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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
Before: SHRI C. N. PRASAD, JM & SHRI S. RIFAUR RAHMAN, AM
IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHRI C. N. PRASAD, JM & SHRI S. RIFAUR RAHMAN, AM आयकरअपीलसं./ 3831, 4546 & 5594/Mum/2016 (निर्धारणवर्ा / Assessment Year: 2010-11 to 2013-14) DCIT CC-7(1), Room no. Shri Vinay Ramakant 653, 6th floor, Aayakar Sapte, बिधम/ 61/62, Tower A, Bhavan, M. K. Road, Mumbai400 022 Vs. Kalpataru Residency, Opp. Cine Planet, Sion (E), Mumbai-400 022 स्थायीलेखासं./जीआइआरसं./PAN No. AADPS6169H (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Shri Prashant Kumar Gupta, DR प्रत्यथीकीओरसे/Respondentby : Ms. Pooja Shah, Shri Kiran Kapadia, ARs. सुनवाईकीतारीख/ : 04.03.2020 Date of Hearing घोषणाकीतारीख / : 11.08.2020 Date of Pronouncement आदेश / O R D E R PER S. RIFAUR RAHMAN (ACCOUNTANT MEMBER):
The present four appeals have been filed by the revenue against the order of Ld. Commissioner of Income Tax (Appeals)-
Since the issues raised in all the appeals are identical, therefore, for the sake of convenience, these appeals are clubbed, heard and disposed off by this consolidated order. Firstly, we are taking for AY 2012-13 filed by the revenue.
The brief facts of the case are that assessee has filed its return of income on 30.09.2012 declaring total income of Rs. 3,60,830/-. A search and seizure action under section 132 of the IT Act was conducted at office and residential premises of Ms Maneesh Pharmaceuticals Group on 29.08.2011. Being one of the associate members of the above group, the residential premises was also covered under search and seizure action. Subsequently, the case was selected for scrutiny and notice u/s.143(2) and 142(1) of the I.T. Act, 1961 were issued and served upon the assessee. In response, assessee filed relevant information as called for and after considering the detail
Aggrieved with the above order, assessee preferred appeal before Ld. CIT(A) and made the detail submission before Ld. CIT(A) with respect to addition/disallowance made by the AO, and Ld. CIT(A) considering the submission of assessee, partly allowed the appeal of assessee.
Aggrieved with the above order, revenue preferred the appeal before us with the following grounds:-
1. "On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in deleting the addition of Rs. 9,31,460/- made by the AO on account of deemed let out property without appreciating the facts that flat no. 63 is a distinct and unconnected unit which was earlier the SOP of the assessee and that although the flats numbered 61 & 62 are interconnected with each other, the alteration is not approved by the competent authority and therefore the three fiats, together represent three different housing units as they have been named, numbered and purchased as such."
2. "On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in deleting the addition of Rs. 4 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte 7,20,000/- made by the AO on account of low withdrawals without appreciating the facts that the assessee's own cash withdrawals including those of the members of his joint family amount to less than Rs. 31,000/- per member per month which cannot be perceived as sufficient for an upper class family residing in Mumbai." and "On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in deleting the addition of Rs. 7,20,000/- made by the AO on account of low withdrawals without appreciating the facts that mere cash withdrawals do not necessarily amount to the withdrawn sums being put to household use, without verifying as to whether any money out of the withdrawal has been utilized for the purposes of incurring any business expenditure in the hands of any of the six entities of the assessee's family or their business.
3. On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in deleting the disallowance of Rs. 98.05,878/- made by the AO under section 57(iii) of the Act without appreciating the facts that the assessee has accepted the fact that monies borrowed at a higher rate of interest has been utilized in avenues which offer a lower rate of interest and that too in a company in which the assessee is interested.
5 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte 4. On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in deleting the disallowance of Ps. 75,55,490/- made by the AO under section 14A of the Act without appreciating the facts that the balance in the assessee's capital account is already utilized in the firm of assets lying in the balance sheet of the assessee and, therefore, the provisions of section 14A are required to be implemented in the case of the assessee."
