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TMI Blog2021 (3) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... DT as well as Special Order of the CBDT would not constitute an apparent mistake on record of the impugned order dated 21.08.2019 which can be rectified under section 254(2) of the Act. Hence the Miscellaneous Application filed by the revenue is not maintainable. - M.A. No. 06/JP/2020 (Arising out of ITA No. 842/JP/2010) - - - Dated:- 3-3-2021 - Shri Sandeep Gosian, JM And Shri Vikram Singh Yadav, AM For the Assessee : Written Submissions For the Revenue : Shri A..S. Nehra (Addl.CIT-DR) ORDER PER: SANDEEP GOSAIN, J.M. By way of this Misc. application, the revenue is seeking recalling of the order passed by the Tribunal dated 20/08/2019 in ITA No. 842/JP/2019 on the ground that this appeal falls in the Exceptions mentioned in para 2 (tax-evasion through bogus LTCG) of latest CBDT Circular No. 23 of 2019 dated 06/09/2019. 2. The hearing of the Misc. application was concluded trough video conference in view of the prevailing situation of Covid-19 Pandemic. 3. From perusal of the record, we found that ITA No. 842/JP/2019 was decided on account of low tax effect and while passing the order, operation portion of the order reads as under: 2. We hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all be dealt with separately. Accordingly, the appeal of the department is not maintainable being monetary limit is less than/not exceeding ₹ 50,00,000/-. 3. The department is at liberty to file the Miscellaneous Application in case the tax effect in this appeal is found to be more then ₹ 50,00,000/- or the case falls in any of the exceptions of the circular. 4. The revenue has filed present Misc. application on the ground that on perusal of the assessment records of the assessee for the year under consideration, it was found that the assessee is claimed exemption U/s 10(38) of the Income Tax Act, 1961 (in short, the Act) of capital gain whereas the A.O. made addition on account of long term capital gain and claimed exemption U/s 10(38) of the Act and also on account of commission paid for acquiring accommodation entry. It was further submitted that the order of the Tribunal requires rectification as this case falls in exception of penny stock specified in CBDT Circular No. 23 of 2019 dated 06/09/2019 and therefore, it was requested that the order of the Tribunal dated 21/08/2019 in ITA No. 842/JP/2019 may be recalled. The ld DR has also relied on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24th February, 2020 has considered an identical issue in para 4 to 11 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. In this regard, we refer to CBDT Circular no. 23 of 2019 dated 6.09.2019, the contents thereof read as under: Subject: -Exception to monetary limits for filing appeals specified in any Circular issued under Section 268A of the Income-tax Act, 1961-reg Reference is invited to the Circulars issued from time to time by Central Board of Direct Taxes (the Board) under section 268A of the Income-tax Act,1961 (the Act), for laying down monetary limits and other conditions for filing of departmental appeals before Income Tax Appellate Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 term capital gains exemption through penny stocks, there is a requirement for a special order to be issued by the CBDT and only where such a special order has been issued, the appeal shall be filed by the Department. 8. In cases involving 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 matter was heard on 23.08.2019 or at the time of passing of order by the Tribunal on 2.09.2019 and therefore, non-consideration of such 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. Thus the Tribunal has taken a view that the CBDT Circular No. 23 dated 6th September, 2019 as well as the CBDT Special Order dated 16th September, 2019 do not apply in the instant case as the same were not in existence at the relevant point of time of passing the impugned order. Accordingly in view of the earlier order of this Tribunal and to maintain the rule of consistency, we hold that the non-consideration of subsequent circular issued by the CBDT as well as Special Order of the CBDT would not constitute an apparent mistake on record of the impugned order dated 21.08.2019 which can be rectified under section 254(2) of the Act. Hence the Miscellaneous Application filed by the revenue is not maintainabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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