The ITO, Ward-4(1), Ahmedabad V. Gujarat Telephone Cables Pvt. Ltd., Ahmedabad

ITA 3588/AHD/2007

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9132 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-09-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 31-08-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEETA SHAH SENIOR
• Keywords: Question of law; Difference of opinion; Tax effect; TDS

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' (BEFORE S/SHRI P K BANSAL AND MAHAVIR SINGH) ITA NO.3588/AHD/2007 WITH C O NO.349/AHD/2007 [ASSESSMENT YEAR: 2003-04] INCOME-TAX OFFICER, WARD-4(1), AHMEDABAD V/S GUJARAT TELEPHONE CABLES LTD., GTCL HOUSE, B/H RATNAM BUILDING, OFF. C G ROAD, AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY :- SMT. NEETA SHAH, SENIOR DR RESPONDENT BY:- NONE O R D E R PER P K BANSAL (ACCOUNTANT MEMBER): THIS APPEAL BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE A RE ARISING OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-T AX (APPEALS)-VIII, AHMEDABAD [CIT(A) FOR SHORT] DATE D 27-06- 2007 FOR AY 2003-04. THE EFFECTIVE GROUND RAISED BY THE REVENUE READS AS UNDER: THE LD. CIT(A) ERRED IN LAW AND ON THE FACTS OF TH E CASE IN DIRECTING THE AO TO DELETE THE DISALLOWANCE OF RS.7,74,687/- MADE BY THE AO OUT OF INTEREST PAYMENT ON ACCOUNT OF DIVERSION OF FUNDS AS INTEREST FREE ADVANCES TO VARIOUS PARTIES. 2 2 IN THE CROSS OBJECTION FILED BY THE ASSESSEE, TH E FOLLOWING EFFECTIVE GROUNDS HAVE BEEN RAISED BY THE ASSESSEE:- 1 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VI II, AHMEDABAD HAS ERRED IN LAW AS WELL AS ON FACTS BY C ONFIRMING THE DISALLOWANCE OF RS.75,39,90,000/- IN RESPECT OF STO CK WRITTEN OFF. 2 THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-VI II, AHMEDABAD HAS ERRED IN LAW AS WELL AS ON FACTS BY C ONFIRMING THE DISALLOWANCE OF RS.1,47,09,926/- IN RESPECT OF PRIO R PERIOD EXPENSES. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE FIN D THAT IN THIS CASE THE REVENUE EFFECT IN THE APPEAL FILED BY THE REVENUE IS BELOW RS.2 LAKHS AS THE ASSESSMENT HAS BEEN COMP LETED AT LOSS. THIS LIMIT HAS BEEN INCREASED BY THE CIRCULAR OF TH E BOARD DATED 24TH OCTOBER, 2005 AND, THEREFORE, THE APPEAL SHOUL D NOT BE ENTERTAINED IN VIEW OF THE BOMBAY HIGH COURT DECISI ON IN THE CASE OF PITHWA ENGGG. WORKS 276 ITR 519. 4. THE LEARNED DR POINTED OUT THAT NEITHER THE CIR CULAR NOR THE DECISION IN THE CASE OF PITHWA ENGG. WORKS 276 ITR 519 WILL HAVE ANY APPLICATION. HE ALSO RELIED ON THE DE CISIONS OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASES OF RANI PALIWAL V CIT 268 ITR 220 (P&H) AND CIT V. ABHISHEK INDUSTRIES LTD. (2006) 286 ITR 1 (P&H) . 