TaxTMI 
TaxTMI 
2022 (3) TMI 1562
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.... fixed for filing further appeals r.w. special circular dated 16.9.2019, shall not apply in cases where the assesses are claiming bogus LTCG/STCL through alleged transaction in penny stocks and appeals in such cases shall be filed on merits. It is submitted that in this case, the assessee had claimed bogus LTCG of Rs. 63,79,359/- on sale of penny stocks of Lifeline Drugs and Pharma Ltd., and Kailash Auto Finance Limited. 2. It is stated that the Tribunal has not dealt the matter on merits but dismissed on the ground of monetary limits. Therefore, the order be recalled and decided on merits. 3. At the time of hearing, reiterating the contents raised in the miscellaneous petition, ld Sr DR submitted that in view of the CBDT Circular No. 23 ....
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....se appeals. On 14/08/2019, no such Circular was available. The subsequent Circular, in any case, would not make the order of the Tribunal suffering from an apparent error. The Circular 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. 08/08/2019, i.e. the date when Circular No. 17 of 2019 was issued. 8. After from the above observation, we find that this aspect has been elaborately considered by the ITAT Jaipur Benches and the discussions made by the Tribunal read as under: "3. We have heard the rival contentions and perused the material available on record. The limited issue under consideration is whether CBDT Circular no. 23 of 2019 dated 6.09.2019 read wi....
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....ur of the revenue. However, in cases where some appellate forum have not given due consideration 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 monetary limits. 3. In this context, Board has decided that notwithstanding anything contained in any circular issued u/s 268A specifying monetary limits for filing of departmental appeals before Income Tax Appellate Tribunal (ITAT), High Courts 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....
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....ke general exceptions carved out from filing appeals on merits, in these cases, involving long term 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 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 short term capital gains exemption through penny stocks, we find that the CBDT has since come out with a special order communicated vide office memorandum dated 16.09.2019 stating that monetary 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 throu....
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....ls 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 along with special order of the CBDT dated 16.09.2019 in respect of appeals filed pursuant to such special order and shall 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 was filed on 22.05.2019 and therefore, the present appeal was not 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....