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TMI Blog2021 (1) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... idering the information received from Investigation Unit, Delhi and report of SEBI. During the year under consideration, it was clearly found that the assessee has taken accommodation entry of Rs. 1,11,00396/- in the form of LTCG and paid commission of Rs. 2,22,008/- hence this is the case of penny stock and falls under exception to monetary limits for filing appeals specified as per CBDT's circular no. 23 of 2019 dated 6th September 2019. Consideration the above mentioned facts and despite the tax effect involved in the case being Rs. 26,56,605/- which is below the limit prescribed by the Board vide Circular No. 17/2019 for filing appeal before the Tribunal, it is prayed as per section 254(2) of the Income Tax Act, 1961 that the order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2019 was issued on 06.09.2019 and therefore, the appeal in this case have been decided well before the circular dated. 06.09.2019 issued by CBDT in which it was mentioned that the monetary limit will not be applicable in the cases of penny stock cases and it is therefore not a case of mistake apparent on record at the time of passing of the order by the Tribunal. It was further submitted that similar issue has been decided by the Jaipur Benches of the Tribunal in the case of DCIT Circle-2 vs Sh. Surendra Patni in M.A No. 68/JP/2019 dated 24.02.2020 and the facts are similar to the above case decided by the Jaipur Bench and the same may be followed and the misc. application filed by the Department be dismissed. 4. Heard the rival content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of departmental appeals before Income Tax Appellate Tribunal (ITAT). High Courts and. SLPs/appeals before Supreme Court. 2. Several references have been received by the Board that in large number of cases where organised tax-evasion scam is noticed through bogus Long-Term Capital Gain (LTCG)/Short Term Capital Loss (STCL) on penny stocks and department is unable to pursue the cases in higher judicial fora on account of enhanced monetary limits. It has been reported that in large number of cases, ITATs and High Court have recognized the unique modus operandi involved in such scam and have passed judgments in favour of the revenue. However, in cases where some appellate fora have not given due consideration to position of law or facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid circular no. 23 of 2019 so issued by the CBDT, we find that the CBDT has decided that notwithstanding monetary limits for not filing/pursuing appeals in terms of any circular already issued under section 268A of the Act specifying the monetary limits, the appeals by the Revenue can still be filed on merits in cases involving organized tax evasion activity. However, in respect of which all cases or category of cases, such appeal can be filed shall be decided by way of a special order passed by the CBDT. There is thus a specific requirement for issuance of a special order by the CBDT and therefore, unlike general exceptions carved out from filing appeals on merits, in these cases, involving long term capital gains and short ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d therefore, where the appeal has already been filed by the Revenue and is pending, such appeal has been held to be covered by a subsequent low tax effect circular and dismissed on account of low tax effect. However, in the instant case, the issue is regarding carving out an exception from such low tax effect limits and that too, not just by a general order but by way of a special order where such appeals can be filed, therefore, unless the special order has been passed by the CBDT and an appeal is filed pursuant to such a special order, the exception cannot be read and understood to apply to existing appeals which have already been filed prior to issuance of the special order. Therefore, we are of the considered view that the CBDT Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the CBDT dated 16.09.2019 and as the matter didn't fall in any exception as so prescribed by the CBDT in its earlier circular dated 8.8.2019 and the special order doesn't apply in the instant case, the appeal was rightly dismissed by the Coordinate Bench on account of low tax effect in light of CBDT's circular dated 8.8.2019. We find that this particular aspect of the matter that the CBDT Circular dated 16.09.2019 is by way of a special order and the appeal has been directed to be filed by virtue of such special order has apparently not been considered in other cases relied upon by the Revenue in case of Satish M Patel and Ambrish Chandra Sharma (supra). Further, we find that the decision in said cases has also been guided by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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