JUDGMENT :

J.B. Pardiwala, J.

1. The present Tax Appeal at the instance of the Revenue was filed with an application seeking condonation of delay of 17 days. We have passed an order today itself condoning the delay of 17 days. Ordinarily, we would have asked the Registry to notify the main matter i.e. the present Tax Appeal for admission after its due registration. However, as the question of law as proposed by the Revenue is no longer res integra, we decided to take up the main appeal also for hearing today itself.

2. This Appeal is at the instance of the Revenue and is directed against the order dated 14.08.2019 passed by the Income Tax Appellate Tribunal, 'A' Bench, Ahmedabad in the IT(SS) A No. 194/AHD/2019 for the A.Y. 2013-14. The Revenue has proposed the following question of law for the consideration of this Court:

"Whether the Appellate Tribunal is justified in law and on facts in disposing the appeal of the revenue on account of low tax effect without deciding the appeal on merits even when the issue under appeal was claim of bogus LTCG on penny stock for which no monetary limits were applicable?"

3. We have heard Mr. M.R. Bhatt, the learned Senior Counsel appearing for the Revenue and Mr. Manish J. Shah, the learned counsel appearing for the assessee.

4. It appears from the materials on record that the Appeal filed by the Revenue before the Tribunal came to be dismissed on the ground of low tax effect.

5. Mr. Bhatt, the learned Senior Counsel would submit that after the dismissal of the appeal by the Tribunal, the CBDT issued a Circular No. 23 of 2019 dated 06.09.2019 along with an Office Memorandum No. 279 dated 16.09.2019 providing that the cases involving Organized Tax Evasion Scam to bogus Long Term Capital Gain/Short Term Capital Loss on penny stocks would not be subjected to monetary limits prescribed for filing appeals. On the date when the Tribunal dismissed the appeal on the ground of low tax effect, indisputably, the CBDT Circular No. 23 of 2019 dated 06.09.2019 was not in force. However, Mr. Bhatt, very fairly pointed out that the argument of the Revenue that such circular should be applied with retrospective effect came to be negatived by a Coordinate Bench of this Court in the case of Principal Commissioner of Income-tax (Central), Ahmedabad v. Anand Natwarlal Sharda reported in 2021 (281) Taxmann 300 (Gujarat). This Court took the view that there is nothing to suggest in the Circular/Office Memorandum referred to above that the same would have a retrospective effect.

6. On the contrary from the language employed in the said Circular dated 06.09.2019, the Coordinate Bench noted that the appeals may be filed on merits as an exception to the other Circulars issued earlier. We quote the relevant observations made by the Coordinate Bench:

7. From the bare reading of the Circular dated 06.09.2019, it appears that the CBDT had decided that notwithstanding anything contained in any Circular issued under Section 268A specifying monetary limits for filing of departmental appeals before the Income Tax Appellate Tribunal (ITAT), High Courts and SLPs/Appeals before the Supreme Court, appeals may be filed on merits as the exception to the said Circular, where the Board by way of special order direct filing of appeals on merits in cases involved in organized tax evasion activity. The Office Memorandum dated 16.09.2019 was issued pursuant to the said circular dated 06.09.2019 stating inter alia that by virtue of the powers of CBDT under Section 268A of the Income Tax Act, the monetary limits fixed for filing appeals before ITAT/High Court and SLPs/Appeals before Supreme Court shall not lie in case of assessees claiming bogus 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 have retrospective effect. On the contrary, from the language employed in the said Circular dated 06.09.2019, it clearly transp