The ACIT, Circle-3(3), Ahmedabad V. Shri Sumit D Savalia, Ahmedabad

MA 402/AHD/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 8751 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-03-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 30-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Tax effect; Penny stocks; Capital Gains
• Section: 268A; 254(2); 13

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)] ASSTT. YEAR MISCELLANEOUS APPLICATION(S) BY APPLICANTS VS. RESPONDENTS APPLICANTS RESPONDENTS 1. 334/AHD/2019 IN ITA NO.1116/AHD/2019 2015-16 DCIT, CIR.1(2) AHMEDABAD. SHRI RAJENDRA JETHABHAI KESHWANI 2353, KALPUR KOT NI RANG OPP: FRUIT MARKET KALUPUR, AHMEDABAD. 2. 402/AHD/2019 IN ITA NO.1611/AHD/2017 2014-15 DCIT, CIR.4(1)(1) AHMEDABAD. SHRI SUMIT D. SAVALIYA 401, AVDHESH HOUSE OPP: GURUDWARA S.G. HIGHWAY , AHMEDABAD. 3. 403/AHD/2019 IN ITA NO.1612/AHD/2017 2014-15 DCIT, CIR.4(1)(1) AHMEDABAD. SHRI VIPUL D. SAVALIYA 4, CHITRAKUT BUNGALOWS B/H. RAJPATH CLUB BODAKDEV , AHMEDABAD. / APPLICANTS BY : SHRI L.P. JAIN, SR.DR / RESPONDENTS BY : 1. SHRI M.K. PATEL, AR 2. SHRI ANKIT TALSANIA, AR / DATE OF HEARING 05/03/2021 / DATE OF PRONOUNCEMENT 25 /03/2021 / O R D E R PER RAJPAL YADAV, VICE PRESIDENT: THE PRESENT THREE MISCELLANEOUS APPLICATIONS ARE DI RECTED AT THE INSTANCE OF THE REVENUE POINTING OUT AN APPARENT ER ROR IN THE ORDER OF THE TRIBUNAL DATED 14/08/2019. MA NO. 334 /AHD/2019 & 2 OTHERS - 2 - 2. AT THE TIME OF HEARING, IT WAS BROUGHT TO OUR NO TICE THAT IDENTICAL ISSUE HAS BEEN CONSIDERED BY THE ITAT IN A LARGE NUMBER O F MISC. APPLICATIONS, AND A REFERENCE TO ORDER OF THE ITAT PASSED IN MA NO.40 1/AHD/2019 AND OTHERS WAS MADE. THE TRIBUNAL VIDE ITS ORDER DATED 9/9/20 20 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 CI RCULAR NO.17 OF 2019 DATED 08/08/2019, WHEREBY IT WAS PROVIDED THAT APPEALS OF THE REVENUE WILL NOT BE MAINTAINABLE BEFORE THE TRIBUNA L 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, T RIBUNAL HAS IDENTIFIED 628 APPEALS INCLUDING CROSS OBJECTIONS, WHERE TAX E FFECT BY VIRTUE OF RELIEF GIVEN BY THE LD.CIT(A) WAS LESS THAN RS.50 L AKHS. THE ITAT THE HELP OF THE CIRCULAR DISMISSED THOSE APPEALS. 3. IN THE PRESENT MISCELLANEOUS APPLICATION(S), IT HAS BEEN CONTENDED THAT AFTER THE CIRCULAR NO.17 OF 2019, TH E DEPARTMENT HAS ISSUED CIRCULAR 23 OF 2019 DATED 06/09/2019 WHICH R EADS 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 AUTHORITY - EXCEPTION TO MONETARY LIMITS FOR FILING APPEALS SPECIFIED 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 268 A OF THE INCOME-TAX ACT, 1961 (THE ACT), FOR LAYING DOWN MONETARY LIMITS AND OTHER CONDITIONS FOR FILING OF DEPARTMENTAL APPEALS BEFORE INCOME TAX AP PELLATE 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 NOTICE D THROUGH BOGUS LONG- TERM CAPITAL GAIN (LTCG)/SHORT TERM CAPITAL LOSS (S TCL) ON PENNY STOCKS AND DEPARTMENT IS UNABLE TO PURSUE THE CASES IN HIG