Reported In Principal Commissioner Of Income Tax,Central, Ahmedabad v. Anand Natwarlal Sharda,2021 128 Taxxman.com 376. The Same Has Beenfollowed In Very Many Other Matters Including Specialcivil Application

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/SPECIAL CIVIL APPLICATION NO. 14416 of 2021 ========================================================== PRINCIPAL COMMISSIONER OF INCOME TAX-1, AHMEDABAD VersusMANJU DINESHKUMAR GUPTA ========================================================== Appearance: MR MR BHATT with MR KARAN SANGHANI for M R BHATT & CO.(5953) forthe Petitioner(s) No. 1 for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANIand HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 06/12/2021 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. Petitioner has preferred this petition seeking tochallenge the order passed by Income Tax AppellateTribunal (“the Tribunal” for short) passed inM.A.No.35/AHD/2020 (In ITA No.2166/AHD/2017)challenge the order passed by Income Tax AppellateTribunal (“the Tribunal” for short) passed inM.A.No.35/AHD/2020 (In ITA No.2166/AHD/2017) for Assessment Year 2014-15 on 09.09.2020. 2. We have heard Mr.M.R.Bhatt, learned Senior Advocateappearing with Mr. Karan Sanghani for the petitionerwho have submitted that this very issue waschallenged by the department in the matter,whichwasdecidedbythisCourtappearing with Mr. Karan Sanghani for the petitionerwho have submitted that this very issue waschallenged by the department in the matter,whichwasdecidedbythisCourt reported in Principal Commissioner of Income Tax,Central, Ahmedabad vs. Anand Natwarlal Sharda,2021 128 taxxman.com 376. The same has beenfollowed in very many other matters including SpecialCivil Application No. 8622 of 2021. 3. The Court in the base matter has held thus: “5. The petitioner-original applicant having filed theMiscellaneous Application before the Tribunal underSection 254(2) of the said Act for rectifying themistake apparent from the record, it would be alsobeneficial to reproduce the relevant part of Section254(2) of the said Act: “254. Orders of Appellate Tribunal (1) *** (2) The Appellate Tribunal may, at any time withinsix years from the date of the order, with a view torectifying any mistake apparent from the record,amend any order passed by it under sub-section (1),and shall make such amendment if the mistake isbrought to its notice by the assessee or the AssessingOfficer” 6. So far as the facts of the case are concerned, theAppeal filed by the petitioner before the Tribunalagainst the order passed by the CIT(Appeals) wasdismissed by the Appellate Tribunal by a commonorder passed on 14.08.2019, in view of the CBDTcircular dated 08.08.2019. Admittedly, at therelevant time when the Tribunal passed the orderdated 14.08.2019, neither the Circular No. 23 of2019 dated 06.09.2019 nor the Office MemorandumNo. 279 dated 16.09.2019 was in existence. Apartfrom the fact that the said circular and the OfficeMemorandum being not in existence and thereforenot taken into consideration by the Tribunal while disposing all the Appeals could not be said to be amistake apparent from the record as contemplatedunder sub-section (2) of Section 254 of the said Act,the Court also does not find any substance in thesubmission of Mr. Bhatt that the Tribunal shouldhave recalled the order dated 14.08.2019 in view ofthe said Circular dated 06.09.2019 and the OfficeMemorandum dated 16.09.2019, which hadretrospective effect. The Court at this juncture doesnot think it appropriate to deal with the facts of thecase, as the main issue that falls for considerationbefore this Court in the present petition would be, asto whether the Circular dated 06.09.2019 and theOffice Memorandum dated 16.09.2019 had anyretrospective effect as sought to be submitted bylearned Advocate Mr. Bhatt. disposing all the Appeals could not be said to be amistake apparent from the record as contemplatedunder sub-section (2) of Section 254 of the said Act,the Court also does not find any substance in thesubmission of Mr. Bhatt that the Tribunal shouldhave recalled the order dated 14.08.2019 in view ofthe said Circular dated 06.09.2019 and the OfficeMemorandum dated 16.09.2019, which hadretrospective effect. The Court at this juncture doesnot think it appropriate to deal with the facts of thecase, as the main issue that falls for considerationbefore this Court in the present petition would be, asto whether the Circular dated 06.09.2019 and theOffice Memorandum dated 16.09.2019 had anyretrospective effect as sought to be submitted bylearned Advocate Mr. Bhatt. 