ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3, JAIPUR V. MS. HARSHITA MAHESHWARI, JAIPUR

MA 23/JPR/2020

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2187 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-03-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 04-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S R SHARMA; R K BHATRA CA DH R
• Keywords: Earning of tax free income; Corroborative evidences; Assessment record; Tax effect; Retraction; Penny stocks; Capital Gains
• Section: 69C; 153A; 268A; 254(2); 131

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S B JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ MA NO.23/JP/2020 (ARISING OUT OF ITA NO. 754/JP/2019) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2014-15 THE ACIT, CENTRAL CIRCLE-3, JAIPUR CUKE VS. MS. HARSHITA MAHESWARI, 376, NAHARGARH ROAD, CHANDPOLE BAZAR, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AZWPM4747P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SMT. RUNI PAL ( JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. S. R. SHARMA (C.A.) & SH. R. K. BHATRA (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 20.03.2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 20.03.2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE REVENUE AGAINST THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 754/JP/2019 DATED 21.08.2019. IN THE MISCELLANEOUS APPLICATION, THE REVENUE HAS REQUESTED TO RECTIFY THE MISTAKE U/S 25 4(2) OF THE ACT BY RECALLING THE EARLIER ORDER PASSED BY THE TRIBUNAL WITH THE FOLLOWING PRAYER:- IN THIS CONNECTION, IT IS SUBMITTED THAT THE HONB LE ITAT HAS DISMISSED THE APPEAL OF REVENUE IN LIGHT OF THE CBDTS CIRCUL AR VIDE NO. 17/2019 DATED M.A. NO. 23/JP/2020 ACIT, JAIPUR VS. MS. HARSHITA MAHESWARI, JAIPUR 2 08.08.2019 WHEREIN THE MONETARY LIMIT FOR FILING AP PEAL BEFORE THE FOLLOWING AUTHORITIES. S. NO. APPEALS/ SLPS IN INCOME TAX MATTERS MONETARY LIMIT (RS.) 1 BEFORE APPELLATE TRIBUNAL 50,00,000/- 2 BEFORE HIGH COURT 1,00,00,000/- 3 BEFORE SUPREME COURT 2,00,00,000/- FURTHER, THE HONBLE ITAT HAS GIVEN THE LIBERTY TO FILE THE MISCELLANEOUS APPLICATION IN CASE THE TAX EFFECT IN THIS APPEAL I S FOUND TO BE MORE THAN RS. 50,00,000/- OR THE CASE FALLS IN ANY OF THE EXCEPTI ONS OF THE CIRCULARS. ON PERUSAL OF THE ASSESSMENT RECORD OF THIS CASE, IT IS SEEN THAT THE REVENUE HAS FILED APPEAL ON THE FOLLOWING GROUNDS B EFORE THE HONBLE ITAT, JAIPUR S. NO. ISSUE INVOLVED TAX EFFECT (RS.) 1 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS. 73,03,996/- U/S 68 OF THE IT. ACT, 1961 MADE BY THE AO ON ACCOUNT OF BOGUS LTCG WHICH WAS CLAIMED BY THE ASSESSEE AS EXEMPT INCOME U/S 10(38) OF THE IT. ACT. 22,56,936 2 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS. 73,040/- U/S 69C OF THE I.T.ACT, 1961 MADE BY THE AO ON ACCOUNT OF UNEXPLAINED COMMISSION EXPENDITURE FOR TAKING BOGUS ACCOMMODATION ENTRY IN THE FORM OF LTCG. 22,569 3 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THAT THE CIT(A) WAS RIGHT IN DELETING THE ADDITION OF RS. 73,03,996/- MADE BY - M.A. NO. 23/JP/2020 ACIT, JAIPUR VS. MS. HARSHITA MAHESWARI, JAIPUR 3 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 HOLDING THAT IN ABSENCE OF ANY INCRIMINATING MATERIAL, THE COMPLETED ASSESSMENT CANT BE INTERFERED WITH BY THE AO AND COMPLETED ASSESSMENT CAN BE INTERFERED WITH BY THE AO AND COMPLETED ASSESSMENT CAN BE INTERFERED WITH BY THE AO WHILE MAKING ASSESSMENT U/S 153A ONLY ON THE BASIS OF SOME INCRIMINATING MATERIAL UNEARTHED DURING THE COURSE OF SEARCH WHICH WERE NOT PRODUCED OR NOT - M.A. NO. 23/JP/2020 ACIT, JAIPUR VS. MS. HARSHITA MAHESWARI, JAIPUR 4 ALREADY DISCLOSED. 