5. AFTER HEARING THE LEARNED DR AND PERUSING RECOR D, WE FIND THAT THE REVENUE EFFECT INVOLVED IN THE PRESEN T APPEAL FILED BY THE REVENUE IS LESS THAN RS.2 LAKHS, AND THEREFO RE, THE APPEAL IS NOT MAINTAINABLE IN THE LIGHT OF THE DECISION OF THE ITAT IN THE 3 CASE OF ASSTT. CIT V. RAJOO ENGINEERS LTD (RAJKOT) [ 2006] 100 LTD 555 (RAJKOT). IN THE SAID CASE THE FACTS ARE THAT CONSEQUENT UPON THE DIRECTION ISSUED BY THE COMMISS IONER (APPEALS) TO ALLOW THE ASSESSEE-COMPANYS CLAIM UND ER SECTION 8OHHC WITHOUT EXCLUDING DEDUCTION ALLOWED UNDER SEC TIONS 80-I AND 80G, THE IMPUGNED ADDITION MADE ON THAT ACCOUNT IN EXCESS OF RS. 1 LAKH STOOD DELETED. THOUGH THE REVENUE FIL ED THE APPEAL ON 21-6-2005 WHEN THE MONETARY LIMIT FOR FILING THE APPEAL WAS PRESCRIBED BY THE CBDT AT RS. 1 LAKH, THE ASSESSEE S CONTENTION WAS THAT THE SAID LIMIT HAS BEEN INCREASED BY THE C BDTS SUBSEQUENT CIRCULAR DATED 24-10-2005 AND, THEREFORE , THE APPEAL SHOULD NOT BE ENTERTAINED IN VIEW OF THE HIGH COURT S DECISION IN THE CASE OF CITY. PITHWA ENGG. WORKS [2005)276 ITR 519 (BORN.). THE REVENUE ,HOWEVER, CONTENDED THAT THE NEW LIMIT APPLIES ONLY TO APPEALS FILED AFTER 30-10-2005 AND THE AFORESAID DECISION OF THE HIGH COURT HAD NO APPLICATION FOR T HE INCREASED LIMIT UNDER THE NEW CIRCULAR, AND THAT IN ANY CASE, THE INSTANT CASE WAS COVERED BY THE EXCEPTION PROVIDED IN CLAUS E 3 OF THE SAID CIRCULAR SINCE THERE INVOLVED A SUBSTANTIAL QU ESTION OF LAW. THE ITAT HELD AS UNDER : IT IS TRUE THAT THE HIGH COURT DECISION IN CIT V. PITHWA ENGG. WORKS [2005] 276 ITR 519] WAS NOT DEALING WITH THE NEW LIMIT OF THE CIRCULAR DATED24-10-2005. IT WAS W ITH REFERENCE TO THE EARLIER CIRCULAR WHERE REFERENCE W AS NOT REQUIRED TO BE FILED TO THE HIGH COURT IF THE TAX E FFECT WAS LESS THAN RS. 2 LAKHS. THE CONTENTION OF THE REVENU E IN THAT CASE WAS THAT RS. 2 LAKHS LIMIT WAS INCREASED BY CI RCULAR DATED 27-3 -2000 AND PRIOR TO THAT, THE LIMIT WAS O NLY RS. 50,000 AND THE CONTENTION OF THE REVENUE WAS THAT T HE NEW LIMIT WOULD NOT BE APPLICABLE TO THE OLD REFERENCES . THE HIGH COURT REJECTED THE SAID CONTENTION OF THE REVE NUE. 4 IN THOSE CIRCUMSTANCES, THOUGH THE SAID HIGH COURT DECISION DID NOT DEAL WITH THE CIRCULAR DATED 24-10-2005, BUT IT HAD DEALT WITH THE EARLIER CIRCULAR AND THE LIMITS OF THAT CIRCULAR WERE APPLIED EVEN TO THE CASES WHICH WERE PRIOR TO THE OLD CIRCULAR. THEREFORE, THE RATIO OF THAT DECISION WAS APPLICABLE IN THE INSTANT CASE AS WELL. THE CBDT HAS TAKEN A POLICY DECISION NOT TO FILE APPEALS IN SUCH TYPE OF CASES AND THE CIRCULAR IS BINDING ON THE REVENUE EVEN TO APPEALS FILED BEFORE 31-10-2005 AND THE DEPARTMENT WOULD NOT BE JUSTIFIED IN PROCEEDING WITH THOSE APPEALS WITHIN THE MONETARY LIMIT