The ITO, Ward-2(1)(4), Ahmedabad V. Manju Dineshkumar Gupta, Ahmedabad

MA 35/AHD/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6969 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-09-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 05-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Penny stocks; Capital Gains
• Section: 268A; 254(2)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD [ CONDUCTED THROUGH VIRTUAL COURT] BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER SL. NOS. MA NO(S) [IN IT(SS)A/ITA NO(S)] ASSESS- MENT YEAR (S) MISCELLANEOUS APPLICATION(S) BY APPLICANTS VS. RESPONDENTS APPLICANTS RESPONDENTS 1. 401/AHD/2019 [IN IT(SS)A 178/AHD/2018] 2011-12 THE DY.CIT CIRCLE-4(1)(1) AHMEDABAD SHRI DHIREN H.VORA 2ND FLOOR, H.N. HOUSE NR.OLD GUJARAT HIGH COURT RAILWAY CROSSING NAVRANGPURA AHMEDABAD PAN: AAWPV 2756 N 2. 386/AHD/2019 (IN ITA 516/A/19) 2015-16 DY.CIT CIRCLE-4(2) AHMEDABAD SHRI JAYANTIBHAI GYANESH SINGH K-2, PARASMANI SOCIETY NR.RANNAPARK GHATLODIYA AHMEDABAD PAN : ALWPS 0094 F 3. 35/AHD/2020 (IN ITA 2166/A/17) 2014-15 ITO WARD-2(1)(1) AHMEDABAD SHRI MANJU DINESHKUMAR GUPTA 7, JAGNIRMAN SOCIETY B/H NAVRANG SCHOOL NARANPURA AHMEDABAD PAN:ALJPG 9430 C 4. 26/AHD/2020 (IN ITA 310/A/19) 2010-11 THE DCIT CIRCLE-1(1) AHMEDABAD SMT. DENISHA RAJENDRA KESHWANI 44, ASOPALAV BUNGALOWS NR.MUKTIDHAM JAIN TEMPLE THALTEJ AHMEDABAD PAN:AHZPK 0889 K 5. 150/AHD/2020 [IN IT(SS)A 331/A/18] 2011-12 THE DCIT CENTRAL CIRCLE-1 VADODARA SMT.RASHMI RAJESH BAFNA 204, STHAPATYA FLATS 1, VRUNDAVAN COMPLEX ELLORA PARK, BARODA PAN: AGXPB3827 B 6. 151/AHD/2020 [IN IT(SS)A 2012-13 -DO-REVENUE -DO-ASSESSEE MA NO.401/AHD/2019 [IN IT(SS)A NO.178/AHD/2018] THE DCIT VS. SHRI DHIREN H.VORA ASST.YEAR 2011 -12 [AND 12 OTHERS] - 2 - 332/A/18] 7. 387/AHD/2019 (IN ITA 515/A/19) 2015-16 DCIT CIRCLE 4(2) AHMEDABAD SHRI GYANESHKAMAL RAMANDAN SINGH K-2, PARASMANI SOCIETY NR. RANNAPARK GHATLODIYA AHMEDABAD PAN: ABIPS 9346 N 8. 70/AHD/2020 (IN ITA 1801/A/18) 2015-16 ITO WARD-3(2)(5) AHMEDABAD SMT. SAROJBEN NAVNITALAL SONI AT BAREJA, TAL. DASCROI, DIST. AHMEDABAD PAN: AFHPS 7830 L 9. 91/AHD/2020 (IN ITA 1837/A/13) 2005-06 THE JT.CIT(OSD) CIRCLE-2(2) AHMEDABAD HARISH KESHAVLAL PATEL 27/B, SUDARSHAN SOCIETY NARANPURA AHMEDABAD PAN: ABXPP 2730 L 10. 25/AHD/2020 (IN ITA 309/A/19) 2010-11 THE DY.CIT CEN.CIR-1(1) AHMEDABAD SHRI RAJENDRA J.KESHWANI 44, ASOPALAV BUNGALOWS NR.MUKTIDHAM JAIN TEMPLE THALTEJ AHMEDABAD PAN: AAEHK 1973 K 11. 405/AHD/2019 [IN IT(SS)A 194/A/19) 2013-14 THE ACIT CENT.CIR-2(4) AHMEDABAD DHWANI JATEEN GUPTA BUNGALOW NO.1, 30 RIVERA BUNGALOW NR.AUDA GARDEN 100 FT. RING ROAD PRAHLADNAGAR ROAD VEJALPUR AHMEDABAD-380 015 PAN: AHPPG 1903 Q 12. 404/AHD/2019 [IN IT(SS) 192/A/19] 2013-14 THE ACIT CENT.CIR.2(4) AHMEDABAD ALKABEN PRAVINCHANDRA KOTAK 325/17, SATYAGRAH CHHAVNI JODHPUR TEKRA SATELLITE MA NO.401/AHD/2019 [IN IT(SS)A NO.178/AHD/2018] THE DCIT VS. SHRI DHIREN H.VORA ASST.YEAR 2011 -12 [AND 12 OTHERS] - 3 - AHMEDABAD-380015 PAN: ACGPT 6684 B 13. 