The appellant prays that the order of the C1T(A) on the above grounds be set aside and that of the Assessing Officer be restored.
The appellant craves leave to amend or alter any ground and/or add new grounds which may be necessary.
With regard to ground no. 1, Ld. DR submitted before us that Ld CIT(A) erred in deleting the addition of Rs. 9,31,460/- made by the AO on account of deemed let out property without appreciating the facts that flat no. 63 is a distinct and unconnected unit which was earlier the SOP of the assessee and that although the flats numbered 61 & 62 are interconnected with each other, the alteration is not approved by the competent authority and therefore the three fiats, together represent three
7. On the other hand, Ld. AR submitted that the Assessing Officer has made addition on the ground that the assessee is the Owner of Three Properties. Flat No 63 which is owned by him which is considered as self occupied & Flat No 61 & 62 transferred by him in name of his wife otherwise than for adequate consideration and therefore deemed to be owner of two properties in terms of provisions of Section 27(i) of the Income Tax Act and therefore AO proceeded to make addition by treating the other two properties as deemed to be Let Out.
8. He further submitted that assessee is the Owner of Unit No 63, 61 & 62 at Kalpataru Residency Sion. At the end of the Financial Year 2007-08 Flat No 61 & 62 are transferred by assessee to his wife. Mr. Maneesh Sapte, the brother of assessee is the owner of Flat No 51 & 52. He further submitted that all the aforesaid flats are interconnected having common kitchen and entrance and they are used as Single Dwelling Unit. In the course of Remand Proceeding assessee has submitted documents 7 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte showing modification work carried out for interlinking the aforesaid flats and assessee has also submitted layout plan of the combined flat showing single kitchen and common entrance making the flats as single dwelling unit. 9. He further submitted that section 23(4) of the Act, 1961 uses the words "One House" & Section 54 of the Income Tax Act, 1961 also uses the same words "a residential house". While analyzing the provisions of Section 54 of the Act, the Hon'ble Mumbai ITAT in the following cases has dealt with the meaning of the term "a house" a) ACIT Vs Ajay Sharad Khankhoje, 34 CCH 001 b) Income Tax Officer Vs. Ms. Sushila NI. 109 '11.1 0299 c) Income Tax Officer Vs. Ms. Sandhya Saxena, 7 SOT 527 10. He brought to our notice the observation of Assessing Officer in para no. 4.1 of the Remand Proceedings, which is as under:- In support of his contention assessee has submitted documents modification work carried out for interlinking the flat No. 61, 62, 51 & 52 and the layout plan of the combined flat which shows single kitchen and a common 8 I.T.A. No. 3830, 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte entrance, making it a single dwelling Unit. However, it is noticed that Flat No. 63, which the assessee has originally owned, is not inter-linked with other flats, as flat no. 63 is on the other side of lobby on the 6th floor and the same cannot be joined with other flats. But, the assessee claims that all the units are used as single dwelling unit by the joint family.
11. He further brought to our notice the observation of Ld. CIT(A) that Ld. CIT(A) while passing the order held the assessee has expanded his house by adding two flats to his existing flats on the same floor & further held that since three flats 63, 61 & 62 are used as Single Dwelling Unit by the assessee and his family Members the same should be considered as one house within the meaning of Section 23(2) of the Income Tax Act, 1961.
Considered the rival submission and material placed on record. We notice from the record that in remand proceedings, AO has agreed with the documents submitted by assessee that the flat nos. 61, 62, 51 and 52 are combined and having single kitchen and common entrance, therefore, it satisfies the definition of single dwelling unit. Therefore, we are inclined to accept the 9 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte findings of Ld. CIT(A) and accordingly, ground raised
by revenue is dismissed.
