Appeal dismissed by High Court as Tax effect is less than 20 lakh

By | February 18, 2016

HIGH COURT OF CALCUTTA

Commissioner of Income-tax, Kolkata-I

v.

Indo Tossa (P.) Ltd.

SOUMITRA PAL AND MIR DARA SHEKO, JJ.

IT APPEAL NO. 17 OF 2008

DECEMBER  16, 2015

P. Dudhoria, Adv. for the Appellant. R. Bharadwaj, Adv. for the Respondent.

ORDER

1. The Court – This appeal under Section 260A of the Income Tax Act, 1961 was admitted on the following substantial question of law :—

“I. Whether on the facts and in the circumstances of the case the Learned Tribunal erred in law in reversing the orders passed by Commissioner of Income Tax (Appeals) and assessing officer and holding that the assessee is eligible for deduction under Section 10B of the Income Tax Act, 1961 without considering that the assessee had not complied with any of the requirements for availing of the deduction under section 10B of the Act Viz manufacturing or producing any article or thing, should be an approved 100% export oriented Unit by Board of Central Government and/or the business has not been formed by splitting up or reconstruction of a business already in existence etc.”

2. It is submitted by Mr. Bharadwaj, learned advocate for the respondent that since the tax effect in this appeal is Rs. 15,32,504/- as evident from the order of the Assessing Officer at page 36 of the application, in view of the Circular No. 21 of 2015 dated 10th December, 2015, issued by the CBDT fixing a monetary limit of Rs. 20 lakhs for filing of cases before the High Court which is with retrospective effect, as seen from paragraph 10 thereof and as the appeal does not come within the exceptions as stated at paragraphs 8 and 9 therein, the matter may be disposed of in the light of the said circular.

3. Mr. Dudhoria, learned advocate for the appellant, submits that though the tax effect in this appeal is Rs. 15,32,504/- he has no written instruction from the Commissioner of Income tax for withdrawing this appeal. However, on a query he submits that any circular of the Central Board of Direct Taxes issued under Section 268A of the Income Tax Act, 1961, in view of section 119(1) of the said Act, is binding on the department.

4. Since the tax effect in this appeal is Rs. 15,32,504/- and since the monetary limit of Rs. 20 lakhs is fixed for filing appeals before the High Court by the Department as per Circular which has been issued with retrospective effect and as Mr. Dudhoria submits that he has no written instruction from the Department for withdrawing this appeal, as the said Circular, in view of Section 119(1) is binding on the departmental authority, the appeal is treated to be dismissed as withdrawn.

5. It is made clear that this order of dismissal is passed pursuant to the Circular and we have not gone into the merits of the matter.

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