77/AHD/2020 (IN ITA 1274/A/19) 2011-12 THE ACIT CENT.CIR-1(1) AHMEDABAD ANAND N.SHARDA B-72, GOYAL PARK APARTMENT OPP. LAD SOCIETY VASTRAPUR, AHMEDABAD PANL: ADKPS 5527 M / APPLICANTS BY : SHRI DILEEPKUMAR, SR.DR / RESPONDENTS BY : SL.NOS. 1. SHRI S.N. SOPARKAR, AR 2. SHRI HARDIK VORA, AR 3. NONE 4. NONE 5-6. SHRI HARDIK VORA, AR 7. SHRI HARDIK VORA, AR 8. SHRI M.K. PATEL, AR 9. NONE 10. NONE 11. SHRI NUPUR SHAH, AR 12. SHRI NUPUR SHAH, AR 13. SHRI HARDIK VORA, AR / DATE OF HEARING 04/09/2020 / DATE OF PRONOUNCEMENT /09/2020 / O R D E R PER RAJPAL YADAV, VICE PRESIDENT: THE PRESENT MISCELLANEOUS APPLICATIONS ARE DIRECTED AT THE INSTANCE OF THE REVENUE POINTING OUT AN APPARENT ERROR IN THE C OMMON ORDER OF THE TRIBUNAL DATED 14/08/2019. MA NO.401/AHD/2019 [IN IT(SS)A NO.178/AHD/2018] THE DCIT VS. SHRI DHIREN H.VORA ASST.YEAR 2011 -12 [AND 12 OTHERS] - 4 - 2. IT IS PERTINENT TO NOTE THAT CBDT HAS ISSUED CIR CULAR NO.17 OF 2019 DATED 08/08/2019, WHEREBY IT WAS PROVIDED THAT APPE ALS OF THE REVENUE WILL NOT BE MAINTAINABLE BEFORE THE TRIBUNAL IF TAX EFFE CT 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 VIRTUE OF RELIEF GI VEN BY THE LD.CIT(A) WAS LESS THAN RS.50 LAKHS. THE ITAT THE HELP OF THE CI RCULAR DISMISSED THOSE APPEALS. 3. IN THE PRESENT MISCELLANEOUS APPLICATION(S), IT HAS BEEN CONTENDED THAT AFTER THE CIRCULAR NO.17 OF 2019, THE DEPARTME NT HAS ISSUED CIRCULAR 23 OF 2019 DATED 06/09/2019 WHICH READS AS UNDER: CIRCULAR NO. 23 OF 2019 [F.NO.279/MISC./M-93/2018- SECTION 268A OF THE INCOME-TAX ACT, 1961 - FILING O F APPEALS OR APPLICATION FOR REFERENCE BY INCOME-TAX AUTHORIT Y - EXCEPTION TO MONETARY LIMITS FOR FILING APPEALS SPE CIFIED IN ANY CIRCULAR ISSUED UNDER SAID SECTION CIRCULAR NO. 23 OF 2019 [F.NO.279/MISC./M-93/2018-I TJ(PT.)], DATED 6-9- 2019 REFERENCE IS INVITED TO THE CIRCULARS ISSUED FROM T IME-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 CONDITION S 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 MA NO.401/AHD/2019 [IN IT(SS)A NO.178/AHD/2018] THE DCIT VS. SHRI DHIREN H.VORA ASST.YEAR 2011 -12 [AND 12 OTHERS] - 5 - LIMITS. IT HAS BEEN REPORTED THAT IN LARGE NUMBER O F 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 CAS ES 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 D EPARTMENT FOR FILING FURTHER APPEAL IN VIEW OF THE PRESCRIBED MONETARY LIMITS. 3. IN THIS CONTEXT, BOARD HAS DECIDED THAT NOTWITHSTA NDING ANYTHING CONTAINED IN ANY CIRCULAR ISSUED U/S. 268A SPECIFYING MONETARY L IMITS FOR FILING OF DEPARTMENTAL APPEALS BEFORE INCOME TAX APPELLATE TRIBUNAL (ITAT) , HIGH COURTS AND SLPS/APPEALS BEFORE SUPREME COURT, APPEALS MAY BE F ILED ON MERITS AS AN EXCEPTION TO SAID CIRCULAR, WHERE BOARD, BY WAY OF SPECIAL OR DER DIRECT FILING OF APPEAL ON MERIT IN CASES INVOLVED IN ORGANISED TAX EVASION AC TIVITY. 