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Income Tax Appellate Tribunal, “C” BENCH, AHMEDABAD
Before: S/SHRI PRAMOD M. JAGTAP & T.R. SENTHIL KUMAR
PER T.R. SENTHIL KUMAR, JUDICIAL MEMBER:
This appeal is filed by the Revenue against order dated 31.07.2018 passed by Ld.Commissioner of Income-tax (Appeals)-3, Ahmedabad [for short “Ld.CIT(A)] in Appeal No.CIT(A)- 3/296/3(3)(5)/17-18 arising out of original assessment order passed under section 143(3) of Income Tax Act, 1961 ("the Act" for short) relating to the assessment year 2015-16.
At the outset, the ld.counsel for the assessee has raised a preliminary objection that the appeal filed by the Revenue is not maintainable because of tax effect involved in this appeal is below
2 Rs.50 lakhs in view of the CBDT circular dated 8.8.2019 prohibiting of the appeal before the Tribunal. Besides that circular no.23 of 2019 dated 6.9.2019 is also not applicable to the case of the Revenue, because the appeal has been filed by the Revenue on 11.9.2018 and the impugned circular dated 23 of 2019 and clarification by Office Memorandum dated 16.9.2019 shall be applicable prospectively i.e. to those appeals which are filed on or after 16-9-2019. For the proposition, the ld.counsel for the assessee has relied upon the decision of Hon’ble jurisdictional High Court in the case of Pr.CIT, Ahmedabad Vs. Anand Natwarlal Sharda reported in (2021) 128 taxmann.com 376 (Guj), and therefore, the appeal of the Revenue is liable to be dismissed at the threshold.
On the other hand, the ld.DR defended in support of the case of the Department that CBDT circular no.23 of 2019 dated 6.9.2019 clarified that cases involving organized tax evasion scam through bogus long term capital gain/short term capital loss on penny stock were not made subject to the monetary as prescribed under the CBDT circular dated 8.8.2019 restricting the filing of appeal before the Tribunal. Therefore, subsequent circular no.23 of 2019 dated 6.9.2019 is clarificatory in nature and applicable retrospectively. However, he is unable to contest decision of the jurisdictional High Court in the case of Pr.CIT Vs. Anand Natwarlal Sharda (supra) cited by the ld.counsel for the assessee.
We have given our thoughtfully consideration on the issue. We have also gone through the judgment of Hon’ble Gujarat High Court in the case of Anand Natwarlal Sharda (supra). We find that similar issue about the applicability of the impugned CBDT circular, whether retrospective or prospective in nature has been decided by the Hon’ble jurisdictional High Court in the case cited (supra). To 3 decide the issue on hand, it would suffice us to reproduce head-note of judgment of Hon’ble Court, which read as under: “Section 268A of the Income-Tax Act, 1961 - Filing of appeal or application for reference by income-tax authority (Circular No. 23/2019) - Whether CBDT Circular No. 23/2019 dated 6-9-2019 and Office Memorandum No. 279 dated 16-09-2019 issued by CBDT both providing that cases involving organized tax evasion scam through bogus long term capital gain/short term capital loss on penny stocks were not subjected to monetary limits prescribed for filing appeals, would apply prospectively to appeals filed on or after 16-09-2019 and same would not apply retrospectively to pending appeals - Held, yes [Para 7] [In favour of revenue.] 5. In the light of above judgment of Hon’ble jurisdictional High Court, we find that the appeal of the Revenue was filed on 11.9.2018 and therefore, the same was not filed pursuant to impugned circular of the CBDT dated 16.09.2019 and the applicability of the same is prospective in nature and not retrospectively to the pending appeals. Thus, the matter doesn't fall in any exception as so prescribed by the CBDT in its earlier circular dated 8.8.2019 and doesn't apply in the present case. Respectfully following the decision of Hon’ble jurisdictional High Court cited (supra), we dismiss the appeal of the Revenue in limine as not maintainable.
In the result, the appeal of the Revenue is dismissed due to tax effect. Order pronounced in the Court on 28th February, 2022 at Ahmedabad.