Hon'ble Vinod Kumar Misra,J.
Order on Review Application The delay in filing the Review/Recall Application is condoned.
We have heard the learned counsel for the Income Tax Department on the review application and Sri Krishna Agarwal, learned counsel for the respondent.
The appeal was dismissed relying upon the decision of the Court dated 6.5.2015 passed in Income Tax Appeal No.172 of 2004, Commissioner of Income Tax-II, Agra and another Vs. Shyam Biri Works, Allahabad.
The review application has been filed on the ground that the Supreme Court has passed an order dated Ist July,2015 in Civil Appeal No.4919 and 4920 of 2015, wherein the orders of the Delhi High Court were set aside and the matter was remitted back to the Delhi, High Court with the observation to consider paragraph-11 of the instructions dated 9.2.2011,which provided that the said instructions would govern those cases which were filed after 2011. Based on the said decision of the Supreme Court, the Central Board of Direct Taxes has issued a circular dated 27th August, 2015 directing the standing counsels to bring the order of the Supreme Court to the notice of the High Court.
We have perused the instructions so issued by the Central Board of Direct Taxes as well as the decision of the Supreme Court dated Ist July, 2015. The judgement given by this Court in Shyam Biri Works, Allahabad (supra) dated 6.5.2015 has considered paragraph-11 of the instructions dated 9.2.2011 and held that the instructions would also apply to pending appeals filed before 9.2.2011. We also find that a recall application on similar lines was filed in Income Tax Appeal No.167 of 2012 by the Income Tax Department in Commissioner of Income Tax, Ghaziabad v. Smt. Asha Modi, which recall application was dismissed by our order dated 1.9.2015. Inspite of the dismissal of the recall application, the Income Tax Department has still filed the present recall application.
Once the Court has observed that instructions of 9.2.2011 was considered in its earlier judgement, it was not open to the department to raise the same issue again in subsequent review applications.
In view of the aforesaid, we do not find any merit in the review application and the same is hereby rejected.
Order Date :- 12.1.2016 IB (Vinod Kumar Misra,J) (Tarun Agarwala,J)