7 WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) IS RIGHT IN NOT ACCEPTING THE DECISION OF HONBLE HIGH COURT, JAIPUR IN THE CASE OF SHRI ROSHAN LAL SANCHETI, BHILWARA (RAJ) WHEREIN THE HONBLE COURT HAS HELD THAT IT MUST BE HELD THAT STATEMENT RECORDED U/S 132(4) OF THE I.T. ACT AND LATER CONFIRMED IN STATEMENT RECORDED U/S 131 OF THE I.T. ACT, CANT BE DISCARDED SIMPLY FOR OBSERVING THAT THE ASSESSEE HAS RETRACTED THE SAME BECAUSE SUCH RETRACTION OUGHT TO HAVE BEEN GENERALLY MADE WITHIN REASONABLE TIME OR BY FILING COMPLAINT TO SUPERIOR AUTHORITIES OR OTHERWISE BROUGHT TO NOTICE OF THE HIGHER OFFICIALS BY FILING DULY SWORN AFFIDA VIT OR STATEMENT SUPPORTED BY CONVINCING EVIDENCES. - 8 THE APPELLANT CRAVE, LEAVE OR RESERVING THE RIGH T TO AMEND MODIFY, ALTER ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE OR DURING THE HEARING OF THIS APPEAL. - TOTAL TAX EFFECT 22,79,505 SINCE, THE TAX EFFECT INVOLVED IN THIS CASE IS BELO W THE MONETARY LIMIT FIXED BY THE CBDT BUT THE ISSUE INVOLVED IN THIS CA SE IS BOGUS LONG TERM CAPITAL GAIN (LTCG) THROUGH PENNY STOCKS IN WHICH T HE ISSUE HAS TO BE DECIDED ON MERITS AND NOT THE MONETARY LIMIT AS PER THE CBDT OM NO. 279/MISC./M-93/2018-ITJ(PT.) DATED 16.09.2019 AND C IRCULAR OF CBDT NO. 23 OF 2019 DATED 06.09.2019. M.A. NO. 23/JP/2020 ACIT, JAIPUR VS. MS. HARSHITA MAHESWARI, JAIPUR 5 FROM THE ABOVE DISCUSSION AND GUIDELINES ISSUED BY THE CBDT, IT IS CLEAR THAT THE ISSUE INVOLVED IN THIS CASE FALLS UN DER THE EXCEPTION TO THE MONETARY LIMIT, THEREFORE, THE MISC. APPLICATION IS REQUIRED TO BE FILED BEFORE THE HONBLE ITAT ON THIS ISSUE AS THE MERITS OF THE CASE WERE NOT ADJUDICATED AND THE CASE WAS DISPOSED OFF ONLY WITH REGARDS TO THE MONETARY LIMITS. 2. PER CONTRA, THE LD AR SUBMITTED THAT CIRCULAR N O. 23 OF 2019 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 T HAT THE APPEAL MAY BE FILED ON MERITS AS AN EXCEPTION TO SAID CIRC ULAR, WHERE THE BOARD BY WAY OF SPECIAL ORDER DIRECT FILING OF APPE AL 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 B EEN DISPOSED OFF BY THE TRIBUNAL AND SECONDLY, THE BOARD HAS TO ISSUE A SPECIAL ORDER DIRECTING FILING OF AN APPEAL ON MERITS IN SU CH CASES. IT WAS FURTHER SUBMITTED THAT THE BOARD HAS SINCE ISSUED A N OFFICE MEMORANDUM DATED 16.09.2019 WHEREBY THE CBDT THROUG H A SPECIAL ORDER PASSED U/S 268A OF THE ACT HAS HELD T HAT THE MONETARY LIMITS FIXED FOR FILING APPEALS BEFORE ITA T/HC AND SLPS/APPEALS BEFORE THE SUPREME COURT SHALL NOT APP LY IN CASE OF ASSESSEE CLAIMING BOGUS LTCG/STCL THROUGH PENNY STO CKS 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 O F THE ORDER IN THE INSTANCE CASE BY THE TRIBUNAL AND IN ANY CAS E, IT TALKS M.A. NO. 23/JP/2020 ACIT, JAIPUR VS. MS. HARSHITA MAHESWARI, JAIPUR 6 ABOUT FILING OF APPEALS ON MERITS AND THEREFORE, DO ESNT APPLY TO APPEALS ALREADY FILED AND DISMISSED BY THE TRIBUNAL . 