Revenue v. Lassessee

HIGH COURT OF CHHATTiSGARH AT BILASPUR D.B. HON'BLE SHRI DHiRENDRA MISHRA, &HON'BLE SHRI R.N. CHANDRAKAR, JJ TaxCaseNo.15 of 2009Commissioner of Income Tax, Raipur. (Revenue)VersusSmt. Muskan Rohra W/o Santosh Rohra, RaipurRoad, Dhamtari. lAssessee) Present:Shri Rajeev Shrivastava, Standing Counsel for the appsllant.Shri Neeiabh Dubey, counsel for the respondent. ORAL ORDER (Passed on 27"' January, 2010) PerDhirendra Mishra, J The instant appeai preferred by the appellant/revenue under Section260A of the Income Tax Act, 1961 (in short["the]Act") against the orderof the Income Tax Appellate Tribunal, Bilaspur Bench, Camp at Raipur(in short "Tribunal") has been admitted on the following substantialquestion of law: "Whether in the facts and circumstances of ffiie case,the Income Tax Appellate Tsibunat was jusiified in law,in cjuashing the orefer passed under Secffon 263 and inholding that the assessmentorder was not envneousand prejudicial to the interest of revenue though properand acfeqiyate inquiry was not made by the AssessingOfficer before passing assessment order?" Briefiy stated, facts of the case, as projected in the impugned order, arethat assessment was compieted under Section 143(3) of the Act on23.1.2007 on a total income of Rs.90,980/- against the returned incomeof Rs.81,980/- by making routine disailowances. Later on, it wasdiscovered by the Assessing Officer (in short "AO") that the assesseehad shown an income of Rs.9,84,242/- under the head of Long TermCapita! Gain and claimed exemption under Section 10(38) ofthe Act. 2. Learned Commissioner, Income Tax (in short "CIT") in his order underSection 263 of the Act, held the said assessment erroneous andprejudicial[to][ the][ interest][ of][ the][ revenue][ as][ the][ AO][ accepted][ the][ claim] 3. ifflSsiSS-y.-aff??,: 4. 6.7. of the assesseeproper verification and investigation of thefacts.facts. The assessee aggrieved by the order of the CIT, preferred appealbefore the Tribunal.LearnedTribunai aliowed the appealby theirnpugned order with a finding that learned CIT was not justified inhoiding that the AO aiiowed exemption under Section 10(38) of the Actwithout maklng proper enquiries. and further heid that the order of theAO cannot be heid to be erroneous or prejudiciat to the interest of therevenue and the present case was not fit for invoking provisions ofSectlon 263 of the Act. Shri Rajeev Shrivastava, iearned counsei for the appeilant/'revenue, oninstructions from the department, before entering into merits of thecase, fairly submits that even if the order passed by teamed CIT underSection 263 is upheid, tax effect involved in this appeal is less than theminimum monetary limit of Rs.4 lac as fixed by the Central Board ofDirect Taxes vide its instructions No.5/08 dated 15.5.2008, according towhich for preferring appeal before the High Court, the minimum taxeffect has been fixed at Rs.4 tacs. Heard tearned counsel for the parties. The Central Board of Direct Taxes (in short "the Board") issuesinstructions to the income-tax authorities by way of issuing circularsfrom time to time. The Board, vide Instruction No.5/08 dated 15.5.2008,in supersession of the earlier instructions, instructed the income-taxauthoritiesregarding the monetary limits and conditions for filingdepartmental appeals before the Appeliate Tribunals, High Courts andSupremeCourt.InstructionNo.3deals withthemonetarylimits,Instruction No.4 detines the tax effect, whereas instructions No. 8 & Smention ihe conditions, in which adverse judgments are to be contesteciirrespective of the tax effect. As per above instructions, for niing appealbefore ihe High Court, the minimum mpnetary limit has been fixed atRs.4 lacs.Thus, in view of the iatest Instruction dated 15.5.2008 andSection 268A of the Act, we do not deem it necessary to go into tnernerits ot the case.Accordingty, tne appeai is dismissed tor navingnegiigible faxCTre&t———, Sd/-Sdl-R.N. ChandrakarDhirendraMishr.JudgeJud&e