filed before Appellate Tribunal, High Courts and Supreme Court as the monetary limits and conditions specified below.
3. Appeals will henceforth be filed only in cases where the tax effect exceeds monetary limits given hereunder: -
Sr. Appeals in Income tax matters Monetary limit (in No. Rs.) 1 Appeal before Appellate Tribunal 2,00,000/-
Appeal under Section 260-A 4,00,000 2 before High Court 3 Appeal before Supreme Court 10,00,000/-
4. For this purpose, "tax effect." means the difference between the tax on the total income assessed and the tax that would have been chargeable had such total income been reduced by the amount of income in respect of the issue against which appeal is intended to be filed (hereafter referred to as "disputed issues."). However, the tax will not include any interest thereon. Similarly, in loss cases, notional tax effect should be taken into account. In the cases of penalty orders, the tax effect will remain quantum of penalty deleted or reduced in the order to be appealed against.
5. The Assessing Officer shall calculate the tax effect separately for every assessment year in respect of the disputed issues in the case of every assessee. If, in the case of an assessee, the disputed issues arises in more than one assessment year, appeal shall be filed in respect of such assessment year or years in which the tax effect in respect of the disputed issues exceeds the monetary limits specified in para 3. No appeal shall be filed in respect of an assessment year or years in which the tax effect is less than the monetary limit specified in para 3. In other words, henceforth, appeals will be filed only with reference to the tax effect in the relevant assessment year.
However, in case of a composite order of any High Court or ITA No. 171 of 2002 47 Appellate Authority, which involves more than one year, appeal shall be filed in respect of all assessment years even if the "tax effect" is less than the prescribed monetary limits in any of the year(s), if it is decided to file appeal in respect of the year(s) in which 'tax effect' exceeds the monetary limit prescribed.
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 prescribed 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 assessee for any other assessment year or in the case of any other assessee for the same or any other assessment year, by not filing an appeal on the same disputed issues. The Department representatives/counsel must make every effort to bring to the notice of the Tribunal or Court that the appeal in such cases was not filed or not admitted only by reason of the tax effect being less than the specified monetary limit, and therefore, no inference should be drawn that the decisions rendered therein were acceptable to the Department. Accordingly, they should impress upon the Tribunal or the ITA No. 171 of 2002 48 Court that such cases do not have any precedent value.
8. Adverse judgements relating to the following should be contested irrespective of the tax effect.
a) Where the constitutional validity of the provisions of an Act or Rule are under challenge.
b) Where Board's order, Notifications, Instruction or Circular has been held to be illegal or ultra vires.
c) Where Revenue Audit, objection in the case has been accepted by the Department.
9. The proposal for filing Special Leave Petition under Article 136 of the Constitution before the Supreme Court should in all cases, be sent to the Directorate of Income Tax (Legal& Research), New Delhi, and the decision to file Special Leave Petition shall be in consultation with the Ministry of Law and Justice.
10. The monetary limits specified in para 3 above, will not apply to writ matters.
11. This instruction will apply to appeals filed on or after 15th of May 2008. However, the cases where appeals have been filed before 15th of May 2008 will be governed by the instructions on this subject, operative at the time when such appeal was filed.
12. This issues under Section 268-A(1) of Income Tax Act, 1961."
It is the vehement contention of the learned counsel for the respondent - assessee, that even as per the aforestated revised instruction issued by the Central Board of Direct Taxes, under Section 268-A(1) of the 1961 Act, yet again, limits prescribed are such, that the appellant - revenue should be prevented from pressing the instant appeal.
