Appellant:^^ommissioner^^ommissioner^bilaspur (Cg v. ^Shri Rajesh Agrawat, K-22 Kranti

^: miv. IN THE HIGM COURT OF JUDICATURE AT BILASPUR TAxcAsENo.////2oi2Q.^onBenAQ.^onBenA:ofIncomeTax, APPELLANT:^^ommissioner^^ommissioner^Bilaspur (CG) vs :^Shri Rajesh Agrawat, K-22 Kranti RESPONJbENT:•:'^..iJ^0y'v Nagar, Bilaspur (CG). L....--ly"APPEALEAL UNbER SECTION 260-A OF THE INCOME TAXACT. 1961 HIGH COURT OF CHHATTISGARH AT BILASPUR CORAM:HON'BLE SHRI YATINDRA SIN6H, C.J.HON'BLE SHRI PRITINKER DIWAKER, J. RespondentAppellant Appeals under Section 260-A of the Income Tax Act 1961 Appearance: Shri Anand Dadariya, counsel for the Appellants.Shri MK Sinha, counsel forthe Respondents. JUDGEMENT(4thJuly,2013) 1.These appeals are against the composite order dated 18.10.2011passed by the Income Tax Appellate Tribunal, Bilaspur Bench Camp atRaipur (the Tribunal) dismissing the appeals filed by the Income TaxDepartment (the Department) on the ground of tax effect on the basis ofthe instructions issued by the Central Board of Direct Taxes (the Board)dated 09.02.2011. THE FACTS 2.Shri Rajesh Agrawal, K-22, Kranti Nagar, Bilaspur (Shri Agrawal)isAssessee in Tax Cases-39 to 43 of 2012 in respect of assessment years(the AY) 2003-04, 2004-05, 2006-07, 2007-08, 2008-09. 3.M/s Hind Energy and Coal Benification Private Limited, Rama TradeCentre,Bus stand,Bilaspur, Chhattisgarh (M/s Hind)is a privatecompany registered under the Companies Act.It is Assessee in TaxCases- 44 and 45 of 2012. 4. The brothers of Shri Agrawal are directors in M/s Hind and all of thembelong to the same group. 5.The Assessment Officer (the AO) passed separate orders in respectof different assessment years of the aforesaidtwo Assesseeson24.12.2009. The Assessees had purchased some immovable property.The AOby the said orders, added the difference between the marketvalue as per the authority for stamp duty and the amount stated in thesale deed under section 69B of the Income Tax Act, 1961 (the Act). 6. The Assessees filed appeals before the Commissioner of Income Tax(Appeals) (the[CIT-A).][ The][ appeals][ of][ Shri][ Agrawal][ were][ taken][ together] .•,7f:^-T;?^.^" ^A'.:'^.'%^y. ./ y and by the order dated 16.02.2010. These appeals were allowed.Theadditions were deleted on the ground that the burden of proving theactual consideration in such a transaction was on the Department and asit has not brought any other material, apart from the registered sale deedto prove actual consideration, the additions were deleted.additions were deleted on the ground that the burden of proving theactual consideration in such a transaction was on the Department and asit has not brought any other material, apart from the registered sale deedto prove actual consideration, the additions were deleted. 7.In the case of M/s Hind, the CIT-A allowed the appeal on 19.02.2010on the same reasoning as in the case of Shri Agrawal. 8. Against the aforesaid orders, the Department filed appeals before theTribunal. These appeals were numbered as ITA-107 to 113/BLPR/2010.These appeals were dismissed on 18.10.2011 in view of the instructionsof the Board dated 09.02.201 1 (the 2011 Instructions) on the ground thatthe tax effect was below the limit mentioned thereini. Hence, the presentappeals by the Department. THE DECISION 9. We have heard counsel for the parties. 10.These appeals were admitted on the following substantial questionof law: 'Whether the Tribunal was justified in dismissing the appealonly on the ground that the tax effect in appeal is less thanthe prescribed limit and therefore, it cannot be heard onmerits?' 11.The appeals were filed in the year 2010.At that time, theinstructions of the Board dated 15.05.2008 (the 2008 Instructions) wereapplicable.The instructions dated 09.02.201 1, which have been reliedby the Tribunal came into force after filing of the appeals. 12.A Division Bench of this Court in Commissioner of Income Tax VsNavbharatExplosivesCompany(P)Ltd.,{(2011)337ITR515(Chhattisgarh)}has taken a view that the tax effect is to be seen THE DECISION 9. We have heard counsel for the parties. 