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: C .N. RAMACHANDRAN NAIR & V.K. MOHANAN, JJ. -------------------------------------------- I. T. A. No. 263 OF 2009 -------------------------------------------- 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 submitted that 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 the department under Section 260A of the Act. Even though counsel for the respondent relied on instruction 5/08 dated 15.5.2008, standing counsel submitted that this circular does not apply to the appeals filed prior to 15.5.2008. We find force in this contention because clause (11) of the said circular states that all appeals filed before 15.5.2008 will be governed by instructions on this subject, operative at the time when such appeal was filed. We notice that the department itself filed Annexure D issued by the Central Board of Direct Taxes dated 27.10.2005 wherein the threshold limit for filing appeal to the High Court is Rs. 4 lakhs and even though four exceptions are provided for 2 dispensing with minimum tax effect for filing appeal, we do not find this appeal falls under any of the exception clauses because issue here is 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 of the Act, beyond the period of limitation with reference to original assessment. We therefore dismiss the appeal as one not maintainable. (C.N.RAMACHANDRAN NAIR) Judge. (V.K. MOHANAN) Judge. kk 3