Income Tax Appeal v. Shankar Narayanrao Bobde

IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH : NAGPUR INCOME TAX APPEAL No. 2 & 3 OF 2005( Commissioner of Income Tax -: versus :- Shankar Narayanrao Bobde ) Office Notes, Office Memoranda ofCoram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders CORAM: B.P. DHARMADHIKARI AND F.M. REIS, JJ. DATED : SEPTEMBER 22, 2009. Heard Shri A. Parchure, learned counsel for appellant and Shri S.N. Bhattad, learned Counsel for respondent. After hearing the parties on earlier occasion, the matter was adjourned to enable them to point to us, whether interest charged under Section 234A, 234B & 234C could be included for computing tax effect. Today, instruction no.5 of 2007 dated 16.07.2007 is produced before us by learned Counsel for respondent. It’s perusal shows that vide clause no.2 thereof, the CBDT has clarified that the tax effect relevant for consideration of Board’s Instruction no.2/2005 dated 24.10.2005 will not include interest. The said instruction is reported at (2007) 210 CRT (St) 76. Relying on very same instructions, Shri Parchure, learned counsel for appellant points out that as per clause no.3 thereof, if the issue is of recurring nature, the monetary limit is irrelevant. The present Appeals were disposed of on 21.03.2007 by placing reliance upon the judgments of Hon’ble Apex Court in case of Smt. Amiya Bala Paul .vrs. CIT(262 ITR 407), however, because of subsequent retrospective amendment to Section 142-A which was then not pointed to the Bench, said order was recalled. It is apparent that the tax effect in both these appeals viewed in the light of Instruction no.5 of 2007 is Rs.86688/- and Rs. 91691/-. The contention that the issue will be of recurring nature, cannot be accepted because the respondent Assessee is a salaried person and is not engaged in business of construction or development. It is apparent that in his case therefore there is no question of rising of such issue again. Contention of learned counsel for appellant that such issue may arise in some other matter and the judgment of ITAT will be cited as precedent, is not proper because in that event all issues will be of recurring nature. The issue as contemplated by Instruction no.5 of 2007 has to recur again in the case of same assessee or in some matter relating to him. In the circumstances, in view of the tax effect mentioned above and the judgments in the case of CIT .vrs.Camco Colour Co. (254 ITR (Bom.) 565) and CIT .vrs.Pithwa Engg Works (276 ITR 19), the appeals are disposed of on account of tax limit. JUDGEJUDGE