29. We have given our thoughtful consideration to the submissions advanced by the learned counsel for the respondent - assessee on the basis of the instruction dated 15.5.2008. We are, however, satisfied that the ITA No. 171 of 2002 49 aforesaid instruction is irrelevant for the purpose of determination of the present controversy, on account of the fact that paragraph 11 of the aforesaid instruction, makes the same applicable only in respect of appeals filed on or after 15.5.2008. The instant appeal was filed in the year 2002 i.e. well before 15.5.2008. Be that as it may, it is possible for us to draw yet another inference in favour of the respondent - assessee, namely, that the instruction prevalent prior to the instruction dated 15.5.2008, has expressly been made applicable to appeals preferred before 15.5.2008. We, therefore, must inevitably revert back to the instruction dated 27.3.2000, for determining the veracity of the filing of the instant appeal.
30. While disposing of the instant controversy, we would like to expressly notice, that it is not a matter of dispute at the hands of the learned counsel for the rival parties, that the tax effect in the present appeal is below the monetary limits prescribed, for preferring an appeal under the instruction dated 27.3.2000. It would also be pertinent to mention, that it is not the case of the appellant - revenue, that inspite of the tax effect, the instant appeal could have been preferred under one of the four exceptions recorded in paragraph 3 of the instruction dated 27.3.2000. Thus viewed, we are satisfied that, even though, the instant appeal was filed when Section 268-A of the 1961 Act had not been inserted into the 1961 Act, yet since Section 268-A was inserted therein with retrospective effect from 1.4.1999, by a deeming fiction of law, the same must be deemed to have been filed when Section 268-A was already a part of the 1961 Act.
31. We would be failing in our duty, if we do not make a reference to the another submission advanced by the learned counsel for the appellant
- revenue on the basis of the instruction dated 4.11.1987 (already extracted ITA No. 171 of 2002 50 above). Referring to Clauses (ii) and (iii) in paragraph 3 of the instruction dated 4.11.1987, it was the contention of the learned counsel for the appellant - revenue, that even though, the tax effect in the present appeal was below the one stipulated in the aforesaid instruction, yet on account of the fact that the question of law, which was sought to be adjudicated through the instant appeal, had arisen for the first time before this Court, and that, there were other adverse judgements on the subject, which were required to be contested by way of the present challenge raised in the instant appeal, the instant appeal should not be thrown out summarily. The instant submission advanced by the learned counsel for the appellant - revenue deserves to be declined for two reasons. Firstly, that the instruction dated 4.11.1987 came to be expressly superseded by the subsequent instruction dated 27.3.2000. This is apparent from paragraph 2 of the instruction dated 27.3.2000 (extracted hereinabove). Secondly, the exceptions carved out in the instruction dated 4.11.1987, relied upon by the learned counsel for the appellant - revenue to press the maintainability of this appeal, have been acknowledged as they do not fall within the exceptional circumstances mentioned in paragraph 3 of the instruction dated 27.3.2000. We are of the view that it was open to the Revenue to prefer an appeal only on the four grounds specified in paragraph 3 of the instruction dated 27.3.2000, and on no other ground, in cases where the tax effect was less than that prescribed therein after the supersession of the instruction dated 4.11.1987. Since the grounds relied upon by the learned counsel for the appellant - revenue did not subsist at the time of the filing of the instant appeal, at which juncture the instruction dated 27.3.2000 was applicable, it is not necessary for us even to examine the instant contention advanced by the learned counsel for ITA No. 171 of 2002 51 the appellant - revenue on the basis of the instruction dated 4.11.1987.
32. As a consequence of giving the effect to the mandate of Section 268-A of the 1961 Act, in conjunction with the instruction issued by the Central Board of Direct Taxes dated 27.3.2000, we are satisfied that the instant appeal was not maintainable in law. The same should not have been pressed after it had been filed by the appellant - revenue. Accordingly, we accept the preliminary objection raised by the learned counsel for respondent - assessee. Having accepted the aforesaid preliminary objection, we are satisfied that the instant appeal deserves to be dismissed on the basis of the instruction dated 27.3.2000, read with Section 268-A of the 1961 Act. Ordered accordingly.
( J.S. Khehar ) Judge ( Nawab Singh ) Judge.
26.02.2009 sk.