INCOME TAX OFFICER, WARD-4-3, JAIPUR V. SHRI MANISH SWAMI, JAIPUR

MA 06/JPR/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9430 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-03-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 17-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA
• Assessee Lawyers: WRITTEN SUBMISSIONS DHK
• Keywords: Rule of consistency; Assessment record; Tax effect; Penny stocks; Capital Gains
• Section: 268A; 254(2)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A JAIPUR JH LANHI XKSLKBZ ] U;KF;D LNL; ,O A JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSIAN, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 06/JP/2020 (ARISING OUT OF VK;DJ VIHY LA- @ ITA NO. 842/JP/2010 FU/KZKJ.K O'KZ @ ASSESSMENT YEAR : 2014-15. INCOME TAX OFFICER, WARD 4(3), JAIPUR. CUKE VS. SHRI MANISH SWAMI, A-201, KEWAL MARG, SHIV NAGAR, MURLIPURA, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN NO. BBZPS 7619 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI A..S. NEHRA (ADDL.CIT-DR) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : (WRITTEN SUBMISSIONS) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 18/12/2020 ?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 03/03/2021 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. BY WAY OF THIS MISC. APPLICATION, THE REVENUE IS SEEKING RECALLING OF THE ORDER PASSED BY THE TRIBUNAL DATED 20/08/2019 IN ITA NO. 842/JP/2019 ON THE GROUND THAT THIS APPEAL FALLS IN THE EXCEPTIONS MENTIONED IN PARA 2 (TAX- EVASION THROUGH BOGUS LTCG) OF LATEST CBDT CIRCULAR NO. 23 OF 2019 DATED 06/09/2019. 2. THE HEARING OF THE MISC. APPLICATION WAS CONCLUDED TROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. 2 MA NO. 06/JP/2020 ITO VS MANISH SWAMI 3. FROM PERUSAL OF THE RECORD, WE FOUND THAT ITA NO. 842/JP/2019 WAS DECIDED ON ACCOUNT OF LOW TAX EFFECT AND WHILE PASSING THE ORDER, OPERATION PORTION OF THE ORDER READS AS UNDER: 2. WE HAVE HEARD THE LD. D/R AS WELL AS THE LD. A/R. AT THE OUTSET, WE NOTE THAT THE TAX EFFECT IN THIS APPEAL IS NOT EXCEEDING THE MONETARY LIMIT AS REVISED BY THE CBDT VIDE CIRCULAR DATED 08.08.2019 FOR THE PURPOSE OF FILING OF APPEAL BY THE DEPARTMENT BEFORE THE INCOME TAX APPELLATE TRIBUNAL FROM RS. 20,00,000/- TO RS. 50,00,000/-. FOR READY REFERENCE, WE REPRODUCE THE CBDT CIRCULAR NO. 17 OF 2019 DATED 08.08.2019 AS UNDER :- FURTHER ENHANCEMENT OF MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL, HIGH COURTS AND SLPS/APPEALS BEFORE SUPREME COURT - AMENDMENT TO CIRCULAR 3 OF 2018 - MEASURES FOR REDUCING LITIGATION. CIRCULAR NO. 3/2018 DATED 11TH JULY 2018 HAS BEEN REPLACED BY CIRCULAR NO. 17/2019 DATED 8TH AUGUST 2019 TO ENHANCE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE INCOME TAX APPELLATE TRIBUNAL, HIGH COURTS AND SLPS/APPEALS BEFORE SUPREME COURT FOR REDUCING LITIGATION. APPEALS/SLPS IN INCOME - TAX MATTERS MONETARY LIMIT (RS.) (PREVIOUS LIMIT) MONETARY LIMIT (RS.) (REVISED LIMIT) BEFORE APPELLATE TRIBUNAL 20,00,000 50,00,000 BEFORE HIGH COURT 50,00,000 1,00,00,000 BEFORE SUPREME COURT 1,00,00,000 2,00,00,000 THE ASSESSING OFFICER SHALL CALCULATE THE TAX EFFECT SEPARATELY FOR EVERY ASSESSMENT YEAR IN RESPECT OF THE DISPUTED ISSUES IN THE CASE OF EVERY ASSESSEE. IF, IN THE CASE OF AN ASSESSEE, THE DISPUTED ISSUES ARISE IN MORE THAN ONE ASSESSMENT YEAR, APPEAL CAN BE FILED IN RESPECT OF SUCH ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IN RESPECT OF THE DISPUTED ISSUES EXCEEDS THE MONETARY LIMIT. NO APPEAL SHALL BE FILED IN RESPECT OF AN 3 MA NO. 06/JP/2020 ITO VS MANISH SWAMI ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT. FURTHER, EVEN IN THE CASE OF COMPOSITE ORDER OF ANY HIGH COURT OR APPELLATE AUTHORITY WHICH INVOLVES MORE THAN ONE ASSESSMENT YEAR AND COMMON ISSUES IN MORE THAN ONE ASSESSMENT YEAR, NO APPEAL SHALL BE FILED IN RESPECT OF AN ASSESSMENT YEAR OR YEARS IN WHICH THE TAX EFFECT IS LESS THAN THE MONETARY LIMIT. IN CASE WHERE A COMPOSITE ORDER/ JUDGEMENT INVOLVES MORE THAN ONE ASSESSEE, EACH ASSESSEE SHALL BE DEALT WITH SEPARATELY. ACCORDINGLY, THE APPEAL OF THE DEPARTMENT IS NOT MAINTAINABLE BEING MONETARY LIMIT IS LESS THAN/NOT EXCEEDING RS. 50,00,000/-. 