TMI Blog2021 (6) TMI 1065X X X X Extracts X X X X X X X X Extracts X X X X ..... led with the special order of the Board in future, and hence could not be construed to have retrospective effect. Tribunal interpreting the said Circular/ Office Memorandum in the impugned order has rightly observed that in respect of each case or category of cases whether an appeal should 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. 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 16.09.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered by the permissible exceptions or for any other reason. The petitioner filed Miscellaneous Applications including M.A. No. 77 of 2020 in case of the respondent, under Section 254(2) of the said Act, on the ground that the case was covered under the exception carved out under the CBDT Circular No. 23 of 2019 dated 06.09.2019. The Tribunal vide the impugned order dated 09.09.2019 dismissed the said Miscellaneous application alongwith the other Miscellaneous Applications. 3. The learned Senior Advocate Mr. M.R.Bhatt appearing for the petitioner vehemently submitted that the Tribunal had committed gross error by not entertaining the Miscellaneous Application filed by the petitioner under Section 254(2) of the said Act in view of the subsequent circular No. 23/2019 dated 06.09.2019 as well as the Office Memorandum No. 279 dated 16.09.2019. According to Mr. Bhatt, the CBDT had in supercession of the earlier circular dated 11.07.2018 prescribed minimum monetary limit at ₹ 20,00,000/for filing Appeal before the Appellate Tribunal, providing certain exceptions. The said Circular was made retrospectively applicable to all the pending appeals. The said circular dated 11.07.2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditions for filing of departmental appeals before Income Tax Appellate Tribunal (ITAT), High Courts and SLPs/appeals before Supreme Court. 2. Several references have been received by the Board that in large number of cases where organised tax evasion scam is noticed through bogus Long Term Capital Gain (LTCG)/Short Term Capital Loss (STCL) on penny stocks and department is unable to pursue the cases in higher judicial fora on account of enhanced monetary limits. It has been reported that in large number of cases, ITATs and High Court have recognized the unique modus operandi involved in such scam and have passed judgements in favour of the revenue. However, in cases where some appellate fora have not given due considerations to position of law or facts investigated by the department there is no remedy available with the department for filing further appeal in view of the prescribed monetary limits. 3. In this context, Board has decided that notwithstanding anything contained in any circular issued u/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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 16.09.2019 was in existence. Apart from the fact that the said circular and the Office Memorandum being not in existence and therefore not taken into consideration by the Tribunal while disposing all the Appeals could not be said to be a mistake apparent from the record as contemplated under sub-section (2) of Section 254 of the said Act, the Court also does not find any substance in the submission of Mr. Bhatt that the Tribunal should have recalled the order dated 14.08.2019 in view of the said Circular dated 06.09.2019 and the Office Memorandum dated 16.09.2019, which had retrospective effect. The Court at this juncture does not think it appropriate to deal with the facts of the case, as the main issue that falls for consideration before this Court in the present petition would be, as to whether the Circular dated 06.09.2019 and the Office Memorandum dated 16.09.2019 had any retrospective effect as sought to be submitted by learned Advocate Mr. Bhatt. 7. From the bare reading of the Circular dated 06.09.2019, it appears that the CBDT had decided that notwithstanding anything contained in any Circular issued under Section 268A specifying monetary limits for filing of depa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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