TMI Blog2021 (11) TMI 1058X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be filed in view of the Circular dated 06.09.2019 or not shall be decided by the Board by way of special order, and thus a specific requirement of issuance of special order by CBDT is a must. The Tribunal therefore has rightly held that the CBDT Circular No. 23/2019 dated 06.09.2019 should be read along with the Office Memorandum dated 16.09.2019, in respect of the appeals to be filed pursuant to such special orders of CBDT and shall apply to all the appeals filed on or after 16.09.2019 by the revenue, where the tax effect may be low but the appeal could still be filed by the revenue on merits. The appeals including the appeal in case of the respondent, which were disposed of by the Tribunal vide the common order dated 14.08.2019 could not be said to have been filed pursuant to the special order of the CBDT in view of the Circular dated 06.09.2019 read with the Office Memorandum dated 16.09.2019, and therefore it could not be said that the Tribunal had committed any mistake apparent from the record, which would require rectification as envisaged in Section 254(2) of the said Act. In that view of the matter, the Court does not find any illegality or infirmity in the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and allowed the appeal. 4. The Department challenged it before the ITAT the order of the CIT (Appeals). The Appeal came to be dismissed by the Tribunal of the Department on the low tax effect since the tax effect was to the tune of ₹ 28,31,997/- and the prescribed monetary limit of ₹ 50 Lakh for filing an appeal before the Tribunal. The Tribunal at the same time had given a liberty to the Department to seek recall of dismissal of appeal if the matter falls within the exceptions. 5. The appellant is before this Court seeking to question the Tribunal s order which according to the appellant, has overlooked the fact that the Assessee had claimed the bogus LTCG through penny stock and hence, it falls under the exception carved out in Circular No.23 of 2019 dated 06.09.2019 and OM dated 16.09.2019 which provided that the monetary limit for filing an appeal shall not apply to the cases where Assessee claimed bogus LTCG/LTCL through penny stock. Therefore, the aforementioned question of law before this Court. 6. We have heard the learned senior advocate, Mr.Manish Bhatt assisted by the learned advocate, Mr.Karan Sanghani. 7. This Court in Special Civil Applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (Neetika Bansal) Director (ITJ) CBDT, New Delhi. OFFICE MEMORANDUM F.No. 279/Misc./M-93/ 2018-ITJ(Pt.) Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes New Delhi, Dated:101 September, 2019 OFFICE MEMORANDUM 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 Section 268A of the Income Tax Act, 1961-reg. The undersigned is directed to refer to Circular No. 23 of 2019 dated 6th September, 2019 and to say that by virtue of powers of the Central Board of Direct Taxes u/s. 268A of Income Tax Act, 1961, the monetary limits fixed for filing appeals before ITAT/HC and SLPs/ appeals before Supreme Court shall not apply in case of assesses claiming bogus LTCG/STCL through penny stocks and appeals/ SLPs in such cases shall be filed on merits. (Abhis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Appellate Tribunal (ITAT), High Courts and SLPs/ Appeals before the Supreme Court, appeals may be filed on merits as the exception to the said Circular, where the Board by way of special order direct filing of appeals on merits in cases involved in organized tax evasion activity. The Office Memorandum dated 16.09.2019 was issued pursuant to the said circular dated 06.09.2019 stating inter alia that by virtue of the powers of CBDT under Section 268A of the Income Tax Act, the monetary limits fixed for filing appeals before ITAT/High Court and SLPs/Appeals before Supreme Court shall not lie in case of assessees claiming bogus LTCG/STCL through penny stocks and appeals/ SLPs in such cases appeals shall be filed on merits. There is nothing to suggest in the said Circular/ Office Memorandum that they shall have retrospective effect. On the contrary, from the language employed in the said Circular dated 06.09.2019, it clearly transpires that the appeals may be filed on merits as an exception to the other Circulars issued earlier, where the Board by way of special order direct filing of Appeals on merits in the cases involved in organized tax evasion activity. Therefore, by virtue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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