7. From the bare reading of the Circular dated06.09.2019, it appears that the CBDT had decidedthat notwithstanding anything contained in anyCircularissuedunderSection268Aspecifying monetary limits for filing of departmentalappeals before the Income Tax Appellate Tribunal(ITAT), High Courts and SLPs/ Appeals before theSupreme Court, appeals may be filed on merits asthe exception to the said Circular, where the Boardby way of special order direct filing of appeals onmerits in cases involved in organized tax evasionactivity. The Office Memorandum dated 16.09.2019was issued pursuant to the said circular dated06.09.2019 stating inter alia that by virtue of thepowers of CBDT under Section 268A of the IncomeTax Act, the monetary limits fixed for filing appealsbefore ITAT/High Court and SLPs/Appeals beforeSupreme Court shall not lie in case of assesseesclaiming bogus LTCG/STCL through penny stocksand appeals/ SLPs in such cases appeals shall befiled on merits. There is nothing to suggest in thesaid Circular/ Office Memorandum that they shallhave retrospective effect. On the contrary, from thelanguage employed in the said Circular dated06.09.2019, it clearly transpires that the appealsmay be filed on merits as an exception to the otherCirculars issued earlier, where the Board by way ofspecial order direct filing of Appeals on merits in the cases involved in organized tax evasion activity.Therefore, by virtue of the said Circular dated06.09.2019, the appeals could be filed on merits,irrespective of the monetary limits fixed in earliercases, if the Board passes special order for filingappeals in cases involving tax evasion activity. Thesaid Circular speaks about the Appeals that may befiled with the special order of the Board in future,and hence could not be construed to haveretrospective effect. The Tribunal interpreting thesaid Circular/ Office Memorandum in the impugnedorder has rightly observed that in respect of eachcase or category of cases whether an appeal shouldbe filed in view of the Circular dated 06.09.2019 ornot shall be decided by the Board by way of specialorder, and thus a specific requirement of issuance ofspecial order by CBDT is a must. The Tribunaltherefore has rightly held that the CBDT Circular No.23/2019 dated 06.09.2019 should be read along withthe Office Memorandum dated 16.09.2019, in respectof the appeals to be filed pursuant to such specialorders of CBDT and shall apply to all the appealsfiled on or after 16.09.2019 by the revenue, wherethe tax effect may be low but the appeal could still befiled by the revenue on merits. 8. The appeals including the appeal in case of therespondent, which were disposed of by the Tribunalvide the common order dated 14.08.2019 could notbe said to have been filed pursuant to the specialorder of the CBDT in view of the Circular dated06.09.2019 read with the Office Memorandum dated16.09.2019, and therefore it could not be said thatthe Tribunal had committed any mistake apparentfrom the record, which would require rectification asenvisaged in Section 254(2) of the said Act. 8. The appeals including the appeal in case of therespondent, which were disposed of by the Tribunalvide the common order dated 14.08.2019 could notbe said to have been filed pursuant to the specialorder of the CBDT in view of the Circular dated06.09.2019 read with the Office Memorandum dated16.09.2019, and therefore it could not be said thatthe Tribunal had committed any mistake apparentfrom the record, which would require rectification asenvisaged in Section 254(2) of the said Act. 9. In that view of the matter, the Court does not findany illegality or infirmity in the impugned order dated09.09.2020 passed by the Tribunal dismissing theMiscellaneous Application filed by the petitioner. Thepetition being devoid of merits is dismissed in limine. 4. The question being identical, no separate reasons SUDHIR would be necessary. The petition stands dismissedaccordingly. (MS. SONIA GOKANI, J. ) (NISHA M. THAKORE,J)