10.These appeals were admitted on the following substantial questionof law: 'Whether the Tribunal was justified in dismissing the appealonly on the ground that the tax effect in appeal is less thanthe prescribed limit and therefore, it cannot be heard onmerits?' 11.The appeals were filed in the year 2010.At that time, theinstructions of the Board dated 15.05.2008 (the 2008 Instructions) wereapplicable.The instructions dated 09.02.201 1, which have been reliedby the Tribunal came into force after filing of the appeals. 12.A Division Bench of this Court in Commissioner of Income Tax VsNavbharatExplosivesCompany(P)Ltd.,{(2011)337ITR515(Chhattisgarh)}has taken a view that the tax effect is to be seen .•^^^.^^y^%_'w^.,.,^^'''ii" ^^"^'' according to the instructions applicable at the time of filing of the appealand not at the time of hearing of the same. 13. For the reasons given in the aforesaid judgement, we also agree withthe same.The question is whether the appeals were barred by the taxeffect or not. 14.The 2008 Instructions fixed the tax effect at ?2,00,000/- and itsparagraph-5 explains as to when the appeal is to be filed for differentassessment years as well as in case of a composite order of any HighCourt or appellate authority where the judgement is for more thanone year. Paragraph-5 of the instructions is as follows: 'The Assessing Officer shall calculate the tax effect separatelyfor every assessment year in respect of the disputed issues inthe case of every assessee.If, in the case of an assessee, thedisputed issues arise in more than one assessment year,appeal shall be filed in respect of such assessment year oryears in which the tax effect in respect of the disputed issuesexceeds the monetary limit specified in para 3.No appeal shallbe filed in respect of an assessment year years in which the taxeffect is less than the monetary limit specified in para 3.Inother words, henceforth, appeals will be filed only with referenceto the tax effect in the relevant assessmentHowever, in year.case of a composite order of any High Court or appellateauthority, which involves more than one year, appeal shall befiled in respect of all assessment years even if the "tax effect" isless than the prescribed monetary limits in any of the year(s), ifit is decided to file appeal in respect of the year(s) in which 'taxeffect' exceeds the monetary limit prescribed.' 15. A reading of the aforementioned paragraph-5 indicates that in caseof a composite order of appellate authority of many years, if the tax effectis more than ?2,00,000/- in any year then the appeal should be filed in ^K^ padma respect of all assessment years, even if the tax effect is less than theprescribed monetary limit. 16.The CIT-A was an appellate authority.In respect of Shri Agrawal,the CIT-A in its order dated 16.02.2010 has indicated the tax effect fordifferent years.In respect of Shri Agrawal, for the AY 2007-08, the taxeffect is ?4,88,162/-, whereas, in the AY 2008-09, the tax effect is?2,56,842/-. The tax effect for the two years was more than ?2,00,000/-;the order in respect of Shri Agrawal was a composite order for the AY2003-04 to 2008-09:in view of the same the appeals against ShriAgrawal could not be dismissed on the ground of tax effect. 17. The CIT-A decided the appeals of M/s hlindin respect of the AYs2007-08 and 2008-09 on 19.02.2010.In the said order, the tax effectmentioned is to the tune of ?3,32,168/-and ?83,45,041/-, respectively.It is relevant to point out that the tax effect for both the years was not onlymore than the 2008 Instructions but also more than the 2011 Instructions.Suffice to say that both the appeals against M/s Hind could not bedismissed on the ground of tax effect. 18.In view of above, the question is answered in favour of theDepartment. The appeals are allowed and the matter is sent back to theTribunal with a direction to decide the appeals afresh in accordance withla'"—-—_- _-Sd/-Sd/-ChiefJusticePritinker DiwakarJudge