TMI Blog2020 (5) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... as heard on 20.08.2019 or at the time of passing of order by the Tribunal on 21.08.2019 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. - MA No. 24/JP/2020 (Arising out of ITA No. 751/JP/2019) - - - Dated:- 20-3-2020 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Sh. S. R. Sharma (C.A.) And Sh. R. K. Bhatra (CA) For the Revenue : Smt. Runi Pal ( JCIT) ORDER PER: VIKRAM SINGH YADAV, A.M. The present miscellaneous application has been filed by the Revenue against the order passed by the Tribunal in ITA No. 751/JP/2019 dated 21.08.2019. In the miscellaneous Application, the Revenue has requested to rectify the mistake u/s 254(2) of the Act by recalling the earlier order passed by the Tribunal with the following prayer:- In this connection, it is submitted that the Hon ble ITAT has dismissed the appeal of Revenue in light of the CBDT s Circular vide No. 17/2019 dated 08.08.2019 wherein the monetary limit for filing appeal before the following authorities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the circumstances of the case and law, the CIT(A) was justified in holding that the assessee filed retraction against the statement given u/s 132(4) during the search as well as post search proceedings, however the retraction was filed after 14 months without supporting evidences and also not reported during the search proceedings. - 6 Whether on the facts and in the circumstances of the case and in law the CIT(A) is justified in allowing the appeal of the assessee holding that in absence of any incriminating material, the completed assessment can t be interfered with by the AO and completed assessment can be interfered with by the AO and completed assessment can be interfered with by the AO while making assessment u/s 153A only on the basis of some incriminating material unearthed during the course of search which were not produced or not already disclosed. - 7 Whether on the facts and in the circumstances of the case and in law the CIT(A) is right in not accepting the decision of Hon ble High Court, Jaipur in the case of Shri Roshan Lal Sancheti, Bhilwara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since issued an office memorandum dated 16.09.2019 whereby the CBDT through a special order passed u/s 268A of the Act has held that the monetary limits fixed for filing appeals before ITAT/HC and SLPs/appeals before the Supreme Court shall not apply in case of assessee claiming bogus LTCG/STCL through penny stocks and appeals/SLPs in such cases shall be filed on merits. It was submitted that even the aforesaid special order of the CBDT has been issued only on 16.09.2019 much after passing of the order in the instance case by the Tribunal and in any case, it talks about filing of appeals on merits and therefore, doesn t apply to appeals already filed and dismissed by the Tribunal. 3. 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 21.08.2019, following CBDT s earlier circular dated 8.8.2019 on account of low tax effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. On reading of the 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 term capital gains exemption through penny stoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after 16.09.2019 by the Revenue where the tax effect may be low but the appeal can still be filed by the Revenue on merits. 9. In the instant case, the appeal of the Revenue was filed on 22.05.2019 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. 10. 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 20.08.2019 or at the time of passing of order by the Tribunal on 21.08.2019 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. In the result, the Miscellaneous application filed by the Revenue is dismissed. Order pronounced in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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