OF TAX EFFECT PRESCRIBED IN THE CIRCULAR DATED 24-10-2005. WE HAVE ALSO GONE THROUGH THE DECISION OF THE SPECI AL BENCH IN THE CASE OF PEERLESS DEVELOPERS LTD. (SUPRA). WE FI ND THAT IN THIS CASE IT HAS BEEN HELD AS UNDER: CBDT INSTRUCTION NO.1979, DATED 27-3-2000 STATES T HAT WHERE THE TAX EFFECT IN AN APPEAL IS LESS THAN RS.2 LAKH, THE DEPARTMENT SHOULD NOT FILE ANY APPEAL BEFORE THE TR IBUNAL. THE AO IN THE ASSESSMENT MADE FOR THE ASSESSMENT YE AR 1997-98 HAD ADDED THE SUM OF RS.69,84,089 WHILE DETERMINING THE INCOME OF THE ASSESSEE FOR THE ASSE SSMENT YEAR 1997-98, BUT IN THE ASSESSMENT YEAR 1996-97 HA D NOT ALLOWED DEDUCTION FOR THE SUM OF RS.69,84,089 CLAIM ED BY THE ASSESSEE. THUS, IF THE ADDITION IN THE YEAR UND ER APPEAL WAS UPHELD AND, CONSEQUENTLY, THE REVENUE HAD TO DE LETE THE ADDITION MADE IN THE ASSESSMENT YEAR 1997-98 OR VIC E VERSA, THE TAX EFFECT OF THE SAME WOULD BE ZERO, IN VIEW OF THE FACT THAT THE INCOME DETERMINED IN THE ASSESSME NT YEAR 1996-97 WAS LOSS OF RS.5,74,69, 643 AND THE INCOME DETERMINED IN THE ASSESSMENT YEAR 1997-98 WAS ALSO A LOSS OF RS.2,76,81,893. FURTHER, SIMILAR ISSUE IN THE H ANDS OF THE ASSESSEE ITSELF WAS DECIDED IN FAVOUR OF THE AS SESSEE FOR THE ASSESSMENT YEARS 1993-94, 1995-96 AND 1997-98 T O 1999-2000 AND THE DEPARTMENT HAD ACCEPTED THE SAID DECISION OF THE TRIBUNAL, AS REVENUE COULD NOT BRIN G ANY 5 MATERIAL TO SHOW THAT ANY APPEAL WAS PREFERRED TO T HE HIGH COURT AGAINST THOSE ORDERS. IN THE CIRCUMSTANCES, A S THE ISSUE WAS ALREADY A DECIDED ISSUE AND COUPLED WITH THE FACT THAT THE TAX EFFECT ON THE SAME WAS NIL, THE ISSUE EVEN IF INVOLVED A QUESTION OF LAW, THE SAME COULD NOT BE T REATED AS A SUBSTANTIAL QUESTION OF LAW. CONSEQUENTLY, THE APPEAL FILED BY THE REVENUE WAS N OT MAINTAINABLE AND WAS REQUIRED TO BE DISMISSED. IN THE RESULT, THE APPEAL OF THE REVENUE WAS TO BE DISMISSED IN LIMINE. THE FACTS BEING SIMILAR, BY FOLLOWING THE ABOVE DEC ISION OF THE SPECIAL BENCH OF ITAT, WE DISMISS THE APPEAL OF THE REVENUE AS NOT MAINTAINABLE THE REVENUE EFFECT INVOLVED BEING LESS THAN RS.2 LAKHS. OUR AFORESAID VIEW IS SUPPORTED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V CONC ORD PHARMACEUTICALS, JUDGMENT DATED 05-08-2008 IN TAX A PPEAL NOS.1402 TO 1405 OF 2007, WHEREIN IT HAS BEEN HELD AS UNDER: 17. HAVING HEARD LEARNED COUNSELS APPEARING FAR T HE RESPECTIVE PARTIES AND HAVING GONE THROUGH THE RELEVANT STATUT ORY PROVISIONS, JUDGMENTS OF VARIOUS COURTS AND CIRCULARS ISSUED BY THE BOARD FROM TIME TO TIME, WE ARE OF THE VIEW THAT SUBJECT TO CE RTAIN DIRECTIONS, WHICH ARE ISSUED HEREINAFTER, ALL THESE TAX APPEALS DESERVE TO BE DISMISSED AND THEY ARE ACCORDINGLY DISMISSED AS NO QUESTION OF