TMI Blog2020 (11) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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.Miscellaneous application filed by the Revenue is dismissed. - MA No.22/JP/2020 (Arising out of ITA No. 749/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 Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A) was right in deleting the addition of ₹ 1,36,63,228/- made by the AO on the basis of incriminating documents and accepted in the statement u/s 132(4) and statement u/s 131, on account of investment in shares was made out of books. - 4 Whether on the facts and in the circumstances of the case and in law, the CIT(A) was justified in holding that the statement recorded u/s 132(4) 131 of the Income tax Act, 1961 cannot be considered as an incriminating material found and seized during the search. - 5 Whether on the facts and in 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been issued by the CBDT only on 6.09.2019 after passing of the order of the Tribunal on 21.08.2019 and further, in the said circular, the CBDT has stated that it has decided that the appeal may be filed on merits as an exception to said circular, where the Board by way of special order direct filing of appeal on merits in cases involved in organized tax evasion activity. It was submitted that the said circular has to be read in respect of future appeals and not appeals which have already been disposed off by the Tribunal and secondly, the Board has to issue a special order directing filing of an appeal on merits in such cases. It was further submitted that the Board has 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 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. 5. 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 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. 6. On reading of the aforesaid circular no. 23 of 2019 so issued by the CBDT, we find that the CBDT has decided that notwithsta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 no. 23 of 2019 should be read along with special order of the CBDT dated 16.09.2019 in respect of appeals filed pursuant to such special order and shall thus apply to all appeals filed on or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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