13. With regard to ground no. 2, Ld. DR submitted that Ld CIT(A) erred in deleting the addition of Rs. 7,20,000/- made by the AO on account of low withdrawals without appreciating the facts that the assessee's own cash withdrawals including those of the members of his joint family amount to less than Rs. 31,000/- per member per month which cannot be perceived as sufficient for an upper class family residing in Mumbai.
14. He further submitted that Ld CIT(A) erred in deleting the addition of Rs. 7,20,000/- made by the AO on account of low withdrawals without appreciating the facts that mere cash withdrawals do not necessarily amount to the withdrawn sums being put to household use, without verifying as to whether any money out of the withdrawal has been utilized for the purposes of incurring any business expenditure in the hands of any of the six members of the assessee's family or their business.
15. On the other hand, Ld. AR submitted that assessee stays in a Joint Family, which fact is already established and total withdrawals of the family for the year were Rs. 2.61 crores and 10 I.T.A. No. 3830, 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte cash withdrawals therefrom were 34.44 lacs. He further submitted that the AO has not mentioned any basis as to how he has estimated an amount of Rs. 60,000 P. m.
16. Considered the rival submission and material placed on record. We notice from the record that the assessee is living in the joint family consisting of 6 members. Such family members having independent income. Ld. CIT(A) has observed that the family has a withdrawal of Rs. 34.44 lakhs during FY 2011-12 and it appears to be adequate to maintain the entire family. Therefore, we are inclined to accept the findings of Ld. CIT(A) and accordingly, ground raised by revenue is dismissed.
17. With regard to ground no. 3, Ld. DR submitted that Ld CIT(A) erred in deleting the disallowance of Rs. 98.05,878/- made by the AO under section 57(iii) of the Act without appreciating the facts that the assessee has accepted the fact that monies borrowed at a higher rate of interest has been utilized in avenues which offer a lower rate of interest and that too in a company in which the assessee is interested and supported the findings of AO.
11 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte 18. On the other hand, Ld. AR submitted that the only contention of Assessing Officer for making this addition is that assessee has given general submission without specifying the nexus between interest expenses expended with Interest Income earned. He further submitted that n the course of appellate proceedings, assessee has given a detailed chart explaining the nexus of interest earned with interest expended.
He brought to our notice the observation of Ld. CIT(A), which is reproduced below:- a) Ld. CIT(A) has deleted Interest addition of Rs. 29,57,708/- paid to LIC by observing the fact that these Interest expenditure has direct nexus with Interest earned from M/s Maneesh Pharmaceuticals Ltd. b) As regards Interest of Rs. 68,48,170/- paid to Dr. Balkrishna Hedge, the Ld. CIT(A) has observed the fact that these Interest expenditure has direct nexus with Interest earned from M/s Maneesh Pharmaceuticals Ltd.
In the light of the above, both the Interest paid to LIC & Dr. Balkrishna Hedge is considered as allowable as deduction under Income Tax Act. 1961. 12 I.T.A. No. 3830, 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte 21. He further submitted that the AO also while passing the Order dated 04.05.2017 u/s 250 of the Income Tax Act. 1961 for the Assessment Year 2011-12 on direction of Ld. CIT(Appeal) has already verified the fact that Interest earned on Loan given to Dr. Balkrishna Hedge has direct nexus with Interest earned from MPL and therefore, the same is allowable as deduction u/s 57(iii) of the Income Tax Act, 1961.
