IN INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT Before Shri A.L. Gehlot (AM) and Shri N.R.S. Ganesan (JM) I.T.A. No.264 & 265/Rjt/2006 (Assessment years 1993-94 & 1994-95) ITO, Wd.1(4) vs M/s RB Rathod & Co Rajkot C/o Hotel Jewel Limda Chowk, Rajkot PAN : AAHFR9294A (Appellant) (Respondent) Date of hearing : 07-09-2011 Date of pronouncement : 09-09-2011 Appellant by : Shri MK Singh Respondent by: Shri JC Ranpura ORDER Per AL Gehlot, AM These appeals of revenue are directed against order of CIT(A)-I, Rajkot dated 22-03-2006 pertaining to assessment years 1993-94 and 1994-95. 2. Ground No.1 is in respect of penalty u/s 271(1)(c) of Rs.32,000 for assessment year 1993-94 and Rs.53,764 for assessment year 1994-95. 3. These appeals filed by revenue on 14-06-2006 and first time fixed for hearing on 27-07-2006. These appeals were heard on 29-08- 2006 and kept for orders. These appeals were again fixed on 15-07-2011 for hearing dated 05-09-2011. On 05-09-2011 registry put note that these appeals were heard on 29-08-2006 by Rajkot Bench constituted 2 ITA No.264 & 265/Rjt/2010 by Shri DT Garasia (JM) and Shri Sanjay Arora (AM). draft order is placed on appeal files but bench has neither passed order nor released matter. These appeals were released to registry without any note or order. On 05-09-2011 bench asked both parties to submit factual position of matter as per their record whether they received any order or appeals are still pending for disposal. assessee, vide his letter dated 05-09-2011 and revenue vide their letter dated 06-09-2011 submitted that these appeals are still pending and they have not received any order. In light of fact both appeals have been heard. ld.DR submitted that tax effect in both appeals are less than Rs. 3 lakhs. 4. After hearing lde.DR we find that under such circumstances ITAT, Rajkot has dismissed revenue s appeal in limine in ITA No.647/Rjt/2010 dated 18-03-2011. relevant finding is reproduced as under: 2. We have heard learned representatives of parties and perused record. ld.AR of assessee placed before us copies of Board s instructions No.5/2008 dated 15-5-2008 and No.3/2011 (F.No.279/MISC.142/2007-ITJ) dated 9-2-2011 and pointed out that Board has expressly prohibited department from filing appeal before Tribunal in case where tax effect is less than Rs.3 lakhs. ld.DR pointed out that in instruction No. 3/2011 (.No.279/MISC. 142/2007-ITJ) dated 09-02- 2011 it has been clearly stated at paragraph 11 that these instructions will apply only in respect of appeals filed on or after 15- 05-2008 and this appeal is filed before instruction is issued. said clause reads as follows: 11. This instruction will apply to appeals filed on or after 15th of May 2008. However, cases where appeals have been filed before 15th of May 2008 will be governed by instructions on this subject, operative at time when such appeal was filed. 3 ITA No.264 & 265/Rjt/2010 3. On other, ld.AR filed comparative chart of both instructions, i.e. instructions instructions No.5/2008 dated 15-5- 2008 and No.3/2011 (F.No.279/MISC.142/2007-ITJ) dated 9-2- 2011. He submitted that in instruction dated 15-05-2008 similar clause was already there. Apart from this, Bombay High Court in case of CIT vs Pithwa Engg Works 276 ITR 519 (Bom) held that Central Board of Direct Taxes by its circular dated March 27,2000, has taken policy decision not to file references if tax effect is less than Rs.2 lakhs. circular is applicable even to old references which are still undecided. Department cannot contend that circular is binding only with respect to new cases and not with respect to old referred cases even if tax is less than Rs.2 lakhs. same policy for old matters needs to be adopted by Department. In light of judgment of Bombay High Court we find that instruction dated 09-02-2011 is applicable to appeals filed before issuance of instruction dated 09-02-2011. 4. In this view of matter, and in light of judgment of Bombay High Court cited supra, we dismiss appeal filed by revenue as not maintainable since tax effective involved in appeal is below Rs.3 lakhs. 5. We follow above order of ITAT and in light of that appeal filed by revenue is dismissed in limine. Order pronounced in open court on 09-09-2011. Sd/- sd/- (N.R.S. Ganesan) (A.L. Gehlot) JUDICIAL MEMBER ACCOUNTANT MEMBER Rajkot, Dt : 09th September, 2011 pk/- copy to: 1. Assessee 2. Revenue 3. CIT(A)-I, Rajkot 4. CIT-I, Rajkot 5. DR, I.T.A.T., Rajkot (True copy) By order Asstt.Registrar, ITAT, Rajkot Income-Tax Officer- Ward-1(4) v. M/s. R. B. Rathod & Co