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSED THE MATERIAL AVAILABLE ON RECORD. THE LIMITED ISSUE UND ER CONSIDERATION IS WHETHER CBDT CIRCULAR NO. 23 OF 20 19 DATED 6.09.2019 READ WITH SPECIAL ORDER OF THE CBDT COMMU NICATED VIDE OFFICE MEMORANDUM DATED 16.09.2019 APPLIES TO THE INSTANT APPEAL AND THE CASE FALLS IN EXCEPTION OF PENNY STO CK, AND THE MATTER WHICH HAS BEEN ALREADY BEEN DISMISSED BY THE TRIBUNAL ON 21.08.2019, FOLLOWING CBDTS EARLIER CIRCULAR DATED 8.8.2019 ON ACCOUNT OF LOW TAX EFFECT, CAN BE RECTIFIED UNDER S ECTION 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 IN COME-TAX ACT, 1961-REG REFERENCE IS INVITED TO THE CIRCULARS ISSUED FROM T IME TO TIME BY CENTRAL BOARD OF DIRECT TAXES (THE BOARD) UNDER SECTION 268 A OF THE INCOME- TAX ACT,1961 (THE ACT), FOR LAYING DOWN MONETARY LI MITS AND OTHER CONDITIONS FOR FILING OF DEPARTMENTAL APPEALS BEFOR E INCOME TAX APPELLATE TRIBUNAL (ITAT). HIGH COURTS AND. SLPS/AP PEALS BEFORE SUPREME COURT. 2. SEVERAL REFERENCES HAVE BEEN RECEIVED BY THE BOA RD THAT IN LARGE NUMBER OF CASES WHERE ORGANISED TAX-EVASION SCAM IS NOTICED THROUGH M.A. NO. 23/JP/2020 ACIT, JAIPUR VS. MS. HARSHITA MAHESWARI, JAIPUR 7 BOGUS LONG-TERM CAPITAL GAIN (LTCG)/SHORT TERM CAPI TAL LOSS (STCL) ON PENNY STOCKS AND DEPARTMENT IS UNABLE TO PURSUE THE CASES IN HIGHER JUDICIAL FORA ON ACCOUNT OF ENHANCED MONETARY LIMIT S. IT HAS BEEN REPORTED THAT IN LARGE NUMBER OF CASES, ITATS AND H IGH COURT HAVE RECOGNIZED THE UNIQUE MODUS OPERANDI INVOLVED IN SU CH SCAM AND HAVE PASSED JUDGMENTS IN FAVOUR OF THE REVENUE. HOWEVER, IN CASES WHERE SOME APPELLATE FORA HAVE NOT GIVEN DUE CONSIDERATIO N TO POSITION OF LAW OR FACTS INVESTIGATED BY THE DEPARTMENT, THERE IS N O REMEDY AVAILABLE WITH THE DEPARTMENT FOR FILING FURTHER APPEAL IN VI EW OF THE PRESCRIBED MONETARY LIMITS. 3. IN THIS CONTEXT, BOARD HAS DECIDED THAT NOTWITHS TANDING ANYTHING CONTAINED IN ANY CIRCULAR ISSUED U/S 268A SPECIFYIN G MONETARY LIMITS FOR FILING OF DEPARTMENTAL APPEALS BEFORE INCOME TAX AP PELLATE TRIBUNAL (ITAT), HIGH COURTS AND SLPS/APPEALS BEFORE SUPREME COURT. APPEALS MAY BE FILED ON MERITS AS AN EXCEPTION TO SAID CIRC ULAR, 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 ORDE R HAS BEEN PASSED BY THE CBDT, COMMUNICATED VIDE OFFICE MEMORANDUM DA TED 16.09.2019 AND THE CONTENTS THEREOF READ AS UNDER:- SUBJECT: -SPECIAL ORDER OF BOARD EXEMPTING CASES I NVOLVING BOGUS LONG TERM CAPITAL GAINS(LTCG)/SHORT TERM CAPITAL LOSS (S TCL) THROUGH PENNY STOCKS FROM MONETARY LIMITS SPECIFIED IN ANY CIRCULAR ISSUED UNDER SECTION 268A OF THE INCOME-TAX ACT, 1961-REG M.A. NO. 23/JP/2020 ACIT, JAIPUR VS. MS. HARSHITA MAHESWARI, JAIPUR 8 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,19 61, THE MONETARY LIMITS FIXED FOR FILING APPEALS BEFORE ITAT/HC AND SLPS /APPEALS BEFORE SUPREME COURT SHALL NOT APPLY IN CASE OF ASSESSES C LAIMING 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 NOTWITHSTANDING MONETARY LIMITS FOR NOT FILING/PURS UING 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 ORGANIZ ED 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 S PECIFIC REQUIREMENT FOR ISSUANCE OF A SPECIAL ORDER BY THE CBDT AND THEREFORE, UNLIKE GENERAL EXCEPTIONS CARVED OUT FRO M FILING APPEALS ON MERITS, IN THESE CASES, INVOLVING LONG TERM CAPI TAL GAINS AND SHORT TERM CAPITAL GAINS EXEMPTION THROUGH PENNY ST OCKS, THERE IS A REQUIREMENT FOR A SPECIAL ORDER TO BE ISSUED BY T HE CBDT AND ONLY WHERE SUCH A SPECIAL ORDER HAS BEEN ISSUED, TH E APPEAL SHALL BE FILED BY THE DEPARTMENT. 