Considered the rival submission and material placed on record. We notice from the record that the assessee has borrowed loan from LIC and from Dr. Balkrishna Hedge. With regard to loan from LIC, we observe that M/s Maneesh Pharmaceuticals Ltd. assigned the keyman insurance policy in favour of assessee alongwith the loan taken against the above policy. The loan is secured with the keyman insurance. Since, it is assigned to assessee, the loan also transferred in the name of assessee and assessee has paid interest on the above loan to the extent of Rs. 29,57,708/- to LIC. This payment of interest is towards the loan assigned in the name of assessee and direct connection with the loan given to the company M/s Maneesh Pharmaceuticals Ltd. Therefore, there is direct link to the interest income earned by the 13 I.T.A. No. 3830, 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte assessee. Therefore, it is allowable expenditure u/s 57(iii) of the Act. With regard to Interest payment to Mr. Balkrishna Hedge, we notice that M/s Maneesh Pharmaceuticals Ltd. has taken loan from assessee and assessee has received the funds from Mr. Balkrishna Hedge on 26.11.2010 and subsequently, assessee has transferred the same to M/s Maneesh Pharmaceuticals Ltd and the company has utilized the same in their upcoming projects. Therefore, there is clear findings of Ld. CIT(A) that assessee has earned the interest income from M/s Maneesh Pharmaceuticals Ltd. and there is direct link to the loan given to them and link to the loan taken from Mr. Balkrishna Hedge. Therefore, it is established that the interest expenditure is linked to the interest income earned by assessee from the company. Therefore, it is allowable expenditure u/s 57(iii) of the Act. Therefore, we are inclined to accept the findings of Ld. CIT(A) and accordingly, ground raised
by revenue is dismissed.
23. With regard to ground no. 4, Ld. DR submitted that Ld CIT(A) erred in deleting the disallowance of Ps. 75,55,490/- made by the AO under section 14A of the Act without 14 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte appreciating the facts that the balance in the assessee's capital account is already utilized in the form of assets lying in the balance sheet of the assessee and, therefore, the provisions of section 14A are required to be implemented in the case of the assessee.
On the other hand, Ld. AR submitted that AO has made addition or Rs. 75,55,190/- u/s 14A on the ground that the assessee has shown dividend Income of Rs. 18.880 /- but not shown any expenditure incurred.
He further submitted that interest of Rs. 29,57,308/- paid to LIC, Rs. 68,48,170/- paid to Dr. Balkrishna Hedge has direct & immediate nexus with Interest Income earned from M/s Maneesh Pharmaceuticals Ltd. and therefore same is allowable as deduction u/s 57(iii) of the Act, 1961 & accordingly, the same does not fall within the purview of Section 14A read with Rule 8D of the Income Tax Act. 1961.
He relied on the following Judgments:- a) REI Agro Ltd Vs DCIT, 98 DTR 339, ITAT Kolkata Bench b) Arnav Gruh Ltd, Mumbai Vs Assessing officer, ITA 5349/Mum/2011, ITAT Mumbai
He brought to our notice the observation of Ld. CIT(A) in para no. 1 on page 36, which is as under:- “In para 8.7 above, the Interest expense of Rs. 98,05,878/- has been allowed u/s 57(iii) of the Act. Since the Interest expenses allowed are directly attributable to earning of Interest Income from M/s Maneesh Pharmaceuticals Ltd, disallowance under Rule 8D(2)(ii) is not required with respect to such expenditure.”
Considered the rival submission and material placed on record. We notice from the record that AO has invoked provisions u/s 14A and disallowed interest expenditure u/s 8D(2) and not identified any administrative expenses. The interest expenditure incurred by assessee is already established that assessee has financed to his own company and earned interest income. The interest expenditure incurred by assessee is directly linked to the interest income earned during the year and it is not incurred to make investment. Therefore, there is no separate interest expenditure incurred by assessee other than the interest 16 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte incurred to earn interest income. In our considered view, the findings of Ld. CIT(A) is proper as per the facts. Therefore, we are inclined to accept the findings of Ld. CIT(A) in deleting the disallowance u/r 8D(2)(ii) of the rules. With regard to the rule 8D(2)(iii), assessee has not claimed any administrative expenditure and however, as per rule 8D(2)(iii), AO has to disallow 0.5% of the average investments. We notice that assessee has earned dividend income of Rs. 18,880/-. AO can calculate 0.5% of the average investments on which assessee has actually earned dividend income. AO should not calculate any other investment in which assessee has not earned any dividend income. Therefore, with the above direction, we are partly allowing the ground raised
by revenue.
