The grievance of the Revenue is that the Tribunal ought to have entertained the appeal by following the decision of the Apex Court in the matter of Surya Herbal Ltd. (supra). However, the revenue has not been able to point out before us any of circumstance as laid down by the Suprme Court in the matter of Surya Herbal Ltd. (supra) being applicable to this case which would lead to non application of CBDT instructions No.3/2011.
HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INCOME TAX APPEAL (L) NO.396 OF 2013
The Commissioner of Income Tax
Versus
M/s. Sevak Pharma Pvt. Ltd.
DATE : 22nd March, 2013.
ORDER
This appeal for assessment year 2004-05 has been filed by the revenue against an order passed by the Tribunal on a Misc. Application. The revenue has raised the following question for our consideration:-
Whether on the facts and in the circumstances of the case and in law the Tribunal was justified in holding that Instruction No.3 of 2011 will apply to the pending appeals also?
2) On 18/11/2011, the Tribunal dismissed the revenue’s appeal having as the tax effect was less than Rs.3 lacs. This was in view of the CBDT instructions No.3/2011 dated 9/2/2011 which had revised the monetary limit for filing an appeal to Tribunal to Rs.3 lakhs. The Tribunal followed the decision of this Court in the matter of CIT v. Madhukar Inamdar (HUF) reported in 318 ITR 149 wherein it has been held that CBDT instructions fixing monetary limit for filing an appeal to Tribunal, would apply even to the pending cases.
3) The revenue thereafter moved a Misc. Application for rectification of order dated 18/11/2011 before the Tribunal. This application for rectification was on the basis of the Supreme Court decision in the matter of CIT v. Surya Herbal Ltd. rendered on 29/8/2011 wherein it has been held that CBDT instructions No.3/2011 would not apply ipso facto. The Apex Court held that above instructions would not apply where the matter has cascading effect or raises a common principle involving a large number of matters. The Tribunal dismissed the Misc. Application for rectification by the impugned order dated 5/10/2012 by relying upon the decision of this Court in the matter of Madhukar Inamdar (HUF)(supra).
4) The grievance of the Revenue is that the Tribunal ought to have entertained the appeal by following the decision of the Apex Court in the matter of Surya Herbal Ltd. (supra). However, the revenue has not been able to point out before us any of circumstance as laid down by the Suprme Court in the matter of Surya Herbal Ltd. (supra) being applicable to this case which would lead to non application of CBDT instructions No.3/2011.
5) In the above circumstances, we see no reason to entertain the proposed question of law.
6) Moreover, this Appeal is filed from an order rejecting a Misc. Application for rectification. An appeal from an order dismissing a Misc. Application for rectification is not maintainable as held by this Court in the matter of Chem Amit v/s. ACIT reported in 272 ITR 397.
7) Accordingly, the appeal is dismissed. No order as to costs.
(M.S.SANKLECHA, J.) (J.P. DEVADHAR, J.)