LAW, MUCH LESS, ANY SUBSTANTIAL QUESTION OF LAW ARISES O UT OF THE ORDER OF THE TRIBUNAL. IN ALMOST AU CASES THE TRIBUNAL HAS D ISMISSED THE APPEALS ONLY ON THE GROUND OF LOW TAX EFFECT, WITHO UT ENTERING INTO MERITS OF THE MATTER. WHILE DISMISSING THE APPEALS, THE TRIBUNAL HAS REFERRED TO THE CIRCULAR ISSUED BY THE CENTRAL BOAR D OF DIRECT TAXES PRESCRIBING THE MONETARY LIMIT. THE APPEALS FILED B Y THE DEPARTMENT IN CONTRAVENTION OF SUCH CIRCULARS PRESCRIBING THE MON ETARY LIMIT WERE ORDERED TO BE DISMISSED. ALMOST ALL COURTS ARE AGRE EABLE ON THIS ISSUE. 6 18. THE REAL CONTROVERSY AROSE WHEN CERTAIN EXCEPT IONS ARE CARVED OUT IN THE CIRCULARS AND DESPITE THE FACT THAT MANY OF THESE CASES BEFORE THE TRIBUNAL ARE COVERED BY THOSE EXCEPTIONS , WHICH REQUIRE THE TRIBUNAL TO GO INTO THE MERITS OF THE MATTER, THE T RIBUNAL HAS STRAIGHTWAY DISMISSED THOSE APPEALS. THERE IS A CLE AVAGE OF OPINION AMONGST THE DIFFERENT COURTS ON THIS ISSUE. ONE VIE W IS THAT WHILE APPLYING THE CIRCULAR ISSUED BY THE BOARD, THE TRIB UNAL HAS TO TAKE INTO CONSIDERATION AS TO WHETHER THE EXCEPTIONS CAR VED OUT IN THE CIRCULAR APPLY TO THE CASE ON HAND AND IF ANY OF TH OSE EXCEPTIONS IS APPLICABLE IN THAT CASE THE TRIBUNAL WILL HAVE TO I GNORE THE MONETARY LIMIT AND DECIDE THE APPEAL AN MERITS. IN KODANAND TEA ESTATE COS CASE (SUPRA), BEFORE THE TRIBUNAL, THE APPLICABILIT Y OF THE CIRCULAR WAS QUESTIONED. THE MADRAS HIGH COURT, THEREFORE, TOOK THE VIEW THAT THE QUESTION COMES WITHIN THE AMBIT OF EXCEPTION AND TH E TRIBUNAL WAS DIRECTED TO HEAR APPEAL ON THE MERITS. 19. ANOTHER VIEW IS THAT IF ANY PARTICULAR CIRCULAR IS PRESSED INTO SERVICE SEEKING DISMISSAL OF APPEAL ON THE GROUND O F LOW TAX EFFECT AND IF NO OBJECTION IS RAISED BY THE DEPARTMENT EIT HER IN THE APPEAL MEMO OR AT THE TIME OF HEARING OF APPEAL, THE TRIBU NAL IS NOT BOUND TO CONSIDER AS TO WHETHER EXCEPTIONS ARE APPLICABLE OR NOT. IN SMT. MADHU BAI LODHAS CASE (SUPRA) THE M.P. HIGH COURT TOOK THE VIEW THAT IN A CASE WHICH FALLS WITHIN THE EXCEPTED CATE GORY, IT WOULD ALWAYS BE OPEN TO THE DEPARTMENT TO BRING IT TO THE NOTICE OF THE FORUM APPROACHED AND TO INSIST THAT THE QUESTION BEING CO VERED BY THE EXCEPTIONS CONTAINED IN THE CIRCULAR, THE SAME DESE RVES TO BE CONSIDERED. IN A RAJENDRA PRASAD &ORS., CASE (SUPRA), THE AP. H IGH COURT TOOK THE VIEW THAT IN CASE THE DEPARTMENT FINDS A CERTAI N MATTER TO BE AGITATED BY WAY OF AN APPEAL ALTHOUGH IT FALLS WITH IN THE MONETARY LIMITS OF THE CIRCULARS, THE DEPARTMENT SHOULD CLEA RLY PLEAD IN THE MEMO OF APPEAL ITSELF THAT THE APPEAL FAILS UNDER T HE EXCEPTIONS. IN ABSENCE OF SUCH A PLEADING IN THE MEMO OF APPEAL, N ORMALLY APPEAL SHOULD NOT BE ENTERTAINED. IN