IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 ITA.No. 189 of 2009() --------------------- ITA.1184/COCH/2004 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT/APPELLANT: -------------------- THE COMMISSIONER OF INCOME TAX(CENTRAL), COCHIN. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX RESPONDENT(S): --------------- M/S.ISLAND SEA FOODS PVT. LTD., ISLAND CLUB HOUSE, KOCHI-3. ADV. SRI.A.KUMAR FOR R1 THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & V.K.MOHANAN, JJ. .................................................................... I.T. Appeal No.189 of 2009 .................................................................... Dated this the 11th day of January, 2010. JUDGMENT Ramachandran Nair, J. Question raised in the appeal filed by the Revenue is as to whether Tribunal was justified in holding that appeal filed prior to 24.10.2005 is not maintainable for the reason that the tax effect is below Rs.2 lakhs. The appeal was filed by the Revenue prior to the issue of Circular No.2 of 2005 on 24.10.2005. Therefore, the Board's instruction applicable was the one issued on 27.3.2001 whereunder an appeal by the Revenue to the Tribunal is maintainable only if the tax effect is above Rs.1 lakh. Though the appeal filed was maintainable by virtue of the instruction that was in force as on the date of filing the appeal, the Tribunal still declined to entertain appeal following the decision of the Bombay High Court in COMMISSIONER OF INCOME-TAX VS. PITHWA ENGG. WORKS reported in (2005) 276 ITR 519 wherein it is held that revised Circular is applicable for pending appeals also. Standing Counsel rightly pointed out that the 2 finding of the Tribunal is contrary to the scheme of various instructions issued by the Board, whereunder the maintainability has to be considered with reference to the Circular in force as on the date of filing the appeal and not for pending appeals. In other words, subsequent Circulars enhancing the monetary limit for filing appeal will not make pending appeals infructuous or not maintainable. In fact, in Instruction No.5/2008 dated 15.5.2008 the Board has specifically stated that the maintainability of an appeal has to be considered with reference to the instruction in force as on the date of filing the appeal. In this case the higher ceiling limit of Rs.2 lakhs for filing appeal by the Department to the Tribunal was introduced on 24.10.2005 i.e. much after filing the appeal in 2004. We, therefore, allow the appeal, reverse the order of the Tribunal and restore the appeal to file for issuing notice to the parties for hearing and for disposal on merits. C.N.RAMACHANDRAN NAIR Judge V.K.MOHANAN Judge pms