Taxc/16/2009 Of Commissioner Of Income Tax,Raipur v. Smt.meera Devi Agrawal

HIGH COURT OF CHHATTiSGARH AT BIL^SPUR 'BLE_SHRiDHIRENDRAMiSHRA,&'BLE SHRI R.N. CHANDRAKAR, JJTaxCa^e_No,_16_of2009Commissioner of Income Tax, Raipur. Smt.Meera Devi Agrawal, W/o MaheshKumarAgrawa!, Sadar Bazar, Dhamtari. Shri Rajeev Shrivastava, Standing Counsel for the appellant.Shri Neeiabh Dubey, counsel for the respondent. QRAS^ORDER(Passed on27B'January, 2010) o PerDhirendra Mishra. J The instant appeal 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, Biiaspur Bench, Camp at Raipur(in[short][ "Tribunal")][ has][ been][ admitted][ on][ the][ following][ substantial]question of law: "Whether in the facts and drcumstances of the case.ffte Sncome Tax Appellaie Tribunal was justified sn !aw,in quashing the orcfer passec? uncfer Sectton 263 and inhotding that fhe assessmenf wder was not erroneousand prejudtcia! to tha interest of revenue though properand adequate inquiry w/as not macte by the AssessingOfficer before passing assessment order?" Briefly stated, facts of the case are that the assessee had shownincome frorn Long Term Capital Gain exceeding Rs. 2 lacs and claimedexemption under Section .10(38) of the Act for the assessment year2004-05. The Assessing Officer (in short "AO") completed assessmentunder Section 143(3) ofthfe Act. 2. Learned Commissioner, Incorne Tax (in short "CIT") exercising powersunder Section 263 of the Act noticed that the AO has compieted'adequateassessmentwithoutproperandenquiry,whichwaserroneous and prejudicial to the interest of the revenue, and therefore,setasidethesaidorderunderSection263formakingfreshassessment after conducting proper enquiry. 3. The assessee aggrieved by the order of the CIT, preferred appealbefore the Tribunai.Learned Tribunal ailowed the appealby theimpugned order with a finding that learned CIT was not justified inholding that the AO ailowed exemption under Section 10(38) of the Actwithout making proper enquiries, and further heid that the order of theAO cannot be heid to be erroneous or prejudicial to the interest of therevenue and the present case was not fit for invoking provisions ofSection 263 of the Act.before the Tribunai.Learned Tribunal ailowed the appealby theimpugned order with a finding that learned CIT was not justified inholding that the AO ailowed exemption under Section 10(38) of the Actwithout making proper enquiries, and further heid that the order of theAO cannot be heid to be erroneous or prejudicial to the interest of therevenue and the present case was not fit for invoking provisions ofSection 263 of the Act. Shri Rajeev Shrivastava, learned counsel for the appellant/revenue, oninstructlons from the department, before entering into merits of thecase, fairly submits that even if the order passed by learned CIT underSection 263 is upheld, tax effect invoived in this appeal is less than theminimum monetary timit of Rs.4 lac as fixed by the Central Board ofDlrect 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 lacs.instructlons from the department, before entering into merits of thecase, fairly submits that even if the order passed by learned CIT underSection 263 is upheld, tax effect invoived in this appeal is less than theminimum monetary timit of Rs.4 lac as fixed by the Central Board ofDlrect 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 lacs. Heard learned counse! for the parties. Heard learned counse! 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 tnstruction No.5/08 dated 15.5.2008,in supersession of the earlier instructions, instructed the income-taxauthoritiesregarding the monetary limits and conditions t'or fitingdepartmental appeais before the Appeilate Tribunals, High Courts andSupremeCourt.instructionNo.3deais withthemonetarylimits,Instruction No.4 defines the tax effect. whereas Instruetions No. 8 & 9mention the conditions, in which adverse judgments are to be contestedirrespective of the tax effect. As per above instructions, for filing appealbefore the High Court, the minimum monetary iimit has been fixed atRs.4 lacs.Thus, in view of the iatest instrucSion dated 15.5.2008 andSection 268A of the Act, we do not deem it necessary to go into themerlts of the case.Accordingly, the appeal is dismissed for havinglibie tax effect.instructions to the income-tax authorities by way of issuing circularsfrom time to time. The Board, vide tnstruction No.5/08 dated 15.5.2008,in supersession of the earlier instructions, instructed the income-taxauthoritiesregarding the monetary limits and conditions t'or fitingdepartmental appeais before the Appeilate Tribunals, High Courts andSupremeCourt.instructionNo.3deais withthemonetarylimits,Instruction No.4 defines the tax effect. whereas Instruetions No. 8 & 9mention the conditions, in which adverse judgments are to be contestedirrespective of the tax effect. As per above instructions, for filing appealbefore the High Court, the minimum monetary iimit has been fixed atRs.4 lacs.Thus, in view of the iatest instrucSion dated 15.5.2008 andSection 268A of the Act, we do not deem it necessary to go into themerlts of the case.Accordingly, the appeal is dismissed for havinglibie tax effect. Sd/-Dhirendra MishraR.N. ChandrakarJud.geJudge