Amitava Roy, J.

1. This appeal under Section 260A of the IT Act, 1961 (for short hereinafter referred to as the Act) has been filed against the order dt. 9th April, 2008, of the Income-tax Appellate Tribunal, Guwahati Bench, Guwahati (for short hereinafter referred to as the Tribunal) rendered in ITA No. 74/Gau/2007. By the order impugned, the appeal filed by the Respondent-Assessee was allowed.

2. While admitting the appeal, the following substantial question of law was framed:

Whether in a case of reassessment under Section 147 of the IT Act, 1961 where the foundation of the belief that any income chargeable to tax has escaped assessment is the charge-sheet filed against the Assessee in a criminal Court, the IT authorities should await the verdict of the criminal Court or make the assessment independent of the outcome of the criminal trial?

3. The pleaded facts, in short, are that the Respondent-Assessee is one of the persons named in the charge-sheet filed by the Central Bureau of Investigation (hereinafter referred to as "CBI") for his alleged involvement in defalcation of public money in CBI Case No. RC 1/94 of AC U-II, dt. 17th May, 1994. The assessment for his income by the aforementioned order was duly completed whereafter on the quantification of the total assessable income of Rs. 2,77,790, the tax liability was determined to be Rs. 1,34,184.

4. Being aggrieved, the Respondent-Assessee filed an appeal before the CIT(A-II), Guwahati and the appeal was disposed of on 18th Dec, 2006, rejecting the same and confirming the assessment made. The Respondent-Assessee thereafter carried the issue to the learned Tribunal which passed the impugned order dt. 9th April, 2008 in ITA No. 74/Gau/2007. Thereby, the learned Tribunal remitted the matter to the file of the AO for reassessment in the light of decision of the criminal Court after providing reasonable opportunity of hearing to the Respondent-Assessee. In effect, the appeal was thus allowed.

5. The Revenue is in appeal contending, inter alia, that income-tax proceeding being separate and distinct from the criminal proceeding, the assessment of tax liability can by no means be held up or deferred till the final decision is taken in the latter. The impugned order of the learned Tribunal, therefore, has been assailed to be in derogation of the scheme of the Act.

6. At the threshold, the maintainability of the instant appeal has been questioned by the Respondent-Assessee, on the basis of Instruction No. 5 of 2008, dt. 15th May, 2008 (2008) 7 DTR (St) 17 : (2008) 217 CTR (St) 1] of the CBDT.

7. We have heard Mr. U. Bhuyan, learned Counsel for the Revenue and Mr. R. Goenka, learned senior Counsel for the Respondent-Assessee.

8. Mr. Goenka by relying on Section 268A of the Act as well as the CBDT instruction referred to hereinabove has submitted that as in the instant case, the tax effect is less than Rs. 4,00,000, fixed as the mandatory limit for preferring an appeal under Section 260A before this Court, the instant appeal is per se not maintainable in law and is liable to be dismissed in limine. Contending that the instruction issued by the CBDT under Section 268A is binding on the Revenue, as has been held in a catena of decisions of the apex Court on the issue, the instant appeal is misconceived. The learned Counsel to reinforce this plea has drawn the attention of the Court to the memorandum explaining the objective behind the enactment of Section 268A contending that as the same is to regulate filing of appeal contemplated by the Revenue under the Act, its right to that effect as embodied in Section 260A is understandably circumscribed thereby. Mr. Goenka has urged that the scope and ambit of the appeal under Section 260A vis-a-vis the Revenue have thus been curtailed by Section 268A.

Mr. Goenka has further urged that exception to the regulation imposed by Instruction No. 5 of 2008 as contained in para 8 having been provided being aware of the precondition of existence of substa