TMI Blog2021 (10) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... ls were decided on 14.8.2019 and the impugned circular came on 6.9.2019. In other words, appeals were decided by the Tribunal including that of the present assessee on 14.8.2019 i.e. prior to the circular issued by the Board on 6.9.2019, and 16.9.2019. Therefore, the judgment of Hon ble High Court is fully applicable on the facts of the present case and accordingly, MA of the Revenue has no merit. It is dismissed. - Misc. Application No.27/Ahd/2020 IN ITA No.1838/Ahd/2013 - - - Dated:- 5-10-2021 - Shri Rajpal Yadav, Vice-President And Shri Waseem Ahmed, Accountant Member For the Revenue : Shri Purshottam Kumar, Sr.DR For the Assessee : Shri Vivek Chauda, AR ORDER PER RAJPAL YADAV, VICE-PRESIDENT Present Misc. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ptions mentioned under clause 10(c) of the CBDT s circular No.3/2018 dated 11.7.2018 and subsequent letter dated 20.8.2018 and circular No.23/2019 dated 6.9.2019 and its clarification dated 16.9.2019, further appeal is recommended even though tax effect is below the threshold limit prescribed by the CBDT s circular dated 8.8.2019. The fresh clarification circular dated 6.9.2019 of the Board has carved out certain exceptions, and in view of this circular, appeal of the Revenue with regard to the deletion of additions made under section 68 of the Act by disallowing the claim of exemption of long term/short term capital gain will be maintainable. In other words, where the issue of addition under section 68 of the Act in respect of bogus claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess of reasoning on points, on which there may conceivably be two opinions. For fortifying this view, we make reference to the decision of the Hon ble jurisdictional High Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ld., 262 ITR 146 which has been upheld by the Hon ble Supreme Court reported in 305 ITR 227. The Hon ble Court has laid down following proposition while concluding the judgment: (a) The Tribunal has power to rectify a mistake apparent from the record on its own motion or on an application by a party under s. 254(2) of the Act; (b) An order on appeal would consist of an order made under s. 254(1) of the Act or it could be an order made under sub-s. (1) as amended by an order under sub-s. (2) of s. 254 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded by the Hon ble Gujarat High Court in SCA No.7520/2021. It reads as under: 5. The petitioner-original applicant having filed the Miscellaneous Application before the Tribunal under Section 254(2) of the said Act for rectifying the mistake apparent from the record, it would be also beneficial to reproduce the relevant part of Section 254(2) of the said Act: 254. Orders of Appellate Tribunal (1) *** (2) The Appellate Tribunal may, at any time within six years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer 6. So far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T had decided that notwithstanding anything contained in any Circular issued under Section 268A specifying monetary limits for filing of departmental appeals before the Income 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 Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 8. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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