IN THE INCOME TAX APPELLATE TRIBUNAL,
DELHI BENCH `D' NEW DELHI
BEFORE : SHRI C. M. GARG, JUDICIAL MEMBER &
SHRI L.P. SAHU, ACCOUNTANT MEMBER
ITA No. 843/Del./2013
Asstt. Year :2009-10
Income-tax Officer, vs. Jagat Singh Maan,
Ward 38(2), New Delhi. C/o MEK-108, Old Rang Puri,
Mahipalpur, New Delhi
[PAN : AAIPM7742F]
(Appellant) (Respondent)
Revenue by : Ms. Richa Rastogi, Sr. DR
Assessee by : None
Date of hearing : 20.01.2016
Date of pronouncement : 20.01.2016
ORDER
Per L.P. Sahu, Accountant Member:
This appeal by the Revenue arises out of the order passed by
the CIT(A) in relation to the captioned assessment year.
2. During the course of hearing, the ld. DR, although supported
the order of the Assessing Officer, but could not controvert the fact
that tax effect involved in this appeal is less than Rs.10,00,000/-
and that the appeal of the revenue is covered by Circular of CBDT
No. 21 of 2015 dated 10.12.2015, revising the monetary limit to
Rs.10,00,000/- for not filing appeals before the Tribunal.
None is present for the assessee.
2 ITA No. 843/Del/2013
3. After considering the submissions of the ld. DR and the
material on record, it is noticed that Section 268A has been
inserted by the Finance Act, 2008 with retrospective effect from
01.04.1999, reading as under:
" 268A. (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
3 ITA No. 843/Del/2013
have been issued under sub-section (1) and the provisions
of sub-sections (2), (3) and (4) shall apply accordingly.] "
4. Pursuant to the mandate of section 268A, the CBDT has issued
Circular No. 21 of 2015 dated 10.12.2015, revising the monetary
limit to Rs.10,00,000/- for not filing appeals before the Tribunal.
The said circular reads as under:
" Subject : Revision of monetary limits for filing of
appeals by the Department before Income Tax Appellate
Tribunal and High Courts and SLP before Supreme Court
measures for reducing litigation Reg.
Reference is invited to Board ' s instruction No 5/2014
dated 10.07.2014 wherein monetary limits and other
conditions for filing departmental appeals (in Income-tax
matters) before Appellate Tribunal and High Courts and SLP
before the Supreme Court were specified.
2. In supersession of the above instruction, it has been
decided by the Board that departmental appeals may be filed
on merits before Appellate Tribunal and High Courts and SLP
before the Supreme Court keeping in view the monetary
limits and conditions specified below.
3. Henceforth, appeals/ SLPs shall not be filed in cases
where the tax effect does not exceed the monetary limits
given hereunder:
Appeals in Income-tax Monetary Limit (in
S. No
matter Rs)
1 Before Appellate Tribunal 10,00,000/-
2 Before High Court 20,00,000/-
3 Before Supreme Court 25,00,000/-
It is clarified that an appeal should not be filed merely
because the tax effect in a case exceeds the monetary limits
prescribed above. Filing of appeal in such cases is to be
decided on merits of the case.
4 ITA No. 843/Del/2013
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 issues
against which appeal is intended to be filed (hereinafter
referred to as " disputed issues " ). However the tax will not
include any interest thereon, except where chargeability of
interest itself is in dispute. In case the chargeability of
interest is the issue under dispute, the amount of interest
shall be the tax effect. In cases where returned loss is
reduced or assessed as income, the tax effect would include
notional tax on disputed additions. In case of penalty orders,
the tax effect will mean 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 arise in more than one
assessment year, appeal, can be filed in respect of such
assessment year or years in which the tax effect in respect of
the disputed issues exceeds the monetary limit 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 can 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 appellate
authority, which involves more than one assessment year and
common issues in more than one assessment year, appeal
shall be filed in respect of all such 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. In case where a composite order/ judgement
involves more than one assessee, each assessee shall be dealt
with separately.
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
5 ITA No. 843/Del/2013
not acceptable, appeal is not being filed only on the
consideration that the tax effect is less than the monetary
limit specified 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 Departmental
representatives/counsels must make every effort to bring to
the notice of the Tribunal or the Court that the appeal in
such cases was not filed or not admitted only for the 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 Court that such cases do not have any
precedent value. As the evidence of not filing appeal due to
this instruction may have to be produced in courts, the
judicial folders in the office of CIT must be maintained in a
systemic manner for easy retrieval.
8. Adverse judgments relating to the following issues
should be contested on merits notwithstanding that the tax
effect entailed is less than the monetary limits specified in
para 3 above or there is no tax effect:
(a) Where the Constitutional validity of the provisions of an
Act or Rule are under challenge, or
(b) Where Board ' s order, Notification, Instruction or
Circular has been held to be illegal or ultra vires, or
6 ITA No. 843/Del/2013
(c) Where Revenue Audit objection in the case has been
accepted by the Department, or
(d) Where the addition relates to undisclosed foreign
assets/ bank accounts.
9. The monetary limits specified in para 3 above shall not
apply to writ matters and direct tax matters other than
Income tax. Filing of appeals in other Direct tax matters
shall continue to be governed by relevant provisions of
statute & rules. Further, filing of appeal in cases of Income
Tax, where the tax effect is not quantifiable or not involved,
such as the case of registration of trusts or institutions under
section 12A of the IT Act, 1961, shall not be governed by the
limits specified in para 3 above and decision to file appeal in
such cases may be taken on merits of a particular case.
10. This instruction will apply retrospectively to pending
appeals and appeals to be filed henceforth in High Courts/
Tribunals. Pending appeals below the specified tax limits in
para 3 above may be withdrawn/ not pressed. Appeals before
the Supreme Court will be governed by the instructions on
this subject, operative at the time when such appeal was
filed.
11. This issues under Section 268A (1) of the Income-tax
Act 1961. "
5. From para 10 of the above Circular it is palpable that these
instructions are applicable to the pending appeals also and there is
a clear cut instruction to the Department to withdraw or not press
such appeals filed before the ITAT wherein tax effect is less than
Rs.10,00,000/-. These instructions are operative retrospectively to
the pending appeals also.
6. It goes without saying that the Board ' s instructions or
directions issued to the income-tax authorities are binding on
them. Going by the prescription of the afore-noted Circular, we are
of the view that the Revenue should have either not filed the
7 ITA No. 843/Del/2013
instant appeal before the Tribunal or withdrawn the same as the
tax effect in this appeal is less than the prescribed limit for not
filing the appeal.
7. Keeping in view the above Circular and the provisions of
Section 268A of Income-tax Act, 1961, and without going into
merits of the case, we dismiss the instant appeal filed by the
Revenue as tax effect in this appeal is less than Rs.10.00 lacs.
8. In the result, the appeal of the Revenue stands dismissed.
Order pronounced in the open court on 20.01.2016
Sd/- Sd/-
(C.M. GARG) (L.P. SAHU)
Judicial Member Accountant Member
Dated : 20.01.2016
*aks/-
Copy of order forwarded to:
(1) The appellant (2) The respondent
(3) Commissioner (4) CIT(A)
(5) Departmental Representative (6) Guard File
By order
Assistant. Registrar
Income Tax Appellate Tribunal
Delhi Benches, New Delhi
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