KURIAN ABRAHAM PVT LTDS CASE (SUPRA) THE HONBL E SUPREME COURT TOOK THE VIEW THAT WHENEVER ANY BINDING CIRCU LAR IS ISSUED BY THE BOARD GRANTING ADMINISTRATIVE RELIEF, AS LONG A S SUCH CIRCULAR REMAINS IN FORCE, IT IS NOT OPEN TO THE SUBORDINATE OFFICERS TO CONTEND THAT THE CIRCULAR IS ERRONEOUS AND NOT BINDING ON T HEM. IF SUCH A 7 CONTENTION IS TO BE ACCEPTED, FT WOULD LEAD TO CHAO S AND INDISCIPLINE IN THE ADMINISTRATION OF TAX LAWS. IN INDIAN OIL CORPORATION CASE (SUPRA) THE HONBLE SUPREME COURT LAID DOWN CERTAIN PROPOSITIONS OF LAW IN RELATION T O THE BINDING NATURE OF CIRCULARS ISSUED BY THE BOARD. THE COURT HELD TH AT DESPITE THE DECISION OF THIS COURT, THE DEPARTMENT CANNOT BE PE RMITTED TO TAKE A STAND CONTRARY TO THE INSTRUCTIONS ISSUED BY THE BO ARD AND THAT IT IS NOT OPEN TO THE REVENUE TO ADVANCE AN ARGUMENT OR FILE AN APPEAI CONTRARY TO THE CIRCULARS. 20. THERE IS ALSO DIFFERENCE OF OPINION AMONGST TH E COURTS WITH REGARD TO THE APPLICABILITY OF THE CIRCULAR. IF, ON THE DATE OF FILING OF AN APPEAL, A CIRCULAR IS NOT IN FORCE OR CERTAIN EXCEP TIONS ARE NOT THERE OR MONETARY LIMIT IS LESS THAN WHAT WAS THERE AT THE T IME OF DECIDING THIS APPEAL, IN SUCH CASES, THE TRIBUNAL WILL HAVE TO GI VE DUE WEIGHTAGE TO THE PROVISIONS CONTAINED IN THE CIRCULAR PREVALENT ON THE DATE OF FILING OF APPEAL AND NOT ON THE DATE OF THE DECISION OF TH E APPEAL. IN CHHAGAR PACKAGING & PLASTICS (P) LTD.S CASE (SUPRA) THE BO MBAY HIGH COURT TOOK THE VIEW THAT CIRCULARS / INSTRUCTIONS ISSUED BY THE BOARD ARE APPLICABLE ONLY PROSPECTIVELY AND IF THERE IS NO RE FERENCE TO THEIR APPLICABILITY TO THE PENDING MATTERS, SUCH PENDING MATTERS CANNOT BE DECIDED ON THE BASIS OF CIRCULARS/INSTRUCTIONS. IN PITHWA ENGINEERING WORKS CASE (SUPRA) THE BOMBA Y HIGH COURT TOOK THE VIEW THAT TAKING JUDICIAL NOTICE OF THE MO NEY VALUE HAVING GONE DAWN AND COST OF LITIGATION EXPENSES HAVING GO NE UP AS WELL AS HUGE PENDENCY OF CASES, THE BOARD SHOULD EVOLVE A P OLICY OF APP1YING THE CIRCULARS EVEN TO THE OLD REFERENCES WHICH ARE STILL V UNDIVIDED. THE DEPARTMENT SHOULD NOT HAVE PROCEEDED WITH THE A PPEALS / REFERENCES WHEREIN THE TAX IMPACT IS MINIMAL, IRRES PECTIVE OF THEIR DATE OFF FILING. 21. THERE IS NO DISPUTE ABOUT THE FACT THAT WHERE S UBSTANTIAL QUESTION OF LAW OF IMPORTANCE IS INVOLVED OR WHERE QUESTION OF LAW IS REPEATEDLY ARISING OR WHERE THE ISSUE IS COVERED BY THE JUDGMENT OF TERRITORIAL HIGH COURT OR SUPREME COURT, THE TRIBUN AL WILL HAVE TO DECIDE THE APPEAL ON MERITS AND IN TERMS OF THE LAW DECLARED BY THE SUPREME COURT OR BY THE TERRITORIAL HIGH COURT. HOW EVER, ON THIS GROUND THE MATTERS CANNOT BE REMANDED TO THE TRIBUN AL DIRECTING THE TRIBUNAL TO DECIDE THE