MISC. APPEAL No.90 of 2000 With MISC.APPEAL No.91 of 2000 Against the order dated 31.08.1999 passed by Single Member Bench of Income Tax Appellate Tribunal, Patna Bench,Patna in I.T.A.No.676/Pat/1996 with respect to assessment year 1992-93. -------- COMMISSIONER OF INCOME TAX & Anr----------------Appellant (in M.A.No.90/2000) Versus UMA KANT MISHRA----------------------------------------Respondents & COMMISSIONER OF INCOME TAX----------------------------Appellant (in M.A.No.91 of 2000) Versus SMT. PARWATI DEVI KHETAN-------------------------------Respondent ---------- For the Appellant: --- Mr. Harshwardhan Pd. Sr. Standing counsel For the respondent : - --------- M/s. K.N. Pandey, advocate Vikash Jain,Advocate. ------------- P R E S E N T THE HON'BLE MR. JUSTICE CHANDRAMAULI KR PRASAD THE HON'BLE DR. JUSTICE RAVI RANJAN Prasad & Ranjan, JJ Both the appeals arise out of an order passed by the Patna Bench of the Income Tax Tribunal. Both the appeals have been admitted by order dated 3.9.2003 on the following substantial question of law; “Where interest is to be levied on the tax determined on the basis of return income or on the assessed income in view of the amendments made in sections 234A and 234B of the Income Tax Act”? - 2 - When the matter is taken up Mr. Vikash Jain appearing on behalf of the respondent assessee prays for dismissal of the appeal only on the ground that in view of insertion of section 268A of the Income Tax Act, by Finance Act 2008 with effect from 1.4.1999 read with the notification of Central Board of Direct Taxes dated 8.10.1992 fixing the monetary limit for filing these appeals, these appeals are not fit to be entertained and adjudicated. It is not in dispute that tax / revenue effect in both the cases, is less than Rs. 50,000/- each. It is further not in dispute that the Central Board of Direct Taxes vide notification dated 28.10.1992 had decided not to make any reference before the High Court where the revenue effect is less than Rs.50,000/-. It is further not in dispute that another notification dated 27th March 2000 has been issued by the Central Board of Director in which the following decision has been taken; “In supersession of the above instruction, it has now been decided by the Board that appeals will be filed only in cases where the tax effect exceeds the revised monetary limits given hereunder:- - 3 - Rs. (i) Appeal before the Appellate Tribunal(in income-tax Matters) 1,00,000 (ii)Appeal under section 260A/ reference under section 256(2) before the High Court 2,00,000 (iii) Appeal in the Supreme Court” 5,00,000 It has been pointed out by Mr. Jain that instruction issued by the Board fixing monetary limits for filing appeal and application for reference shall be deemed to have been issued under sub-section 1 of section 268A of the Income Tax Act in view of the provision made in section 268A(5) of the Act. Hence, according to Mr. Jain both the appeals involving tax effect of less than Rs.50, 000/- each deserves to be thrown out on the ground that it violates the Board’s instruction. Mr. Harshwardhan Prasad, however, contends that though the notification of the Central Board of Direct Taxes dated 28th October 1992 is binding on the revenue but the said notification prohibits making reference when tax effect is less than Rs. 50,000/- but does not bar filing of the appeal. This ingenious argument of Mr. Prasad deserves to be rejected out right. It is relevant here to state that on the date i.e. 28th - 4 - October, 1992 when the Central Board of Direct Taxes issued the instruction, there was no provision for appeal before the High Court. Section 260A of the Income Tax Act which provides for appeal to High Court has been inserted by Finance (No.2) Act 1998 with effect from 1.10.1998. In the circular dated 27th of March 2000 the tax effect exceeding revised monetary limits has been provided for filing the appeal under section 268A and reference under section 256(2) of the Income Tax Act before the High Court. In the back ground of the aforesaid, it cannot be said that the monetary limits fixed for reference shall not apply in the case of appeal. It is worth mentioning that the instruction of the Central Board of Direct Taxes dated 28.10.1992 shall be deemed to have been issued under section 268A (1) of the Income Tax Act in view of section 268A (5) of the Act. Thus the instruction dated 28.10.1992 fixing monetary limit for filing appeal has statutory flavour and in the back ground thereof we are of the opinion that these appeals are incompetent. In the result, we dismiss these appeals - 5 - Patna High Court 15th Sept.2008 Rahman/NAFR on the aforesaid ground alone, but without any order as to costs. (Chandramauli Kr.Prasad,J) (Dr. Ravi Ranjan,J) - 6 - - 7 - - 8 - - 9 - - 10 - - 11 - - 12 - Patna High Court 15th Sept.2008 Rahman/ (NAFR)