7. IN CASES INVOLVING LONG TERM CAPITAL GAINS AND S HORT TERM CAPITAL GAINS EXEMPTION THROUGH PENNY STOCKS, WE FI ND THAT THE M.A. NO. 23/JP/2020 ACIT, JAIPUR VS. MS. HARSHITA MAHESWARI, JAIPUR 9 CBDT HAS SINCE COME OUT WITH A SPECIAL ORDER COMMUN ICATED VIDE OFFICE MEMORANDUM DATED 16.09.2019 STATING THAT MON ETARY 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 AP PEAL SHALL BE FILED ON MERITS. THE SPECIAL ORDER THUS TALKS A BOUT FILING OF APPEAL IN SUCH CASES AND THEREFORE, IT RELATES TO A NY 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 F ILED PRIOR TO ISSUANCE OF SUCH A SPECIAL ORDER BY THE REVENUE WHI CH SHALL BE READ AND UNDERSTOOD AS FILED PURSUANT TO SUCH SPECI AL ORDER. 8. WE ARE CONSCIOUS OF THE FACT THAT CBDT LOW TAX E FFECT 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 FI LED BY THE REVENUE AND IS PENDING, SUCH APPEAL HAS BEEN HELD T O BE COVERED BY A SUBSEQUENT LOW TAX EFFECT CIRCULAR AND DISMISS ED ON ACCOUNT OF LOW TAX EFFECT. HOWEVER, IN THE INSTANT CASE, T HE ISSUE IS REGARDING CARVING OUT AN EXCEPTION FROM SUCH LOW TA X EFFECT LIMITS AND THAT TOO, NOT JUST BY A GENERAL ORDER BUT BY WA Y OF A SPECIAL ORDER WHERE SUCH APPEALS CAN BE FILED, THEREFORE, U NLESS THE SPECIAL ORDER HAS BEEN PASSED BY THE CBDT AND AN AP PEAL IS FILED M.A. NO. 23/JP/2020 ACIT, JAIPUR VS. MS. HARSHITA MAHESWARI, JAIPUR 10 PURSUANT TO SUCH A SPECIAL ORDER, THE EXCEPTION CAN NOT BE READ AND UNDERSTOOD TO APPLY TO EXISTING APPEALS WHICH HAVE ALREADY BEEN FILED PRIOR TO ISSUANCE OF THE SPECIAL ORDER. THER EFORE, WE ARE OF THE CONSIDERED VIEW THAT THE CBDT CIRCULAR NO. 23 O F 2019 SHOULD BE READ ALONG WITH SPECIAL ORDER OF THE CBDT DATED 16.09.2019 IN RESPECT OF APPEALS FILED PURSUANT TO SUCH SPECIAL O RDER AND SHALL THUS APPLY TO ALL APPEALS FILED ON OR AFTER 16.09.2 019 BY THE REVENUE WHERE THE TAX EFFECT MAY BE LOW BUT THE APP EAL CAN STILL BE FILED BY THE REVENUE ON MERITS. 9. IN THE INSTANT CASE, THE APPEAL OF THE REVENUE W AS FILED ON 22.05.2019 AND THEREFORE, THE PRESENT APPEAL WAS NO T 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 APP EAL HAS THUS RIGHTLY BEEN DISMISSED BY THE BENCH ON ACCOUNT OF L OW TAX EFFECT IN LIGHT OF CBDTS CIRCULAR DATED 8.8.2019. 10. IN ANY CASE, BOTH CBDT CIRCULAR NO. 23 OF 2019 AND SPECIAL ORDER DATED 16.09.2019 WERE NOT IN EXISTENCE AND TH US 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 A ND THE SPECIAL ORDER SO PASSED BY THE CBDT IS NOT A MISTAKE APPARE NT FROM RECORD WHICH CAN BE RECTIFIED WITHIN THE NARROW COM PASS OF SECTION 254(2) OF THE ACT. M.A. NO. 23/JP/2020 ACIT, JAIPUR VS. MS. HARSHITA MAHESWARI, JAIPUR 11 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20/03/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 20/03/2020. GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ACIT, CENTRAL CIRCLE-3, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- MS. HARSHITA MAHESWARI, 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 { M.A. NO. 23/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR.