TMI Blog2020 (6) TMI 105X X X X Extracts X X X X X X X X Extracts X X X X ..... it @ 1.5% by the Ld. AO and hence we find there is no merit in levying penalty under section 271(1)(c) - Decided in favour of assessee Order being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [ 2020 (5) TMI 359 - ITAT MUMBAI ] - ITA No. 142/RJT/2018 - - - Dated:- 2-6-2020 - Shri Waseem Ahmed, Accountant Member And Ms. Madhumita Roy, Judicial Member For the Appellant : Shri Chetan Agarwal, CA For the Respondent : Shri Suhas Mistry, Sr. D.R. ORDER PER BENCH: The instant appeal filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tten submission made before the authorities below by the appellant. It is on record that the addition was made on estimation of net profit @ 1.5% by the Ld. AO and hence we find there is no merit in levying penalty under section 271(1)(c) of the Act for the proposition already dealt with by us in the foregoing paragraph. Thus, in the absence of any merit in the order passed by the authorities below we quash the same. The addition is therefore, deleted. 5. In the result, the appeal filed by the assessee is allowed. 6. Before parting we would like to make certain observation relating to the issue cropped up under present scenario of Covid-19 pandemic as to whether when the hearing of the matter was concluded on 28.02.2020 the order can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r pronouncement of the order, and such date shall not ordinarily (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 notice board. 8. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 limitation has expired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect 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. 7. On the basis of the observation made in the aforesaid judgment we exclude the period of lockdown while computing the limitation provided under Rule 34(5) of the Income Tax (Appellate Tribunal) Rule 1963. Order is, thus, pronounced in the open court. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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