3. THE DEPARTMENT IS AT LIBERTY TO FILE THE MISCELLANEOUS APPLICATION IN CASE THE TAX EFFECT IN THIS APPEAL IS FOUND TO BE MORE THEN RS. 50,00,000/- OR THE CASE FALLS IN ANY OF THE EXCEPTIONS OF THE CIRCULAR. 4. THE REVENUE HAS FILED PRESENT MISC. APPLICATION ON THE GROUND THAT ON PERUSAL OF THE ASSESSMENT RECORDS OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION, IT WAS FOUND THAT THE ASSESSEE IS CLAIMED EXEMPTION U/S 10(38) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT) OF CAPITAL GAIN WHEREAS THE A.O. MADE ADDITION ON ACCOUNT OF LONG TERM CAPITAL GAIN AND CLAIMED EXEMPTION U/S 10(38) OF THE ACT AND ALSO ON ACCOUNT OF COMMISSION PAID FOR ACQUIRING ACCOMMODATION ENTRY. IT WAS FURTHER SUBMITTED THAT THE ORDER OF THE TRIBUNAL REQUIRES RECTIFICATION AS THIS CASE FALLS IN EXCEPTION OF PENNY STOCK SPECIFIED IN CBDT CIRCULAR NO. 23 OF 2019 DATED 06/09/2019 AND THEREFORE, IT WAS REQUESTED THAT THE ORDER OF THE TRIBUNAL DATED 21/08/2019 IN ITA NO. 842/JP/2019 MAY BE RECALLED. THE LD DR HAS ALSO RELIED ON THE FOLLOWING DECISIONS: 4 MA NO. 06/JP/2020 ITO VS MANISH SWAMI (1) M.A. NO. 122/HYD/2019 (A/O-ITA NO. 2078/HYD/2019) IN THE CASE OF ACIT CIR-4(1), HYDERABAD VS SUBASH GUPTA, ORDER DATED 01/01/2019. (2) M.A. NO. 377/AHD/2019 (A/O ITA NO. 948/AHD/2019) ITO VS SATISH M PATEL. (3) M.A. NO. 369/AHD/2019 (A/O ITA NO. 2484/AHD/2018) ITO VS AMRISH CHANDRA SHARMA HUF. 5. ON THE CONTRARY, THROUGH HIS WRITTEN SUBMISSIONS, THE ASSESSE HAS STATED THAT THE M.A. HAS BEEN FILED BY THE REVENUE ON THE GROUND THAT THE CBDT CIRCULAR NO. 23 OF 2019 DATED 06/09/2019 WHEREAS THE MATTER IN QUESTION WAS ALREADY DECIDED ON 21/08/2019 WHILE TAKING INTO CONSIDERATION CIRCULAR NO. 17/2019 DATED 08/08/2019 AS THE SAME WAS APPLICABLE AT THAT MOMENT OF TIME, THEREFORE, APPLICATION FILED BY THE REVENUE DESERVES TO BE DISMISSED. IN ORDER TO SUPPORT HIS SUBMISSION, THE ASSESSE HAS RELIED UPON THE DECISION OF THIS TRIBUNAL PASSED IN M.A. NO. 15/JP/2019, DCIT VS SHRI PIYUSH SWAMI ORDER DATED 06/03/2020. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE MATERIAL AVAILABLE ON RECORD. ALTHOUGH, NOW, BOTH THE RESPECTIVE PARTIES PLACED BEFORE US THE COUNTER DECISIONS IN THEIR FAVOURS PASSED BY THE RESPECTIVE BENCHES OF THE TRIBUNAL. HOWEVER, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE INCLINED TO FOLLOW THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN MA NO. 15/JP/2020 ON THE GROUND THAT APPEAL OF THE REVENUE WAS DISPOSED OFF VIDE ORDER DATED 21.08.2019 BY 5 MA NO. 06/JP/2020 ITO VS MANISH SWAMI CONSIDERING THE CBDT CIRCULAR NO. 17 OF 2019 DATED 08.08.2019. THUS AT THE TIME OF PASSING THE IMPUGNED ORDER, THE TRIBUNAL HAS CONSIDERED THE CBDT CIRCULAR NO. 17 OF 2019 AS EXISTED AT THAT POINT OF TIME AND THE MATTER DID NOT FALL IN ANY OF THE EXCEPTIONS PROVIDED UNDER THE SAID CIRCULAR. NOW THE DEPARTMENT IS SEEKING RECALLING OF THE SAID ORDER IN VIEW OF THE SUBSEQUENT CIRCULAR DATED 6 TH SEPTEMBER, 2019 AND SPECIAL ORDER OF CBDT DATED 16 TH SEPTEMBER, 2019. IT IS PERTINENT TO NOTE THAT THE SUBSEQUENT CIRCULAR NO. 23 OF 2019 DATED 6 TH SEPTEMBER, 2019 AS WELL AS THE SPECIAL ORDER DATED 16 TH SEPTEMBER, 2019 ARE THE SUBSEQUENT DEVELOPMENTS AND NOT IN EXISTENCE AT THE TIME OF PASSING THE IMPUGNED ORDER. THEREFORE, THESE SUBSEQUENT CIRCULAR AND SPECIAL ORDER OF THE CBDT CANNOT BE APPLIED TO THE IMPUGNED ORDER DATED 21.08.2019. WE FURTHER NOTE THAT THIS TRIBUNAL IN CASE OF DCIT VS. SHRI SURENDRA KUMAR PATNI IN MA NO. 68/JP/2019 DATED 24 TH FEBRUARY, 2020 HAS CONSIDERED AN IDENTICAL ISSUE IN PARA 4 TO 11 AS UNDER :- 4. 