HER JUDICIAL FORA ON MA NO. 334 /AHD/2019 & 2 OTHERS - 3 - ACCOUNT OF ENHANCED MONETARY LIMITS. IT HAS BEEN RE PORTED THAT IN LARGE NUMBER OF CASES. ITATS AND HIGH COURT HAVE RECOGNIZ ED THE UNIQUE MODUS OPERANDI INVOLVED IN SUCH SCAM AND HAVE PASSED JUDG MENTS IN FAVOUR OF THE REVENUE. HOWEVER, IN CASES WHERE SOME APPELLATE FOR A HAVE NOT GIVEN DUE CONSIDERATION TO POSITION OF LAW OR FACTS INVESTIGA TED BY THE DEPARTMENT, THERE IS NO REMEDY AVAILABLE WITH THE DEPARTMENT FOR FILI NG 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 MONETAR Y LIMITS FOR FILING OF DEPARTMENTAL APPEALS BEFORE INCOME TAX APPELLATE TR IBUNAL (ITAT), HIGH COURTS AND SLPS/APPEALS BEFORE SUPREME COURT, APPEA LS MAY BE FILED ON MERITS AS AN EXCEPTION TO SAID CIRCULAR, WHERE BOAR D, BY WAY OF SPECIAL ORDER DIRECT FILING OF APPEAL ON MERIT IN CASES INVOLVED IN ORGANISED TAX EVASION ACTIVITY. 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 AUTHORITY - SPECIAL ORDER OF BOARD EXEMPTING CASES INVOLVING BOGUS LONG TERM CAPITAL GAINS (LTCG)/SHOR T 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 TH EREIN THAT WHERE MA NO. 334 /AHD/2019 & 2 OTHERS - 4 - AN ASSESSEE HAS CLAIMED LONG TERM CAPITAL GAIN/SHOR T TERM CAPITAL LOSS ON PENNY STOCK AND ASSESSING OFFICER HAS DISA LLOWED SUCH CLAIM BY TREATING THE TRANSACTIONS OF THE ASSESSEE AS BOG US BUT CIT(A) HAS ALLOWED THE APPEALS ON SUCH ISSUES AND VACATED THE ACTION OF THE ASSESSING OFFICER, THEN IN SUCH CASES, APPEALS AT T HE INSTANCE OF REVENUE WOULD NOT BE DISMISSED ON THE STRENGTH OF C IRCULAR NO.17 OF 2019 DATED 08/08/2019, I.E. SIMPLY FOR THE REASON T HAT 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 APPEA LS BE RECALLED 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 CIRCULAR NO.23 OF 2019 DATED 06/09/2019 WOULD INDICATES THAT IT HA S NOT PROVIDED FOR RECALL OF EARLIER TRIBUNAL ORDERS, IT ONLY PROVIDES THAT IN FUTURE APPEALS BE FILED ON MERIT. HE FURTHER CONTENDED THAT THIS ASPECT HAS BEEN ELABORATELY CONSIDERED BY ITAT JAIPUR BENCHES IN MA NO.23/JP/2020 FOR AY 2014-15 VIDE ORDER DATED 20/03/2020. HE PLA CED ON RECORD A COPY OF THE TRIBUNALS ORDER. 7. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORDS CAREFULLY. THE TRIBUNAL HAS I DENTIFIED THE APPEALS INVOLVING TAX EFFECT BY VIRTUE OF RELIEF GIVEN BY T HE CIT(A) BELOW RS.50 LAKHS ON 14/08/2019 AND DISMISSED THOSE APPEALS. O N 14/08/2019, NO SUCH CIRCULAR WAS AVAILABLE. THE SUBSEQUENT CIRCUL AR, IN ANY CASE, WOULD NOT MAKE THE ORDER OF THE TRIBUNAL SUFFERING FROM AN APPARENT ERROR. THE CIRCULAR NO.23 OF 2019 OR OFFICE MEMORA NDUM F.NO.279/MISC./M-93/2018-ITJ (PT.) NOWHERE CONTEMPL ATES THAT THESE WILL BE APPLICABLE W.E.F. 08/08/2019, I.E. THE DAT E 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 BENC HES AND 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 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 MA NO. 334 /AHD/2019 & 2 OTHERS - 5 - INSTANT