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TAXAP/636/2008 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No.636 of 2008
To
TAX
APPEAL No.642 of 2008
===================================================
THE
COMMISSIONER OF INCOME TAXCENTRAL-II - Appellant(s)
Versus
MULCHAND
F SHARMA - Opponent(s)
===================================================
Appearance
:
MR MANISH R BHATT for Appellant(s)
: 1,
None for Opponent(s) :
1,
===================================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 24/09/2008
COMMON
ORAL ORDER
(Per
: HONOURABLE MR.JUSTICE D.A.MEHTA)
The
appellant-revenue has proposed the following identically worded
question in each of these appeals:
?SWhether
the Appellate Tribunal was
right in law and on facts in dismissing the appeal without going
into the merits of the case on the ground that the tax effect
involved is less than Rs.2 lakh i.e., which is below the monetary
limit prescribed by the Board???
Heard
the learned Senior Standing Counsel for appellant-revenue. It was
submitted that vide Paragraph
No.21 of the judgment of this High Court rendered on
05.08.2008 in the case of The Commissioner of Income-tax Vs.
Concord Pharmaceuticals, in Tax Appeal No.1402 of 2007 to 1405
of 2007 and cognate matters, the High Court has permitted the
Revenue to move an appropriate application before the Tribunal
for deciding the appeals on merits and similar permission may be
granted. Paragraph
No.21 of the judgment reads as under:
?S21. There
is no dispute about the fact that where substantial 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 Tribunal 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. However, on this ground the
matters cannot be remanded to the Tribunal directing the Tribunal to
decide the same afresh. If no objections are raised by the
departmental representative at the time of hearing of the appeal
against the applicability of the Circular despite there being an
exception, the Department has missed the bus and second inning
cannot be granted for that purpose. However, in matters 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
indulgence is required to be shown by this Court and for this
limited purpose, the Department is permitted to move an appropriate
application before the Tribunal for deciding the appeal on merits.
?S
In
light of the aforesaid observations by the High Court it is left
open to appellant-revenue to file appropriate application in
accordance with law, if the same is permissible on facts and in law.
Subject to aforesaid, the appeals are dismissed as the principal
issue otherwise stands concluded by the aforesaid judgment of this
High Court.
Registry
to place a copy of this order in connected matters.
Sd/-
[D. A.
MEHTA, J]
Sd/-
[BANKIM
N. MEHTA,J]
***
Bhavesh*
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