3.1. SIMILARLY, DEPARTMENT HAS ISSUED OFFICE MEMO RANDUM F.NO.279/MISC./M-93/2018-ITJ (PT.) DATED 16/09/2019 . WE 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 O F APPEALS OR APPLICATION FOR REFERENCE BY INCOME-TAX AUTHORIT Y - SPECIAL ORDER OF BOARD EXEMPTING CASES INVOLVING BO GUS LONG TERM CAPITAL GAINS (LTCG)/SHORT TERM CAPITAL L OSS (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 COUR T SHALL NOT APPLY IN CASE OF ASSESSEES CLAIMING BOGUS LTCG/STCL THROUGH PENNY ST OCKS AND APPEALS/SLPS IN SUCH CASES SHALL BE FILED ON MERITS. MA NO.401/AHD/2019 [IN IT(SS)A NO.178/AHD/2018] THE DCIT VS. SHRI DHIREN H.VORA ASST.YEAR 2011 -12 [AND 12 OTHERS] - 6 - 4. ON THE STRENGTH OF THESE CIRCULARS (SUPRA), THE DEPARTMENT FILED PRESENT MISCELLANEOUS APPLICATIONS AND CONTENDED TH EREIN THAT WHERE AN ASSESSEE HAS CLAIMED LONG TERM CAPITAL GAIN/SHORT T ERM CAPITAL LOSS ON PENNY STOCK AND ASSESSING OFFICER HAS DISALLOWED SU CH CLAIM BY TREATING THE TRANSACTIONS OF THE ASSESSEE AS BOGUS BUT CIT(A) HA S ALLOWED THE APPEALS ON SUCH ISSUES AND VACATED THE ACTION OF THE ASSESSING OFFICER, THEN IN SUCH CASES, APPEALS AT THE INSTANCE OF REVENUE WOULD NOT BE DISMISSED ON THE STRENGTH OF CIRCULAR NO.17 OF 2019 DATED 08/08/2019 , I.E. SIMPLY FOR THE REASON THAT TAX EFFECT IS INVOLVED IN SUCH APPEALS IS LESS THAN RS.50 LAKHS. 5. THE LD.DR RELIED UPON THE SUBSEQUENT CIRCULAR OF CBDT AND CONTENDED THAT THE ORDER OF THE ITAT IN THESE APPEALS BE RECA LLED AND RESTORED TO THEIR ORIGINAL NUMBERS. 6. ON THE OTHER HAND, SHRI S.N. SOPARKAR, SR.LD.COU NSEL FOR THE ASSESSEE CONTENDED THAT ON CAREFUL READING OF PARA-3 OF CIRC ULAR NO.23 OF 2019 DATED 06/09/2019 WOULD INDICATES THAT IT HAS NOT PROVIDED FOR RECALL OF EARLIER TRIBUNAL ORDERS, IT ONLY PROVIDES THAT IN FUTURE AP PEALS BE FILED ON MERIT. HE FURTHER CONTENDED THAT THIS ASPECT HAS BEEN ELABORA TELY CONSIDERED BY ITAT JAIPUR BENCHES IN MA NO.23/JP/2020 FOR AY 2014-15 V IDE ORDER DATED 20/03/2020. HE PLACED ON RECORD A COPY OF THE TRIB UNALS ORDER. 7. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORDS CAREFULLY. THE TRIBUNAL HAS IDENTIFIED TH E APPEALS INVOLVING TAX EFFECT BY VIRTUE OF RELIEF GIVEN BY THE CIT(A) BELOW RS.5 0 LAKHS ON 14/08/2019 AND MA NO.401/AHD/2019 [IN IT(SS)A NO.178/AHD/2018] THE DCIT VS. SHRI DHIREN H.VORA ASST.YEAR 2011 -12 [AND 12 OTHERS] - 7 - DISMISSED THOSE APPEALS. ON 14/08/2019, NO SUCH CI RCULAR WAS AVAILABLE. THE SUBSEQUENT CIRCULAR, IN ANY CASE, WOULD NOT MAK E THE ORDER OF THE TRIBUNAL SUFFERING FROM AN APPARENT ERROR. THE CIR CULAR NO.23 OF 2019 OR OFFICE MEMORANDUM F.NO.279/MISC./M-93/2018-ITJ (PT. ) NOWHERE CONTEMPLATES THAT THESE WILL BE APPLICABLE W.E.F. 0 8/08/2019, I.E. THE DATE WHEN CIRCULAR NO.17 OF 2019 WAS ISSUED. 8. AFTER FROM THE ABOVE OBSERVATION, WE FIND THAT T HIS ASPECT HAS BEEN ELABORATELY CONSIDERED BY THE ITAT JAIPUR BENCHES A ND THE DISCUSSIONS MADE BY THE TRIBUNAL READ AS UNDER: 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED 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 16.09.201 9 APPLIES TO THE INSTANT APPEAL AND THE CASE FALLS IN EXCEPTION OF P ENNY STOCK, AND THE MATTER WHICH HAS BEEN ALREADY BEEN DISMISSED BY THE TRIBUN AL ON 21.08.2019, 