APPEAL AND THE CASE FALLS IN EXCEPTION OF P ENNY STOCK, AND THE MATTER WHICH HAS BEEN ALREADY BEEN DISMISSE D BY THE TRIBUNAL ON 21.08.2019, FOLLOWING CBDT'S EARLIER CI RCULAR DATED 8.8.2019 ON ACCOUNT OF LOW TAX EFFECT, CAN BE RECTI FIED 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 INCOM E-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 SEC TION 268A OF THE INCOME-TAX ACT, 1961 (THE ACT), FOR LAYING DOWN MON ETARY LIMITS AND OTHER CONDITIONS FOR FILING OF DEPARTMENTAL APPEALS 'BEFORE INCOME TAX APPELLATE TRIBUNAL (TTAT). 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 BOGUS LONG-TERM CAPITAL GAIN (LTCG)/SHORT T ERM CAPITAL LOSS (STCL) ON PENNY STOCKS AND DEPARTMENT IS UNABL E TO PURSUE THE CASES IN HIGHER JUDICIAL FORA ON ACCOUNT OF ENHANCE D MONETARY LIMITS. IT HAS BEEN REPORTED THAT IN LARGE NUMBER OF CASES, JTATS AND HIGH COURT HAVE RECOGNIZED THE UNIQUE MODUS OPERAND! INV OLVED IN SUCH SCAM AND HAVE PASSED JUDGMENTS IN FAVOUR OF THE REV ENUE. HOWEVER, IN CASES WHERE SOME APPELLATE FORA HAVE NOT GIVEN D UE CONSIDERATION TO POSITION OF LAW OR FACTS INVESTIGATED BY THE DEP ARTMENT, THERE IS NO REMEDY AVAILABLE WITH THE DEPARTMENT FOR FILING FUR THER APPEAL IN VIEW 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 TA X APPELLATE TRIBUNAL (ITAT), HIGH COURTS AND SLPS/APPEALS BEFOR E SUPREME COURT, APPEALS MAY BE FILED ON MERITS AS AN EXCEPTI ON 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 MEMORA NDUM DATED 16.09.2019 AND THE CONTENTS THEREOF READ AS U NDER:- 'SUBJECT: -SPECIAL ORDER OF BOARD EXEMPTING CASES I NVOLVING BOGUS LONG TERM CAPITAL GAINS(LTCG)/SHORT TERM CAPITAL LO SS (STCL) MA NO. 334 /AHD/2019 & 2 OTHERS - 6 - THROUGH PENNY STOCKS FROM MONETARY LIMITS SPECIFIED IN ANY CIRCULAR ISSUED UNDER SECTION 268A OF THE INCOME-TAX ACT, 19 61-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 CENTRAL BOARD OF DIRECT TAXES U/S 268A OF INCOME-TA X ACT, 1961, THE MONETARY LIMITS FIXED FOR FILING APPEALS BEFORE ITA T/HC AND SLPS /APPEALS BEFORE SUPREME COURT SHALL NOT APPLY IN CA SE 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 NOTWITHSTANDING MONETARY LIMITS FOR NOT FILING/PURS UING APPEALS IN TERMS OF ANY CIRCULAR ALREADY ISSUED UNDER SECTI ON 268A OF THE ACT SPECIFYING THE MONETARY LIMITS, 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 B E DECIDED BY WAY OF A SPECIAL ORDER PASSED BY THE CBDT. THERE IS THUS A SPECIFIC REQUIREMENT FOR ISSUANCE OF A SPECIAL ORDE R BY THE CBDT AND THEREFORE, UNLIKE GENERAL EXCEPTIONS CARVED OUT FROM FILING APPEALS ON MERITS, IN THESE CASES, INVOLVING LONG T ERM CAPITAL GAINS AND SHORT TERM CAPITAL GAINS EXEMPTION THROUG H 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 S HORT TERM CAPITAL GAINS EXEMPTION THROUGH PENNY STOCKS, WE FI ND THAT THE CBDT HAS SINCE COME OUT WITH A SPECIAL ORDER COMMUN ICATED VIDE OFFICE MEMORANDUM DATED 16.09.2019 STATING THA T MONETARY LIMITS FIXED FOR FILING