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 2.09.2019, FOLLOWING CBDTS EARLIER CIRCULAR DATED 8.8.2019 ON ACCOUNT OF LOW TAX EFFECT, CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. 6 MA NO. 06/JP/2020 ITO VS MANISH SWAMI 5. 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 (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 JUDGMENTS IN FAVOUR OF THE REVENUE. HOWEVER, IN CASES WHERE SOME APPELLATE FORA HAVE NOT GIVEN DUE CONSIDERATION 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 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. 6. 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 7 MA NO. 06/JP/2020 ITO VS MANISH SWAMI THE UNDERSIGNED IS DIRECTED TO REFER TO CIRCULAR NO. 23 OF 2019 DATED 6 TH 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. 7. 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 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. 8. 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 8 MA NO. 06/JP/2020 ITO VS MANISH SWAMI 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 DOESNT 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. 9. WE ARE CONSCIOUS OF THE FACT THAT CBDT LOW TAX EFFECT CIRCULARS ISSUED FROM TIME TO TIME WHEREIN THE TAX EFFECT HAVE BEEN PROGRESSIVELY INCREASED BY THE REVENUE WITH A VIEW TO MINIMIZE THE LITIGATION HAS BEEN READ BY THE COURTS AND THE TRIBUNAL, AND EVEN THE CBDT HAS ALSO CLARIFIED LATTER, THAT THESE CBDT CIRCULARS SHALL APPLY NOT JUST TO FUTURE APPEALS BUT ALSO TO PENDING APPEALS AND THEREFORE, WHERE THE APPEAL HAS ALREADY BEEN FILED BY THE REVENUE AND IS PENDING, SUCH APPEAL HAS BEEN HELD TO BE COVERED BY A SUBSEQUENT LOW TAX EFFECT CIRCULAR AND DISMISSED ON ACCOUNT OF LOW TAX EFFECT. HOWEVER, IN THE INSTANT CASE, THE ISSUE IS REGARDING 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 MA NO. 06/JP/2020 ITO VS MANISH SWAMI 10. IN THE INSTANT CASE, THE APPEAL OF THE REVENUE WAS FILED ON 16.04.2019 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 DOESNT FALL IN ANY EXCEPTION AS SO PRESCRIBED BY THE CBDT IN ITS EARLIER CIRCULAR DATED 8.8.2019 AND THE SPECIAL ORDER DOESNT 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 CBDTS CIRCULAR DATED 8.8.2019. 11. 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 23.08.2019 OR AT THE TIME OF PASSING OF ORDER BY THE TRIBUNAL ON 2.09.2019 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. THUS THE TRIBUNAL HAS TAKEN A VIEW THAT THE CBDT CIRCULAR NO. 23 DATED 6 TH SEPTEMBER, 2019 AS WELL AS THE CBDT SPECIAL ORDER DATED 16 TH SEPTEMBER, 2019 DO NOT APPLY IN THE INSTANT CASE AS THE SAME WERE NOT IN EXISTENCE AT THE RELEVANT POINT OF TIME OF PASSING THE IMPUGNED ORDER. ACCORDINGLY IN VIEW OF THE EARLIER ORDER OF THIS TRIBUNAL AND TO MAINTAIN THE RULE OF CONSISTENCY, WE HOLD THAT THE NON-CONSIDERATION OF SUBSEQUENT CIRCULAR ISSUED BY THE CBDT AS WELL AS SPECIAL ORDER OF THE CBDT WOULD NOT CONSTITUTE AN APPARENT MISTAKE ON RECORD OF THE IMPUGNED ORDER DATED 21.08.2019 WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. HENCE THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS NOT MAINTAINABLE. 10 MA NO. 06/JP/2020 ITO VS MANISH SWAMI 7. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03/03/2021. SD/- SD/- FOE FLAG ;KNO LANHI XKSLKBZ (VIKRAM SINGH YADAV) (SANDEEP GOSIAN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 03/03/2021. *RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD 4(3), JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- SHRI MANISH SWAMI, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {MA NO. 06/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR