T.a./16/2006 Of Commissioner Of Income Tax v. Smt. Manisha Agarwal

IN THE HIGH COURT OF JHARKHAND AT RANCHI T.A. No. 16 of 2006 Commissioner of Income Tax, Central, Patna.. ... AppellantVs.Smt. Manisha Agarwal ..... Respondent ------ CORAM:HON'BLE THE CHIEF JUSTICE. HON'BLE MR. JUSTICE APARESH KUMAR SINGH. ------ For the Appellant: Mr. Deepak Roshan, Sr. S.C.(Rev) Mrs. Rupa Kumari, Adv.For the Respondent: Mr. B. Poddar, Sr. Adv. Mr. Piyush Poddar, Adv. Mrs. Darshana Poddar, Adv. Ms. Amrita Sinha, Adv.------ th January, 2014 Dated 18 The revenue has preferred this appeal against an order dated 13.4.2006 passed by the Income Tax Appellate Tribunal (in short I.T.A.T.) in IT(SS) No. 57/Pat/2005 for the assessment year (block period) 1991-92 to 2000-2001 and 1.4.2000 to 14.2.2001 whereby and whereunder the I.T.A.T confirmed the order passed by the C.I.T(Appeals) and held that the surcharge of undisclosed income cannot be levied in respect of search conducted prior to 1.6.2002. In course of assessment proceedings of the block period, the Assessing Officer determined total undisclosed income at Rs. 12,49,145/- in the case of respondent and subsequently by order dated 15.3.2004 surcharge of Rs. 74,948/- was levied in terms of the provisions of Finance Act, 2000 and only on this levy of surcharge, revenue preferred appeal before Commissioner of Income Tax (Appeals) (in short C.I.T. (Appeals)). By order dated 23.9.2004, the C.I.T. (Appeals) held that the provisions of Section 113 of the Income Tax Act has been inserted by the Finance Act, 2000 with effect from 1.6.2002. Proviso to Section 113 of the Income Tax Act had been inserted with effect from 1.6.2002 for levying surcharge on undisclosed income. The C.I.T (Appeals) held that search was conducted much prior to 1[st ]June, 2002, and, therefore, surcharge is not leviable and on this findings, held the surcharge levied by the Assessing Officer is not correct and the same is deleted. The appeal preferred by the revenue before the Income-Tax Appellate Tribunal was dismissed by the Tribunal vide its order dated 3.4.2006. Challenging the order of the Tribunal, the revenue has preferred this appeal. We have heard the submission of Mr. Deepak Roshan, learned counsel appearing for the revenue as well as learned Sr. counsel, Mr. B. Poddar, appearing for the assessee. Learned Sr. counsel, Mr. B. Poddar, appearing for the assessee, raised objection regarding the maintainability of the appeal and submitted that vide instruction No.2/2005, dated 24.10.2005, the appeal will henceforth be filed only in cases where the tax effect exceeds the monetary limits at the time of filing the appeal i.e. Appeal u/s 260 A, Rs.4,00,000/-(Rupees four lacs) and it has been submitted that the tax effect in the instant appeal is Rs.74,948/- which is much below the monetary limits as prescribed by the Central Board of Direct Taxes(CBDT) for filing the appeal before the High Court. Learned Sr. counsel has drawn our attention to instruction no.2/2005, dated 24.10.2005, which is annexed as Annexure-A to the counter affidavit, dated 16.8.2013. Instruction no.2/2005, dated 24.10.2005 reads as under: “2. In partial modification of the above instruction, it has now been decided by the Board that appeals will henceforth be filed only in cases where the tax effect exceeds the revised monetary limits given hereunder:- 3. The Board has also decided that in cases involving substantial question of law of importance as well as in cases where the same question of law will repeatedly arise, either in the case concerned or in similar cases, should be separately considered on merits without hindered by the monetary limits. 4. Subject to the paragraphs 2 and 3 above, the Instruction No 1979, dated 27.3.2000 as clarified subsequently in Instruction No. 1985, dated 29.6.2000, will continue to govern the decision for filing of departmental appeals. “2. In partial modification of the above instruction, it has now been decided by the Board that appeals will henceforth be filed only in cases where the tax effect exceeds the revised monetary limits given hereunder:- 3. The Board has also decided that in cases involving substantial question of law of importance as well as in cases where the same question of law will repeatedly arise, either in the case concerned or in similar cases, should be separately considered on merits without hindered by the monetary limits. 4. Subject to the paragraphs 2 and 3 above, the Instruction No 1979, dated 27.3.2000 as clarified subsequently in Instruction No. 1985, dated 29.6.2000, will continue to govern the decision for filing of departmental appeals. 5. This Instruction will come into effect from 31.10.2005. Instruction: No. 2/2005, dated 24.10.2005.” Since the tax effect involved in the present appeal is only Rs.74,948/-, in view of instruction no. 2/2005, dated 24.10.2005, the appeal filed by revenue is not maintainable and the same is dismissed. (R. Banumathi, C.J.) (Aparesh Kumar Singh, J)