APPEALS IN THESE C ASES BEFORE THE TRIBUNAL, HIGH COURT AND SUPREME COURT SHALL NOT AP PLY IN CASE OF ASSESSEE CLAIMING BOGUS LTCG/STCG THROUGH PENNY STOCK AND APPEAL SHALL BE FILED ON MERITS. THE SPECIAL OR DER THUS TALKS ABOUT FILING OF APPEAL IN SUCH CASES AND THEREFORE, IT RELATES TO ANY APPEAL IN SUCH CASES WHICH CAN BE FILED PURSUAN T TO SUCH AN ORDER ON AND AFTER THE DATE OF SUCH SPECIAL ORDER A ND THEREFORE DOESN'T CONTEMPLATE A SITUATION WHERE THE APPEAL WH ICH HAS ALREADY BEEN FILED PRIOR TO ISSUANCE OF SUCH A SPEC IAL ORDER BY THE REVENUE WHICH SHALL BE READ AND UNDERSTOOD AS F ILED PURSUANT TO SUCH SPECIAL ORDER. MA NO. 334 /AHD/2019 & 2 OTHERS - 7 - 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 LATT ER, 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 APPE AL HAS BEEN HELD TO BE COVERED BY A SUBSEQUENT LOW TAX EFFECT C IRCULAR AND DISMISSED ON ACCOUNT OF LOW TAX EFFECT. HOWEVER, IN THE INSTANT CASE, THE ISSUE IS REGARDING CARVING OUT AN EXCEPTI ON FROM SUCH LOW TAX EFFECT LIMITS AND THAT TOO, NOT JUST BY A G ENERAL ORDER BUT BY WAY OF A SPECIAL ORDER WHERE SUCH APPEALS CA N BE FILED, THEREFORE, UNLESS THE SPECIAL ORDER HAS BEEN PASSED BY THE CBDT AND AN APPEAL IS FILED PURSUANT TO SUCH A SPEC IAL ORDER, THE EXCEPTION CANNOT BE READ AND UNDERSTOOD TO APPL Y TO EXISTING APPEALS WHICH HAVE ALREADY BEEN FILED PRIO R TO ISSUANCE OF THE SPECIAL ORDER. THEREFORE, WE ARE OF THE CONS IDERED VIEW THAT THE CBDT CIRCULAR NO. 23 OF 2019 SHOULD BE REA D ALONG WITH SPECIAL ORDER OF THE CBDT DATED 16.09.2019 IN RESPE CT OF APPEALS FILED PURSUANT TO SUCH SPECIAL ORDER AND SH ALL 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. 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 DOESN'T FALL IN ANY EXCEPTION AS SO PRESCRIBED BY THE CBDT IN ITS EARLIER CIRCULAR DATE D 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 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 TH E TRIBUNAL ON 21.08.2019 AND THEREFORE, NON- CONSIDERATION OF SUC H 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. MA NO. 334 /AHD/2019 & 2 OTHERS - 8 - 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. 3. WE FIND THAT VERBATIM APPLICATIONS HAVE BEEN FIL ED IN THE PRESENT THREE CASES. THE STAND OF THE REVENUE IS THAT AFTE R CIRCULAR NO.17/2019, THE DEPARTMENT HAS ISSUED CIRCULAR NO.23/2019 DATED 6.9.2019. ACCORDING TO THE NEW CIRCULAR CERTAIN CLASSES OF CA SES HAVE BEEN CARVED OUT FROM AVAILING OF THE BENEFIT OF CIRCULAR NO.17 OF 2019. WE HAVE DISCUSSED THIS ISSUE IN OUR ORDER DATED 9.9.20 20, AND WE HAVE HELD THAT ON 14.8.2019 WHEN THE APPEALS WERE DISMIS SED 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 S TAND DISMISSED. 4. IN THE RESULT, ALL THE MISC. APPLICATIONS OF THE REVENUE ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 25/03/2021 SD/- SD/- (WASEEM AHMED ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER VICE PRESIDENT AHMEDABAD; DATED 25/03/2021