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Kiran Lilabhai Patel Vs. Department of Income Tax - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Mumbai
Decided On
Case NumberMA Nos. 296 & 297/Mum of 2013 (Arising Out of ITA Nos. 8392 & 8391/Mum of 2010)
Judge
AppellantKiran Lilabhai Patel
RespondentDepartment of Income Tax
Excerpt:
.....being applicable only to appeals filed on or after the date of its issue, i.e., 09.02.2011. the instant appeals having been filed on 02.12.2010, i.e., prior thereto, the said instruction would not be applicable thereto, which would instead be governed by the extant board instruction, i.e., the instruction no. 5/2008 dated 15.05.2008, prescribing a monetary limit of rs.2 lacs in respect of the second appeal, i.e., before the tribunal, and which would thus apply to appeals preferred during the period 15.05.2008 to 08.02.2011. the tax-effect of the instant appeals being above rs.2 lacs each, could not be therefore said to be not maintainable, and the impugned order requires reconsideration. 3. we have heard the parties, and perused the material on record. 3.1 the revenue through its.....
Judgment:

Sanjay Arora, A. M.:

1. This is a set of two Miscellaneous Petitions/Applications by the Revenue in respect of a combined order u/s.254(1) of the Income Tax Act, 1961 ('the Act' hereinafter) by the Tribunal in the assessee's own case for the assessment years (A.Y.) 2006-07 and 2007-08.

2. The tribunal having dismissed the Revenue's Appeals in limine, i.e., as not maintainable in view of the provision of section 268A of the Act, has moved the present applications, claiming that inasmuch as the tribunal states of doing so by following Instruction No. 3 of 2011 dated 09.02.2011 by CBDT (copy on record) prescribing a monetary limit of Rs.3 lacs for appeals by the Revenue before the appellate tribunal, its order is internally inconsistent, as the said Instruction, vide para 11 thereof, clearly states of the being applicable only to appeals filed on or after the date of its issue, i.e., 09.02.2011. The instant appeals having been filed on 02.12.2010, i.e., prior thereto, the said Instruction would not be applicable thereto, which would instead be governed by the extant Board Instruction, i.e., the Instruction No. 5/2008 dated 15.05.2008, prescribing a monetary limit of Rs.2 lacs in respect of the second appeal, i.e., before the tribunal, and which would thus apply to appeals preferred during the period 15.05.2008 to 08.02.2011. The tax-effect of the instant appeals being above Rs.2 lacs each, could not be therefore said to be not maintainable, and the impugned order requires reconsideration.

3. We have heard the parties, and perused the material on record. 3.1 The Revenue through its present miscellaneous applications seeks to bring to the notice of the tribunal a fact of which it is well aware and concious of, i.e., that Instruction No.3 of 2011 dated 09.02.2011 makes itself applicable only to appeals by the Revenue before the relevant appellate forums on and after the date of its issue. When the tribunal holds the Revenue's appeals as not maintainable u/s.268A in view of the said Instruction, it only means the said Instruction as read and interpreted by the hon'ble jurisdictional high court, whose decisions, also referred to therein, are binding on it. All this would be apparent from a reading of the impugned order (refer para 3 of the impugned order).

3.2 Further, even though it cannot be presumed that the hon'ble court is not aware of the said para 11 of the relevant Instruction (No.3 of 2011), the decision in the case of CIT vs. Smt. Vijaya vs. Kavekar [2012] 77 DTR (Bom) 203 ([2013] 350 ITR 237), referred to by the tribunal, takes note thereof, and goes on to hold that the said Instruction is in pari materia with Instruction No.5/2008 dated 15.05.2008 (refer paras 11-15 thereof), and retrospective in operation. Further, in CIT vs. Smt. Varsha Dilip Kolhe (in Tax Appeal No. 7 of 2010 dated 05.03.2012), again referred to by the tribunal, the hon'ble court confirms its view after taking note of the observation by the apex court in the case of CIT vs. Surya Herbal Ltd. dated 29.08.2011. No cascading effect has even otherwise been pointed out or alleged by the Revenue in the instant cases. Reference may also be made to the decision in CIT vs. Polycott Corporation [2009] 318 ITR 144 (Bom) explaining that the Board Instructions could not be interpreted as a statute. That is, the consistent view of the hon'ble jurisdictional high court is that the Instructions by the Board issued in the matter would apply to pending appeals as well.

3.3 In view of the foregoing, we find no infirmity in the impugned order on each of the aspects or grounds sought to be impressed upon per the instant applications. We, therefore, decline interference. We decide accordingly.

4. In the result, the Miscellaneous Applications by the Revenue are dismissed.


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