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Income Tax Appellate Tribunal, “F”
Before: SHRI C. N. PRASAD, JM & SHRI S. RIFAUR RAHMAN, AM
DCIT (OSD)-II, Central Shri Vinod K. Faria, बिधम/ Range-7, Room No. 413, Flat No. 3, Fairy Manor, Aayakar Bhavan, M. K. 13-Gunbow Street, Fort, Vs. Road, Mumbai 400 020 Mumbai-400 706 स्थायीलेखासं./जीआइआरसं./PAN No. AAAPF1045J (अपीलाथी/Appellant) (प्रत्यथी / Respondent) : अपीलाथीकीओरसे/ Appellant by : Shri Hira Segnal, AR प्रत्यथीकीओरसे/Respondentby : Shri Prabhat Gupta, DR सुनवाईकीतारीख/ : 04.03.2020 Date of Hearing घोषणाकीतारीख / : 23.07.2020 Date of Pronouncement आदेश / O R D E R PER S. RIFAUR RAHMAN (ACCOUNTANT MEMBER): The present two (2) Appeals have been filed by the assessee against the order of Commissioner of Income Tax (Appeals)-9, Mumbai, in short ‘Ld. CIT(A)’ dated 27.02.2013 for AY 2008-09 & 2009-10 respectively.
Since the issues raised in both the appeals are identical, therefore, for the sake of convenience, these appeals are clubbed, heard and disposed of by this consolidated order.
The brief facts of the case are, a search and seizure action under section 132(1) of the Act and survey action under section 133A of the Act were carried out in the business and residential premises of Vinod Faria/Milan Dalal group of cases on 30.05.2008. The assessee is the proprietor of M/s Mayur Ply ‘N’ Veneers and M/s Mahavir Glass and Aluminium, engaged in the business of trading in plywood, veneers, glass and aluminium. He is also director in M/s Genelec Ltd and M/s Royal Rich Developers P Ltd. There were several allegations against the assessee and there was no representation from assessee, the assessment was completed ex-parte under section 144 of the Income Tax Act 1961 (in short ‘Act’) the taxable income was determined at ₹ 1,39,91,400/–.
Aggrieved with the above order, assessee preferred an appeal before Ld CIT(A) – 40 Mumbai, filed on 31.1.2011. Ld CIT(A) observed that assessee has declared tax as per return was ₹ 59,960/–, which assessee was required to be paid by 31.01.2011 i.e. on the date of filing of appeal. It is observed by Ld CIT(A) that up to the date of filing of appeal, an amount of ₹ 11,000/– was paid and the balance amount was not paid. Therefore, the provisions of section 249(4) of the Act violated and accordingly the appeal could not be admitted. Ld CIT(A) issued a show cause notice in this regard and in response assessee filed vide letter dated 26.2.2013, in which assessee has confirmed that the admitted tax has not been paid.
By relying on the decision of coordinate bench of the tribunal in the case of Bharat Kumar Sakhsaria vs DCIT [82 ITD 512], Ld CIT(A) observed that as quoted by Hon’ble ITAT by relying on Hon’ble Supreme Court decisions, that provisions under section 249 (4) of the Act are mandatory (not directory). He also observed that where the appeals were filed in breach of mandatory provisions of section 249 (4) of the Act, the same cannot be treated as valid appeal. Considering the fact in this case that assessee has not paid the admitted tax as per return of income, assessee cannot file any appeal before appellate authorities, accordingly the appeal filed by the assessee was dismissed.
Aggrieved with the above order, assessee is in appeal before us.
7. At the time of hearing before us, Ld AR submitted by way of letter dated 7 August 2018 that assessee has paid the admitted tax along with interest of ₹ 63,173/- on 4th July 2015 by way of bank attachment by the Department in respect of rental income from the premises at Gokul Arcade, Garware Chowk, Vile Parle (E), Mumbai – 400051. Assessee also filed Form 26AS (a copy is filed along with letter). Ld AR submitted that the department has recovered the admitted tax and in substance, assessee has complied with the provisions of section 249 (4) of the Act and the defects was duly rectified and this appeal may be remitted back to Ld CIT(A) to adjudicate on merit.
8. After considering the submissions of Ld. DR, we observed that the revenue has recovered ₹ 63,173/– on 4th July 2015 and this amount is more than admitted tax payable by the assessee as per return of income. Since the defect is cured, we deem it fit to remit this issue back to the file of Ld CIT(A) with a direction to adjudicate the grounds of appeal raised by the assessee as per law. Accordingly, the grounds of appeals filed by the assessee are allowed for statistical purpose.
9. In the net result, both the appeals filed by the assessee are 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 & 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 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 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 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.
11. 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.
Order pronounced as per Rule 34(5) of ITAT Rules and by placing the pronouncement list in the notice board on 23.07.2020.