29. Consequently, the appeal filed by the revenue stands partly allowed.
30. Since we have already decided the similar grounds of appeal in ITA No. 4546/Mum/2016 for AY 2012-13 filed by the revenue, therefore the other appeals filed by the revenue are also partly allowed.
17 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte 31. In the net result, all the appeals filed by the revenue are partly allowed.
It is pertinent to mention here that this order is pronounced after a period of 90 days from the date of conclusion of the hearing. In this regard, we place reliance on the decision of co- ordinate bench of this Tribunal in the case of JSW Ltd in ITA Nos. 6264 & 6103/Mum/2018 dated 14.5.2020, wherein this issue has been addressed in detail allowing time to pronounce the order beyond 90 days from the date of conclusion of hearing by excluding the days for which the lockdown announced by the Government was in force. The relevant observations of this tribunal in the said binding precedent are as under:-
However, before we part with the matter, we must deal with one procedural issue as well. While hearing of these appeals was concluded on 7th January 2020, this order thereon is being pronounced today on 14th day of May, 2020, much after the expiry of 90 days from the date of conclusion of hearing. We are also alive to the fact that rule 34(5) of the Income Tax Appellate Tribunal Rules 1963, which deals with pronouncement of orders, provides as follows:
(5) The pronouncement may be in any of the following manners:— (a) The Bench may pronounce the order immediately upon 18 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte the conclusion of thehearing. (b) In case where the order is not pronounced immediately on the conclusion of the hearing, the Bench shall give a date forpronouncement.
(c ) In a case where no date of pronouncement is given by the Bench, every endeavour shall be made by the Bench to pronounce the order within 60 days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of exceptional and extraordinary circumstances of the case, the Bench shall fix a future day for pronouncement of the order, and such date shall notordinarily(emphasis supplied by us now) be a day beyond a further period of 30 days and due notice of the day so fixed shall be given on the noticeboard.
Quite clearly, “ordinarily” the order on an appeal should be pronounced by the bench within no more than 90 days from the date of concluding the hearing. It is, however, important to note that the expression “ordinarily” has been used in the said rule itself. This rule was inserted as a result of directions of Hon’ble jurisdictional High Court in the case of Shivsagar Veg Restaurant Vs ACIT [(2009) 317 ITR 433 (Bom)] wherein Their Lordships had, inter alia, directed that “We, therefore, direct the President of the Appellate Tribunal to frame and lay down the guidelines in the similar lines as are laid down by the Apex Court in the case of Anil Rai (supra) and to issue appropriate administrative directions to all the benches of the Tribunal in that behalf. We hope and trust that suitable guidelines shall be framed and issued by the President of the Appellate Tribunal within shortest reasonable time and followed strictly by all the Benches of the Tribunal. In the meanwhile (emphasis, by underlining, supplied by us now), all the revisional and appellate authorities under the Income-tax Act are directed to decide matters heard by them within a period of three months from the date case is closed for judgment”. In the ruled so framed, as a result of these directions, the expression “ordinarily” has been inserted in the requirement to pronounce the order within a period of 90 days. The question then arises whether the passing of this order, beyond ninety days, was necessitated by any “extraordinary” circumstances.
