D.C.I.T, CENTRAL CIRCLE - 1, JALANDHAR vs. SH. BHANNA URF , KULWINDER SINGH , JALANDHAR

During the course of hearing, learned counsel for the assessee, at the very outset, stated that the appeal filed by the department is not maintainable in view of Circular No.3/2018 dated 11.7.2018 issued by the CBDT wherein the monetary limit of tax

The ld. DR, submitted that the ld. CIT(A) decided the legal issue, the case was not decided on merit and that Circular No.3/2018 is not a blanket bar on filing of appeals before ITAT and para 10 details the exceptions to file the appeal where tax effect is less than Rs.20 lacs and also clarifies that in cases where tax effect is less than Rs.20 lakhs and that where tax effect cannot be quantified as in the case of Registration u/s 12AA, the monetary limit would not be applicable. It was further submitted that the aforesaid circular No.3/18 has been amended vide letter F.No.279/Misc.142/2007-ITJ(Pt) dated 20th July, 2018 as under:- (a) where the Constitutional validity of the provisions of an Act or Rule is under challenge, or (b) where Board’s order, Notification, Instruction or Circular has been held to be illegal or ultra vires, or (c) where Revenue Audit objection in the case has been accepted by the Department, or (d) where addition relates to undisclosed foreign income/undisclosed foreign assets including financial assets/undisclosed foreign bank account. (e) where addition is based on information received from external sources in the nature of law enforcement agencies such as CBI/ED/DRI/SFIO/Directorate General of GST Intelligence (DGGI). (f) cases where prosecution has been filed by the department and is pending in the court. 4. We have considered the submissions of both the parties. In our opinion, the amended circular is not applicable to the facts of the present case, the said amended Circular nowhere it is

In supersession of the above Circular, it has been decided by the Board that departmental appeals may be filed on merits before Income Tax Appellate Tribunal and High Courts and SLPs/ appeals before Supreme Court keeping in view the monetary limits and conditions specified below.

Henceforth, appeals/ SLPs shall not be filed in cases where the tax effect does not exceed the monetary limits given hereunder:

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). Further, ‘tax effect’ shall be tax including applicable surcharge and cess. 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.

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, appeals shall be filed in respect of all such assessment years even if the tax effect is less than the prescribed

Further, where income is computed under the provisions of section 115JB or section 115JC, for the purposes of determination of ‘tax effect’, tax on the total income assessed shall be computed as per the following formula-

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 Pr. Commissioner of

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 and also bring to the notice of the Tribunal/ Court the provisions of sub section (4) of section 268A of the Income-tax Act, 1961 which read as under :

As the evidence of not filing appeal due to this Circular may have to be produced in courts, the judicial folders in the office of Pr. CsIT/CsIT must be maintained in a systemic manner for easy retrieval.

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:

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 and rules. Further, in cases where the tax effect is not quantifiable or not involved, such as the case of registration of trusts or institutions under section 12A/ 12AA of the IT Act, 1961 etc., filing of appeal shall not be governed by the limits specified in para 3 above and decision to file appeals in such cases may be taken on merits of a particular case.

It is clarified that the monetary limit of Rs. 20 lakhs for filing appeals before the ITAT would apply equally to cross objections under section 253(4) of the Act. Cross objections below this monetary limit, already filed, should be pursued

This Circular will apply to SLPs/ appeals/ cross objections/ references to be filed henceforth in SC/HCs/Tribunal and it shall also apply retrospectively to pending SLPs/ appeals/ cross objections/references. Pending appeals below the specified tax limits in pare 3 above may be withdrawn/ not pressed.

The above may be brought to the notice of all concerned.

This issues under Section 268A of the Income-tax Act 1961.”

From Clause 12 & 13 of the above said circular it is clear that these instructions are applicable to the pending appeals also and as per clause 13, there is clear cut instruction to the department to withdraw or not to press the appeals filed before the ITAT wherein tax effect is less than Rs.20,00,000/-. These instructions are operative retrospectively to the pending appeals.

Keeping in view the CBDT Circular No. 3 of 2018 dated 11.07.2018, we are of the view that the Revenue should not have filed the instant appeal before the Tribunal and accordingly dismissed.

In view of the above, the Cross Objection filed by the assessee is dismissed as withdrawn.

In the result, the appeal of the department is dismissed and the Cross Objection of the assessee is dismissed as withdrawn. (Order Pronounced in the Court on 29/11/2018)