TMI Blog2021 (3) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... ent And Shri Waseem Ahmed, Accountant Member For the Applicants : Shri L.P. Jain, Sr.DR For the Respondents : Shri M.K. Patel, AR And Shri Ankit Talsania, AR ORDER PER RAJPAL YADAV, VICE PRESIDENT: The present three miscellaneous applications are directed at the instance of the Revenue pointing out an apparent error in the order of the Tribunal dated 14/08/2019. 2. At the time of hearing, it was brought to our notice that identical issue has been considered by the ITAT in a large number of Misc. Applications, and a reference to order of the ITAT passed in MA No.401/Ahd/2019 and others was made. The Tribunal vide its order dated 9/9/2020 decided 13 Misc. applications. The discussion made by the Tribunal in its order dated 9.9.2020 reads as under: 2. It is pertinent to note that CBDT has issued Circular No.17 of 2019 dated 08/08/2019, whereby it was provided that appeals of the Revenue will not be maintainable before the Tribunal if tax effect involved by virtue of relief given by the CIT(A) is less than Rs.50 lakhs in each case. After issuance of this Circular, Tribunal has identified 628 appeals including Cross Objections, where tax effect by virtu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deem it appropriate to take note of this Office Memorandum also, which reads as under: OFFICE MEMORANDUM F.NO. 279/MISC./M-93/2018-ITJ(PT - SECTION 268A OF THE INCOME-TAX ACT, 1961 - FILING OF APPEALS OR APPLICATION FOR REFERENCE BY INCOME-TAX AUTHORITY - 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 OFFICE MEMORANDUM F.NO. 279/MISC./M-93/2018-ITJ(PT.), DATED 16- 9-2019 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 under section 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 assessees claiming bogus LTCG/STCL through penny stocks and appeals/SLPs in such cases shall be filed on merits. 4. On the strength of these Circulars (supra), the Department filed present Miscellaneous Applications and contended therein that where an assessee has claimed Long Term Capital Gain/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019, following CBDT's earlier circular dated 8.8.2019 on account of low tax effect, can be rectified under section 254(2) of the Act. 4. In this regard, we refer to CBDT Circular no. 23 of 2019 dated 6.09.2019, the contents thereof read as under: Subject: -Exception to monetary limits for filing appeals specified in any Circular issued under Section 268A of the Income-tax Act, 1961- reg Reference is invited to the Circulars issued from time to time by Central Board of Direct Taxes (the Board) under section 268A of the Income-tax Act, 1961 (the Act), for laying down monetary limits and other conditions for filing of departmental appeals 'before Income Tax Appellate Tribunal (TTAT). 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, JTATs and High Court have recognized the uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases, involving long term capital gains and short term capital gains exemption through penny stocks, there is a requirement for a special order to be issued by the CBDT and only where such a special order has been issued, the appeal shall be filed by the Department. 7. In cases involving long term capital gains and short term capital gains exemption through penny stocks, we find that the CBDT has since come out with a special order communicated vide office memorandum dated 16.09.2019 stating that monetary limits fixed for filing appeals in these cases before the Tribunal, High Court and Supreme Court shall not apply in case of assessee claiming bogus LTCG/STCG through penny stock and appeal shall be filed on merits. The special order thus talks about filing of appeal in such cases and therefore, it relates to any appeal in such cases which can be filed pursuant to such an order on and after the date of such special order and therefore doesn't contemplate a situation where the appeal which has already been filed prior to issuance of such a special order by the Revenue which shall be read and understood as filed pursuant to such special order. 8. We are conscious of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 254(2) of the Act. 9. Since there is no disparity on facts, therefore, respectfully following the decision of Coordinate Bench(supra), we do not find any merit in these miscellaneous applications filed by the Revenue. 10. In the result, all the Miscellaneous Applications filed by the Revenue are dismissed. 3. We find that verbatim applications have been filed in the present three cases. The stand of the Revenue is that after circular no.17/2019, the Department has issued circular no.23/2019 dated 6.9.2019. According to the new circular certain classes of cases have been carved out from availing of the benefit of circular no.17 of 2019. We have discussed this issue in our order dated 9.9.2020, and we have held that on 14.8.2019 when the appeals were dismissed on account of low tax effect involved in them by virtue of relief given by the CIT(A), the condition for exclusion of certain classes of cases was not available. Following our order dated 9.9.2020 extracted (supra), we find no merit in these misc. applications of the Revenue. They stand dismissed. 4. In the result, all the Misc. Applications of the Revenue are dismissed. This Order pronounced in Ope ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
