| The Tax Publishers2021 TaxPub(DT) 0837 (Jp-Trib) INCOME TAX ACT, 1961
Section 254
Where appeal was filed by the Revenue on 5-11-2018 and present appeal was not filed pursuant to special order of the CBDT, dated 16-9-2019 and as the matter did not fall in any exception as so prescribed by the CBDT in its earlier Circular, dated 8-8-2019, appeal was rightly dismissed by the Coordinate Bench on account of low tax effect in the light of CBDT's Circular, dated 8-8-2019, therefore, non-consideration of subsequent CBDT Circular and the special order so passed by the CBDT was not a mistake apparent from record which can be rectified within the narrow compass of section 254(2).
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Appeal (Tribunal) - Rectification under section 254 - Maintainability of appeal on low tax effect - Non-consideration of subsequent CBDT Circular and the special order so passed by the CBDT
Revenue filed the present miscellaneous application against the order passed by Tribunal. Department submitted that the order of the Tribunal is not acceptable to the Department as Tribunal had not appreciated the finding of AO after considering the information received from Investigation Unit. It was clearly found that assessee had taken accommodation entry in the form of LTCG and paid commission, hence this was case of penny stock and falls under exception to monetary limits for filing appeals specified as per CBDT's Circular No. 23 of 2019, dated 6-9-2019. Despite the tax effect involved in the case which was below the limit prescribed by the Board vide Circular No. 17/2019 for filing appeal before the Tribunal, it was pleaded as per section 254(2) that the Order be recalled in view of exception to monetary limits for filing appeals specified as per CBDT's Circular No. 23 of 2019. Tribunal decided the appeal in favour of assessee, i.e., appeal of department was dismissed on account of low tax effect. Held: Revenue filed appeal on 5-11-2018 and therefore, the present appeal was not filed pursuant to special order of the CBDT, dated 16-9-2019 and as the matter did not fall in any exception as so prescribed by the CBDT in its earlier Circular, dated 8-8-2019, appeal was rightly dismissed by the Coordinate Bench on account of low tax effect in the light of CBDT's Circular, dated 8-8-2019. Both CBDT Circular No. 23 of 2019 and special Order, dated 16-9-2019 were not in existence and thus, not part of the record at the time when matter was heard or at the time of passing of order by the Tribunal. Therefore, non-consideration of subsequent CBDT Circular and the special order so passed by the CBDT was not a mistake apparent from record, which can be rectified within the narrow compass of section 254(2).
Relied:Dy. CIT, Circle-2, Jaipur. v. Shri Surendra Kumar Patni MA No. 68/JP/2019, dated 24-2-2020 : 2020 TaxPub(DT) 1321 (Jp-Trib), ITO Ito, Ward-2 (2) (5), Ahmedabad v. Satish M Patel [MA No. 377/Ahd/2019, ITA No. 948/Ahd/2019, dated 10-2-2020], ITO, Ward-3 (3) (1), Ahmedabad v. Ambrish Chandra Sharma [MA No. 369/Ahd/2019 arising out of ITA No. 2484/Ahd/2018, dated 10-2-2020] : 2020 TaxPub(DT) 1349 (Ahd-Trib) and Asstt. CIT v. Bharat Kothar [ITA. No. 156/JP/2019, dt. 228-2019].
REFERRED :
FAVOUR : In assessee's favour.
A.Y. :
IN THE ITAT, JAIPUR BENCH
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