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, 19 61-REG REFERENCE IS INVITED TO THE CIRCULARS ISSUED FROM T IME 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 CONDITION S 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 BOA RD THAT IN LARGE NUMBER OF CASES WHERE ORGANISED TAX-EVASION SCAM IS NOTICED T HROUGH BOGUS LONG-TERM MA NO.401/AHD/2019 [IN IT(SS)A NO.178/AHD/2018] THE DCIT VS. SHRI DHIREN H.VORA ASST.YEAR 2011 -12 [AND 12 OTHERS] - 8 - 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 UNIQUE MODUS OPE RAND! INVOLVED IN SUCH 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 NO REMEDY AVAILABLE WITH THE DEPARTMENT FOR FILING FURTHER APPEAL IN VIEW OF THE PRESCRIBED MON ETARY LIMITS. 3. IN THIS CONTEXT, BOARD HAS DECIDED THAT NOTWITHS TANDING ANYTHING CONTAINED IN ANY CIRCULAR ISSUED U/S 268A SPECIFYING MONETARY LIMITS FOR FILING OF DEPARTMENTAL APPEALS BEFORE INCOME TAX APPELLATE TRIBUNAL (ITAT), HIGH C OURTS 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.' 5. PURSUANT TO AFORESAID CIRCULAR, THE SPECIAL ORDE R 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 I NVOLVING BOGUS LONG TERM CAPITAL GAINS(LTCG)/SHORT TERM CAPITAL LOSS (STCL) THROUGH PENNY STOCKS FROM MONETARY LIMITS SPECIFIED IN ANY CIRCULAR ISSUED UN DER SECTION 268A OF THE INCOME- TAX ACT, 1961-REG 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 CEN TRAL BOARD OF DIRECT TAXES U/S 268A OF INCOME-TAX ACT, 1961, THE MONETARY LIMITS F IXED FOR FILING APPEALS BEFORE ITA T/HC AND SLPS /APPEALS BEFORE SUPREME COURT SHALL N OT APPLY IN CASE OF ASSESSES CLAIMING BOGUS LTCG/STCL THROUGH PENNY STOCKS AN D APPEALS/SLPS IN SUCH CASES SHALL BE FILED ON MERITS.' 6. ON READING OF THE AFORESAID CIRCULAR NO. 23 OF 2 019 SO ISSUED BY THE CBDT, WE FIND THAT THE CBDT HAS DECIDED THAT NOTWITHSTAND ING MONETARY LIMITS FOR NOT FILING/PURSUING APPEALS IN TERMS OF ANY CIRCULA R ALREADY ISSUED UNDER SECTION 268A OF THE ACT SPECIFYING THE MONETARY LIM ITS, THE APPEALS BY THE REVENUE CAN STILL BE FILED ON MERITS IN CASES INVOL VING 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 SP ECIAL ORDER PASSED BY THE CBDT. THERE IS THUS A SPECIFIC REQUIREMENT FOR ISSU ANCE OF A SPECIAL ORDER BY MA NO.401/AHD/2019 [IN IT(SS)A NO.178/AHD/2018] THE DCIT VS. SHRI DHIREN H.VORA ASST.YEAR 2011 -12 [AND 12 OTHERS] - 9 - THE CBDT AND THEREFORE, UNLIKE GENERAL EXCEPTIONS C ARVED OUT FROM FILING APPEALS ON MERITS, IN THESE CASES, INVOLVING LONG T ERM 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 ON LY 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 S HORT TERM CAPITAL GAINS EXEMPTION THROUGH PENNY STOCKS, WE FIND THAT THE C BDT HAS SINCE COME OUT WITH A SPECIAL ORDER COMMUNICATED VIDE OFFICE MEMOR ANDUM DATED 16.09.2019 STATING THAT MONETARY LIMITS FIXED FOR F ILING APPEALS IN THESE CASES BEFORE THE TRIBUNAL, HIGH COURT AND SUPREME COURT S HALL NOT APPLY IN CASE OF ASSESSEE CLAIMING BOGUS LTCG/STCG THROUGH PENNY STO CK AND APPEAL SHALL BE FILED ON MERITS. THE SPECIAL ORDER THUS