Let us in this light revert to the prevailing situation in the country. On 24th March, 2020, Hon’ble Prime Minister of India took the bold step of imposing a nationwide lockdown, for 21 days, to prevent the spread of Covid 19 epidemic, and this lockdown was extended from time to time. As a matter of fact, even before this formal nationwide lockdown, the functioning of the Income Tax Appellate Tribunal at Mumbai was severely restricted on account of lockdown by the Maharashtra Government, and on account of strict enforcement of health advisories with a view of checking spread of Covid 19. The epidemic situation in Mumbai being grave, there was not much of a relaxation in subsequent lockdowns also. In any case, there was unprecedented disruption of judicial wok all over the country. As a matter of fact, it has been such an unprecedented situation, causing disruption in the functioning of judicial machinery, that Hon’ble Supreme Court of India, in an unprecedented order in the history of India and vide order dated 6.5.2020 read with order dated 23.3.2020, extended the limitation to exclude not only this lockdown period but also a few more days prior to, and after, the lockdown by observing that “In case the limitationhasexpired after 15.03.2020 then the period from 15.03.2020 till the date on which the lockdown is lifted in the jurisdictional area where the dispute lies or where the cause of action arises shall be extended for a period of 15 days after the lifting of lockdown”. Hon’ble Bombay High Court, in an order dated 15th April 2020, has, besides extending the validity of all interim orders, has also observed that, “It is also clarified that while calculating time for disposal of matters made time-bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly”, and also observed that “arrangement continued by an order dated 26th March 2020 till 30th April 2020 shall continue further till 15th June 2020”. It has been an unprecedented situation not only in India but all over the world. Government of India has, vide notification dated 19th February 2020, taken the stand that, the coronavirus “should be considered a case of natural calamity and FMC (i.e. force majeure clause) maybe invoked, wherever considered appropriate, following the due procedure…”. The term ‘force majeure’ has been defined in Black’s Law Dictionary, as ‘an event or effect that can be neither anticipated nor controlled’ When such is the position, and it is officially so notified by the Government of India and the Covid-19 epidemic has been notified as a disaster under the National Disaster Management Act, 2005, and also in the light of the discussions above, the 20 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte period during which lockdown was in force can be anything but an “ordinary”period.
10.In the light of the above discussions, we are of the considered view that rather than taking a pedantic view of the rule requiring pronouncement of orders within 90 days, disregarding the important fact that the entire country was in lockdown, we should compute the period of 90 days by excluding at least the period during which the lockdown was in force. We must factor ground realities in mind while interpreting the time limit for the pronouncement of the order. Law is not brooding omnipotence in the sky. It is a pragmatic tool of the social order. The tenets of law being enacted on the basis of pragmatism, and that is how the law is required to interpreted. The interpretation so assigned by us is not only in consonance with the letter and spirit of rule 34(5) but is also a pragmatic approach at a time when a disaster, notified under the Disaster Management Act 2005, is causing unprecedented disruption in the functioning of our justice delivery system. Undoubtedly, in the case of Otters Club Vs DIT [(2017) 392 ITR 244 (Bom)], Hon’ble Bombay High Court did not approve an order being passed by the Tribunal beyond a period of 90 days, but then in the present situation Hon’ble Bombay High Court itself has, vide judgment dated 15th April 2020, held that directed “while calculating the time for disposal of matters made time- bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly”. The extraordinary steps taken suomotu by Hon’ble jurisdictional High Court and Hon’ble Supreme Court also indicate that this period of lockdown cannot be treated as an ordinary period during which the normal time limits are to remain in force. In our considered view, even without the words “ordinarily”,inthelightoftheaboveanalysisofthelegalposition, theperiodduringwhich lockout was in force is to excluded for the purpose of time limits set out in rule 34(5) of the Appellate Tribunal Rules, 1963. Viewed thus, the exception, to 90-day time-limit for pronouncement of orders, inherent in rule 34(5)(c), with respect to the pronouncement of orders within ninety days, clearly comes into play in the present case. Of course, there is no, and there cannot be any, bar on the discretion of the benches to refix the matters for clarifications because of considerable time lag between the point of time when the hearing is concluded and the point of time when the order thereon is being finalized, but then, in our considered view, no such exercise was required to be carried out on the 21 3831, 4546 & 5594/Mum/2016 Shri Vinay Ramakant Sapte facts of this case.
To sum up, the appeal of the assessee is allowed, and appeal of the Assessing Officer is dismissed. Order pronounced under rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1962, by placing the details on the noticeboard.
Respectfully following the aforesaid judicial precedent, we proceed to pronounce this order beyond a period of 90 days from the date of conclusion of hearing.