SAME AFRESH. IF NO OBJECTION S ARE RAISED BY THE DEPARTMENTAL REPRESENTATIVE AT THE TIME OF HEARING OF THE APPEAL 8 AGAINST THE APPLICABILITY OF THE CIRCULAR DESPITE T HERE BEING AN EXCEPTION, THE DEPARTMENT HAS MISSED THE BUS AND SE COND INNING CANNOT BE GRANTED FAR THAT PURPOSE. HOWEVER, IN MAT TERS WHERE SUCH OBJECTIONS ARE RAISED AND DESPITE THOSE OBJECTIONS OR WITHOUT DEALING WITH THOSE OBJECTIONS IF THE TRIBUNAL HAS DISMISSED THE APPEAL ONLY ON THE GROUND OF LOW TAX EFFECT, IN SUCH MATTER, AN IN DULGENCE IS REQUIRED TO BE SHOWN BY THIS COURT AND FOR THIS LIMITED PURP OSE, THE DEPARTMENT IS PERMITTED TO MOVE AN APPROPRIATE APPL ICATION BEFORE THE TRIBUNAL FOR DECIDING THE APPEAL ON MERITS. 22. WE ARE OF THE VIEW THAT SIMPLY BECAUSE THE APP EAL IS FLIED B THE DEPARTMENT IN CONTRAVENTION OF THE CIRCULAR THE TRI BUNAL IS RIOT BOUND TO DECIDE THE. APPEAL ON MERITS. DUE WEIGHTAGE SHOU LD INVARIABLY BE GIVEN BY THE TRIBUNAL TO THE CIRCULAR ISSUED BY THE BOARD. EVEN OTHERWISE, THE NEWLY INSERTED PROVISIONS CONTAINED IN SECTION 268A(4) MAKE IT OBLIGATORY FOR THE TRIBUNAL TO CONSIDER SUC H CIRCULAR. IT IS NOT OPEN FOR THE DEPARTMENT TO CONTEND THAT CIRCULARS A RE INTERNAL MATTERS OF THE DEPARTMENT AND ASSESSEE CANNOT OBJECT TO FIL ING OF AN APPEAL ON THE BASIS OF SUCH CIRCULAR. IT IS TRUE THAT FILING OF AN APPEAL IS A STATUTORY RIGHT BUT IT CAN CERTAINLY BE REGULATED B Y THE BOARD BY ISSUANCE OF ORDERS, INSTRUCTIONS OR CIRCULARS. THIS WOULD NOT AMOUNT TO TAKING AWAY THE RIGHT OF FILING OF APPEAL OR THAT S UCH RIGHT IS PROHIBITED BY EXECUTIVE INSTRUCTIONS. SECTION 268A(1) OF THE A CT NOW RECOGNIZES SUCH RIGHT OF THE BOARD TO REGULATE THE FILING OF A PPEAL OR APPLICATION BEFORE THE TRIBUNAL OR THE COURT. IT IS ALSO TRUE T HAT WHEN THE HONBLE SUPREME COURT OR THE TERRITORIAL HIGH COURT HAVE DE CLARED THE LAW ON A QUESTION, IT IS NOT OPEN TO THE TRIBUNAL TO DIREC T THAT THE CIRCULAR ISSUED BY THE BOARD PRESCRIBING THE MONETARY LIMIT SHOULD BE GIVEN EFFECT TO AND NOT THE DECISION OF HONBLE SUPREME C OURT OR THE TERRITORIAL HIGH. COURT. IT IS, HOWEVER, EQUALLY TR UE THAT THE TRIBUNALS ATTENTION MUST BE DRAWN BY THE DEPARTMENTAL REPRESE NTATIVE TO SUCH DECISION OF THE HONBLE SUPREME COURT OR THE HIGH C OURT. AN OBJECTION MUST BE RAISED BY THE DEPARTMENTAL REPRES ENTATIVE. 23. CONSIDERING ALL THE AFORESAID ISSUES WE DISMIS S ALL THESE TA APPEALS RESERVING LIBERTY TO THE DEPARTMENT ONLY ON THOSE CASES TO APPLY TO THE TRIBUNAL TO DECIDE THE APPEAL ON MERIT S WHERE THE OBJECTIONS WERE RAISED BEFORE THE TRIBUNAL EITHER I N THE APPEAL MEMO OR AT THE TIME OF HEARING OF APPEAL RAISING A SPECI FIC CONTENTION THAT A PARTICULAR APPEAL IS COVERED BY AN EXCEPTION AND DE SPITE THIS OBJECTION THE TRIBUNAL HAS NOT DEALT WITH THE SAID CONTENTION AND DISMISSED THE APPEAL ON THE GROUND OF LOW TAX EFFECT. IT IS EXPEC TED FROM THE 9 TRIBUNAL TO CONSIDER THIS BROAD PARAMETERS WHILE AP PLYING THE RELEVANT CIRCULAR TO THE FACTS OF THE CASE AT THE TIME OF DE CIDING APPEALS. 