TALKS AB OUT FILING OF APPEAL IN SUCH CASES AND THEREFORE, IT RELATES TO ANY APPEAL IN SU CH 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 ORDE R BY THE REVENUE WHICH SHALL BE READ AND UNDERSTOOD AS FILED PURSUANT TO S UCH SPECIAL 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 PROGR ESSIVELY 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 CLARIF IED LATTER, THAT THESE CBDT CIRCULARS SHALL APPLY NOT JUST TO FUTURE APPEA LS 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 T O 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 REGARDIN G CARVING OUT AN EXCEPTION FROM SUCH LOW TAX EFFECT LIMITS AND THAT TOO, NOT J UST 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 A N APPEAL IS FILED 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. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE CBDT CIRCULAR NO. 23 OF 2019 SHOULD BE READ ALO NG WITH SPECIAL ORDER OF THE CBDT DATED 16.09.2019 IN RESPECT OF APPEALS FIL ED PURSUANT TO SUCH SPECIAL ORDER AND SHALL THUS APPLY TO ALL APPEALS F ILED ON OR AFTER 16.09.2019 MA NO.401/AHD/2019 [IN IT(SS)A NO.178/AHD/2018] THE DCIT VS. SHRI DHIREN H.VORA ASST.YEAR 2011 -12 [AND 12 OTHERS] - 10 - BY THE REVENUE WHERE THE TAX EFFECT MAY BE LOW BUT THE APPEAL 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 NOT FILED PUR SUANT TO SUCH A SPECIAL ORDER OF THE CBDT DATED 16.09.2019 AND THUS, THE MA TTER DOESN'T FALL IN ANY EXCEPTION AS SO PRESCRIBED BY THE CBDT IN ITS EARLI ER CIRCULAR DATED 8.8.2019 AND THE SPECIAL ORDER DOESN'T 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 CBDT'S 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 THUS NOT PART OF THE RECORD AT THE TIME WHEN THE MATTER WAS HEARD ON 20.08.2019 OR AT THE T IME OF PASSING OF ORDER BY THE TRIBUNAL ON 21.08.2019 AND THEREFORE, NON- C ONSIDERATION OF SUCH CIRCULAR AND THE SPECIAL ORDER SO PASSED BY THE CBD T IS NOT A MISTAKE APPARENT FROM RECORD WHICH CAN BE RECTIFIED WITHIN THE NARROW COMPASS OF SECTION 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 APPLICATIO NS FILED BY THE REVENUE ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 9/09/2020 SD/- SD/- ( WASEEM AHMED ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER VICE PRESIDENT AHMEDABAD; DATED 9/09/2020 . . , . . . / T.C. NAIR, SR. PS MA NO.401/AHD/2019 [IN IT(SS)A NO.178/AHD/2018] THE DCIT VS. SHRI DHIREN H.VORA ASST.YEAR 2011 -12 [AND 12 OTHERS] - 11 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANTS 2. / THE RESPONDENTS. 3. !'!#$ % / CONCERNED CIT 4. % ( ) / THE CIT(A)-11, AHMEDABAD AND CONCERNED 5. &'( #$ , #$ , ' / DR, ITAT, AHMEDABAD 6. (+, / GUARD FILE. / BY ORDER, & //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION..04.09.20 ( DICTATION-PAD 8-PAGES ATTACHED AT THE END OF THIS FILE ) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 8.9.20/9.9.20 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.9.9.20 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 9.9.20 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER