Ita/263/2009 Of The Commissioner Of Income Tax v. M/S P.t.chacko And Co

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931 ITA.No. 263 of 2009() --------------------- ITA.458/COCH/2005 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/RESPONDENT ---------------------------------------- THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): APPELLANT ------------------------ M/S.P.T.CHACKO AND CO., SANTHA BHAWAN, KALANJOOR P.O., PATHANAPURAM. ADV. SRI.P.BALAKRISHNAN (E) FOR R THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 05/11/2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -------------------------------------------- -------------------------------------------- Dated this the 5th day of November, 2009 JUDGMENT Ramachandran Nair, J. During hearing of the appeal filed by the revenue, Sri. P.Balakrishnan, counsel appearing for the respondent-assessee submittedthat appeal is not maintainable as the tax effect is below Rs. 4 lakhs,which is the limit prescribed by the CBDT for filing appeal by thedepartment under Section 260A of the Act. Even though counsel forthe respondent relied on instruction 5/08 dated 15.5.2008, standingcounsel submitted that this circular does not apply to the appeals filedprior to 15.5.2008. We find force in this contention because clause(11) of the said circular states that all appeals filed before 15.5.2008will be governed by instructions on this subject, operative at the timewhen such appeal was filed. We notice that the department itself filedAnnexure D issued by the Central Board of Direct Taxes dated27.10.2005 wherein the threshold limit for filing appeal to the HighCourt is Rs. 4 lakhs and even though four exceptions are provided for dispensing with minimum tax effect for filing appeal, we do not findthis appeal falls under any of the exception clauses because issue hereis whether the assessee is liable to pay penalty under Section 271(1)(a)of the I.T. Act based on reassessment completed under Section 147 ofthe Act, beyond the period of limitation with reference to originalassessment. We therefore dismiss the appeal as one not maintainable. (C.N.RAMACHANDRAN NAIR)Judge. (V.K. MOHANAN) Judge. kk