24. SO FAR AS TAX APPEAL NOS.496, 545, 547, 548, 5 50 AND 704 OF 2007 ARE CONCERNED, THIS COURT WHILE ADMITTING ALL THESE APPEALS ON 10.10.2007 HAS ALSO FRAMED ONE MARE SUBSTANTIAL QUE STION OF LAW WHICH IS AS UNDER - WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE , THE TRIBUNAL WAS JUSTIFIED IN HOLDING THAT THE EXCISE DUTY LEVIED AN CLOSING STOCK SHOULD NOT BE TAKEN INTO ACCOUNT FOR VALUATION CT THE CLOS ING STOCK? 25. SINCE THE TRIBUNAL HAS DISMISSED ALL THESE APP EALS FILED BY THE DEPARTMENT ONLY ON THE GROUND OF LOW TAX EFFECT AND HAS NOT DECIDED THIS ISSUE ON MERITS NOR THE DEPARTMENTAL REPRESENT ATIVE HAD RAISED ANY OBJECTION ON THIS ISSUE, WE DO NOT GIVE ANY FINDING ON THIS ISSUE. 26. SUBJECT TO THE AFORESAID CLARIFICATION AND OBS ERVATIONS ALL THESE APPEALS ARE ACCORDINGLY DISMISSED WITHOUT ANY ORDER AS TO COSTS. 6 OUR AFORESAID VIEW IS ALSO SUPPORTED BY THE DECI SION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V MANGLAM RICINUS LTD. (2008) 174 TAXMAN 186 (DELHI), THE HEA D NOTE OF WHICH READS AS UNDER: SECTION 253 OF THE INCOME-TAX ACT, 1961 APPELLAT E TRIBUNAL APPEALS TO ASSESSMENT YEAR 2002-03 ASSESSING OF FICER DISALLOWED CERTAIN AMOUNT BEING INTEREST LIABILITY CLAIMED BY ASSESSEE SAID VIEW WAS REVERSED BY COMMISSIONER (APPEALS) ON REVENUES APPEAL, TRIBUNAL OPINED THAT EVEN IF ORDER OF ASSE SSING OFFICER WAS UPHELD, INCOME OF ASSESSEE WOULD BE NEGATIVE AND, T HEREFORE, THE TAX EFFECT WOULD BE CERTAINLY LESS THAN RS.1 LAKH - TH US, TRIBUNAL, RELYING ON INSTRUCTIONS ISSUED BY CENTRAL BOARD OF DIRECT T AXES, WHICH PRESCRIBE THAT IF TAX EFFECT IS LESS THAN RS.1 LAKH , NO APPEAL SHOULD ORDINARILY BE FILED BEFORE TRIBUNAL, DECLINED TO EN TERTAIN APPEAL WHETHER, ON FACTS, VIEW TAKEN BY TRIBUNAL WAS CORRE CT HELD, YES. 10 7 IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED AS NOT MAINTAINABLE. THE CROSS OBJECTION FILED BY T HE ASSESSEE HAS BECOME ACADEMIC AND, THEREFORE, THE SAME IS ALSO DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17-09-2009 SD/- SD/- (MAHAVIR SINGH) JUDICIAL MEMBER (P K BANSAL) ACCOUNTANT MEMBER DATE : 17-09-2009 COPY OF THE ORDER FORWARDED TO : 1. GUJARAT TELEPHONE CABLES LTD., GTCL HOUSE, B/H RATNAM BUILDING, OFF. C G ROAD, AHMEDABAD 2. ITO, WARD-4(1), AHMEDABAD 3. THE CIT CONCERNED 4. THE CIT(A)-VIII, AHMEDABAD 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY.R/A R, ITAT, AHMEDABAD