The Income Tax Appellate Tribunal, However,Rejected The Said Rectification Application Vide Theimpugned Order Dated 09.09.2020 Holding As Under v. Being Dissatisfied By The Said Order Dated 09.09.2020Passed By The Income Tax Appellate Tribunal, The Revenueis Here Before Us By Way Of This Writ Application

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 13610 of 2021 ========================================================== THE PRINCIPAL COMMISSIONER OF INCOME TAX 1, AHMEDABAD VersusHARISH KESHAVLAL PATEL ==========================================================Appearance:M R BHATT & CO.(5953) for the Petitioner(s) No. 1(1) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALAandHONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 04/01/2022 ORAL ORDER (PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE) 1.By way of this writ application, the writ applicant haschallenged the order dated 09.09.2020 passed by theIncome Tax Appellate Tribunal, Ahmedabad Bench in theMisc. Application No.91/Ahd/2020 (ITA No.1837/Ahd/2013). 2.The brief facts which emerges from the record are asunder; 2.1The writ applicant has preferred the Misc. Applicationfor recall of the order dated 14.08.2019 passed by theIncome Tax Appellate Tribunal. The said Misc. Applicationwas preferred for rectification of the original order dismissing the appeal by the Tribunal on the ground thatthe issue has wrongly been considered on the ground oflow tax effect being involved, more particularly, byreferring to the exception as mentioned in CircularNo.23/2019 dated 06.09.2019 as the transactions enteredinto by the assessee concerns with the penny stock 2.2The Income Tax Appellate Tribunal, however,rejected the said rectification application vide theimpugned order dated 09.09.2020 holding as under; “7.We have duly considered the rival contentionsand gone through the records carefully. The Tribunalhas identified the appeals involving tax effect byvirtue of relief given by the CIT(A) below Rs.50 lakhson 14.08.2019 and MA No.401/Ahd/2019 (In IT(ss)ANo.178/Ahd/2018). The DCIT vs. Shri Dhiren H. VoraAsst. Year-2011-12 (and 12 Others) dismissed thoseappeals. On 14.08.2019, no such Circular wasavailable. The subsequent Circular, in any case,would not make the order of the Tribunal sufferingfrom an apparent error. The Circular No.23 of 2019or Office Memorandum F.No.279/Misc./M-93/2018-IT.J(PT.) nowhere contemplates that these will beapplicable w.e.f. 08/08/2019, i.e, the date whenCircular No.17 of 2019 was issued.” 2.3Being dissatisfied by the said order dated 09.09.2020passed by the Income Tax Appellate Tribunal, the Revenueis here before us by way of this writ application. 3.We have heard Mr. M.R. Bhatt, the learned seniorcounsel appearing for the Revenue. Mr. Bhatt has invited the attention of this Court to the order dated 24.06.2021passed by this Court in the Special Civil ApplicationNo.7520 of 2021 and submitted that the issue underconsideration has already been decided by this Court bythe aforesaid order. We quote the observations made bythe Coordinate Bench as contained in Paras-7,8 and 9respectively as under; 2.3Being dissatisfied by the said order dated 09.09.2020passed by the Income Tax Appellate Tribunal, the Revenueis here before us by way of this writ application. 3.We have heard Mr. M.R. Bhatt, the learned seniorcounsel appearing for the Revenue. Mr. Bhatt has invited the attention of this Court to the order dated 24.06.2021passed by this Court in the Special Civil ApplicationNo.7520 of 2021 and submitted that the issue underconsideration has already been decided by this Court bythe aforesaid order. We quote the observations made bythe Coordinate Bench as contained in Paras-7,8 and 9respectively as under; “7. From the bare reading of the Circular dated06.09.2019, it appears that the CBDT had decidedthat notwithstanding anything contained in anyCircular issued under Section 268A specifyingmonetary limits for filing of departmental appealsbefore the Income Tax Appellate Tribunal (ITAT),High Courts and SLPs/Appeals before the SupremeCourt, appeals may be filed on merits as theexception to the said Circular, where the Board byway of special order direct filing of appeals on meritsin cases involved in organized tax evasion activity.The Office Memorandum dated 16.09.2019 wasissued pursuant to the said circular dated 06.09.2019stating inter alia that by virtue of the powers of CBDTunder Section 268A of the Income Tax Act, themonetary limits fixed for filing appeals beforeITAT/High Court and SLPs/Appeals before SupremeCourt shall not lie in case of assessees claimingbogus LTCG/STCL through penny stocks and appeals/SLPs in such cases appeals shall be filed on merits.There is nothing to suggest in the said Circular/Office Memorandum that they shall haveretrospective 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 thecases involved in organized tax evasion activity.Therefore, by virtue of the said Circular dated 06.09.2019, 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, inrespect of the appeals to be filed pursuant to suchspecial orders of CBDT and shall apply to all theappeals filed on or after 16.09.2019 by the revenue,where the tax effect may be low but the appeal couldstill be filed 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 orderdated 09.09.2020 passed by the Tribunal dismissingthe Miscellaneous Application filed by the petitioner.The petition being devoid of merits is dismissed inlimine.” 4.In view of the aforesaid, this writ application fails andis hereby rejected. (J. B. PARDIWALA, J) (NISHA M. THAKORE,J) Vahid