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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 ..... ed 8.8.2019. Both CBDT Circular no. 23 of 2019 and special order dated 16.09.2019 were not in existence and thus not part of the record at the time when the matter was heard on 20.08.2019 or at the time of passing of order by the Tribunal on 22.08.2019 and therefore, non-consideration of subsequent CBDT Circular and the special order so passed by the CBDT is not a mistake apparent from record which can be rectified within the narrow compass of section 254(2) of the Act. In the result, miscellaneous application so filed by the Revenue is not maintainable. - M.A. No. 27/JP/2020 (Arising out of ITA No. 157/JP/2019) - - - Dated:- 9-12-2020 - Shri Sandeep Gosain, JM And Shri Vikram Singh Yadav, AM For the Assessee : Sh. P. C. Parw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he earlier CBDT Circular dated 8.08.2019 which was also issued by way of amendment to earlier circular no. 3 of 2018 and once the said circular has been issued, the Department is not precluded from filing its appeal and getting its appeal heard on merits and thus, the appeal so dismissed on account of low tax effect may be recalled and the matter be heard on merits. Further, reliance was placed on the decision of the Ahmedabad Benches of the Tribunal in case of ITO vs Satish M Patel (MA No. 377/Ahd/2019 arising out of ITA No. 948/Ahd/2019 dated 10.02.2020) and ITO vs Ambrish Chandra Sharma (MA No. 369/Ahd/2019 arising out of ITA No. 2484/Ahd/2018 dated 10.02.2020). 3. Per contra, the ld. AR submitted that on the basis of CBDT Circular dt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r contentions were raised by both parties, it would therefore be relevant to refer to the findings of the Coordinate Bench which are contained at para 4 to 11 which read as under:- 4. We have heard the rival contentions and purused the material available on record. The limited issue under consideration is whether CBDT Circular no. 23 of 2019 dated 6.09.2019 read with special order of the CBDT communicated vide office memorandum dated 16.09.2019 applies to the instant appeal and the case falls in exception of penny stock, and the matter which has been already been dismissed by the Tribunal on 2.09.2019, following CBDT s earlier circular dated 8.8.2019 on account of low tax effect, can be rectified under section 254(2) of the Act. 5. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 268A specifying monetary limits for filing of departmental appeals before Income Tax Appellate Tribunal (ITAT), High Courts and SLPs/appeals before Supreme Court. appeals may be filed on merits as an exception to said circular, where Board, by way of special order direct filing of appeal on merit in cases involved in organised tax evasion activity. 6. Pursuant to aforesaid circular, the special order has been passed by the CBDT, communicated vide office memorandum dated 16.09.2019 and the contents thereof read as under:- Subject: -Special Order of Board exempting cases involving bogus Long Term Capital Gains(LTCG)/Short Term Capital Loss (STCL) through penny stocks from monetary limits specified in any Circular issued under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long term capital gains and short term capital gains exemption through penny stocks, we find that the CBDT has since come out with a special order communicated vide office memorandum dated 16.09.2019 stating that monetary limits fixed for filing appeals in these cases before the Tribunal, High Court and Supreme Court shall not apply in case of assessee claiming bogus LTCG/STCG through penny stock and appeal shall be filed on merits. The special order thus talks about filing of appeal in such cases and therefore, it relates to any appeal in such cases which can be filed pursuant to such an order on and after the date of such special order and therefore doesn t contemplate a situation where the appeal which has already been filed prior to iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax effect may be low but the appeal can still be filed by the Revenue on merits. 10. In the instant case, the appeal of the Revenue was filed on 16.04.2019 and therefore, the present appeal was not filed pursuant to such a special order of the CBDT dated 16.09.2019 and thus, the matter doesn 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 and the appeal has thus rightly been dismissed by the Bench on account of low tax effect in light of CBDT s circular dated 8.8.2019. 11. In any case, both CBDT Circular no. 23 of 2019 and special order dated 16.09.2019 were not in existence and thus not part of the record at the time when the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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