The court emphasized the interpretation of the provisions of Section 80HHC of the IT Act and its application to the facts and circumstances of the case.

1. This appeal by the assessee filed under Section 260A of the IT Act, 1961 (for short, the Act) is directed against the order dt. 26th Sept., 2002, passed by the Income-tax Appellate Tribunal (hereinafter, referred to as the Tribunal), whereby the appeals filed by the Revenue against the order of Commissioner of Income-tax(Appeals) [for brevity, the CIT(A)] were allowed and the claim of the assessee rejected.

2. According to the learned counsel for the appellant, the following three substantial questions of law are involved in the appeal and, therefore, the same deserves to be admitted :

(i) Whether the Tribunal on the facts and in the circumstances of the case erred in law in not dismissing the appeals of the Department/Revenue in view of the Boards Circular No. F. No. 279/126/98-ITJ, dt, 27th March, 2000 ?

(ii) Whether, on an application of the correct principles of law and in view of the judicial pronouncements of the Supreme Court and High Court(s), was the Tribunal justified in law in holding that the income of the assessee appellant on account of temporary leasing of asset for commercial exploitation was taxable under the head "Property Income" and not "Business Income" ?

(iii) Whether on a correct and proper interpretation of the provisions of Section 80HHC of the Act and application thereof to the facts and circumstances of the case, was the Tribunal legally correct in holding that the claim for deduction in respect of income from FDRs was not sustainable despite contrary and consistent view having been expressed by the Bombay High Court in the case of CIT v. Paramount Premises (P) Ltd. (1991) 190 ITR 259 (Bom) and CIT v. Nagpur Engg. Co. Ltd. (2000) 245 ITR 806 (Bom) against which the SLP of the Deptt./Revenue stood dismissed as reported in (2000) 244 ITR (St) 54 ?

3. Having heard the learned counsel for the appellant, we are of the view that none of the question raised is a question of law much less a substantial question of law and, therefore, the appeal deserves to be dismissed.

4. As regards question No. (i), it is urged that in view of the Boards Circular No. F-279/126/98-ITJ, dt. 27th March, 2000, the appeals filed by the Department were not maintainable because the tax effect did not exceed Rs. 1,00,000 in each assessment year and, therefore, according to the circular, the Department could not prefer an appeal. From the perusal of the order of the Tribunal, it is clear that no such plea was raised before the Tribunal and, therefore, we are not allowing the assessee to raise this plea for the first time before us. In any case, the Boards circular is only an instruction issued to the IT authorities not to file appeals where the tax effect is less than Rs. 1,00,000. The Tribunal is not bound by any such instruction and once the Department files an appeal, the Tribunal was bound to decide the same on merits. This question, in our opinion, is not a question of law. Re. (ii):

5. The assessee had purchased land with building for Rs. 46,60,000 on 11th April, 1992 and the total investment of Rs. 14,80,319 had been made during the relevant assessment year for further construction of the building. This property was let out to its sister concern, M/s Swati H/L Industries in which the assessees husband and her sons were partners, Its income was shown under the head, "business income". The assessing authority treated this income as "rental income" since the property had been leased out and the same was taxed under the head, "property income." The CIT(A) reversed the finding and the Tribunal, in appeal, affirmed the finding of the AO. Since the property had been leased out to the sister concern and the assessee was receiving rent therefrom, the assessing authority as well as the Tribunal were right in holding that the income received by way of rent, could not be treated as "business income" particularly when leasing out of such properties was not the business of the assessee. This issue also does not involve any subs