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TMI Blog2020 (7) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 86,56,527/-. 3. The learned Commissioner of Income Tax (Appeals) - 11, Ahmedabad erred in confirming disallowance of interest payment of Rs. 14,40,475 to 1C1CI bank made by the A.O. by treating it as personal expenditure. 4. The learned Commissioner of Income Tax (Appeals) - 11, Ahmedabad erred in confirming addition of Rs. 2,28,990/- made by the assessing officer by way of unexplained investment in jewellery. 5.The learned Commissioner of Income Tax (Appeals) - 11, Ahmedabad erred in confirming the action of the assessing officer in treating the remuneration income of 42,00,000/- from Om Kirti Constructions Pvt. Ltd. as income from other sources. 3. The assessee vide letter dated 20th February 2020 has also filed the additional grounds of appeal as reproduced under: a) On the facts and Circumstances of the case and on the basis of information obtained under RTI dated 13.12.2019, the order of assessment passed by the AO on 04.03.2013, for the impugned year, is void ab initio as the approval granted u/s 153D of the Act is mechanical approval. b) On the facts and circumstances of the case the Assessment Order passed under section 153A/143(3) of the I. T. Act, 1961 is b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch under section 132 or for requisition under section 132A was executed: 8. Admittedly, the year before us i.e. AY 2011-12 is the year in which search was conducted under section 132 of the Act. Accordingly, in our considered view the assessment framed under section 143(3) of the Act was subject to the compliance of the provisions specified under section 153D of the Act as elaborated above. 9. In the light of the above provision we proceed to analyze the contentions of the learned AR for the assessee. The learned AR before us filed a paper book running from pages A to E, 1 to 80 and submitted as under: 1. The present appeals are arising from the order of CIT (A) Ahmadabad dated 29.01.2015 in ITA Number 97 and 27.01.2015 in ITA number-96 and relates to AY 2011- 12. The assessee in order to assist the Hon'ble Bench has prepared this synopsis. 2. Assessee by virtue of his application dated 20.02.2020 has raised two additional grounds. 1) that the approval u/s 153D is not a prior approval as the same has been received by the Jurisdictional AO after the passing of assessment order.2) the approval received is a mechanical approval. 3. Certain dates which goes to the root o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease reported in 252 Taxman 407(Guj) c. CIT Vs shree lekha Damini- 307 CTR 218(Bom) d. CIT vs SPL Sidhartha - Delhi High Court:- 7. It is next submitted that in the case of M3M also the AO has received the approval after the passing of assessment order. Which approach is annulled by the ITAT. The relevant observation of the decision are as under:- the contention of Learned Counsel for the Assessee is justified that the approval was granted in a most mechanical manner without application of mind and such approval was intimated to assessing officer only on 5th February 2014, after passing of the assessment order on 31st January 2014. The above decisions are clearly applicable to the facts and circumstances of the case. In view of the above discussion, we are of the view that no valid approval/sanction have been granted by the Addl. CIT, Chandigarh before passing the assessment order in the matter. The requirements of Section 153D of I.T. Act, 1961, are not satisfied in this case. We accordingly hold that entire assessment order is vitiated and is null and void(Para- 8. Without prejudice to the above, it is next submitted that the approval granted by the Additional CIT is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was transmitted by the assessing officer at Faridabad to Addl. CIT in Chandigarh and vice-versa by Addl. CIT, Chandigarh to Assessing Officer at Faridabad on the very next day would lead to suspicion, in explanation of A.O. if any, valid draft order was transmitted to the Addl. CIT within the time or if the Addl. CIT has communicated the approval under section 153D to the Assessing Officer at Faridabad on 31st January 2014. These facts would clearly show that the action of the Addl. CIT, Chandigarh granting approval in this case was, thus, a mere mechanical exercise, accepting the draft order as it is, without any independent application of mind on his part b) It is submitted that in the present case the assessee vide his application dated 17.01.2010 has also asked the similar question as to whether the assessment records of all the assessees(13) were sent to the Office of Additional CIT Baroda. However no clear reply has been given by the revenue. Copy of RTI reply dated 14.02.2020 is at Page No- E of the Paper Book. Question number -4 of this reply is relevant in this regard. c) In the RTI application dated 17.01.2020, the assessee in question number 5 has also categorically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment orders u/s.153A of the Act. Accordingly, all assessment orders are vitiated and thus same are void being bad in law. The requirement of mandate of section 153D of the Act has not been satisfied in both the cases and accordingly we hold that the all assessment orders are vitiated and thus same are void being bad in law. We, accordingly set aside the impugned orders of lower authorities and quash the assessment orders by allowing additional ground of the assessees in all appeals filed by both the assessees having identical and similar facts and circumstances 11. In view of the above it is prayed that the appeals of the assessee may be allowed on the legal grounds alone 10. On the other hand the learned DR vehemently supported the order of the authorities below. 11. We have heard the rival contentions of both the parties and perused the materials available on record. The facts of the dispute have already been discussed in detail in the preceding paragraph. Therefore we are not inclined to repeat the same for the sake of brevity and convenience. Admittedly the approval was granted by the learned joint Commissioner of Income Tax dated 4th of March 2013 but the same was receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eason to adjudicate the other issue raised by the assessee challenging the validity of the assessment as well as on merits. Hence the ground of appeal of the assessee is allowed. 14. In the result the appeal of the assessee is partly allowed. 15. Coming to the ITA No. 96/RAJKOT/2015 for A.Y. 2011-12 16. At the outset we note that identical issue has been decided by us in favour of the assessee in ITA No. 97/RAJKOT/2015 vide paragraph no. 11 to 13 of this order. For the detail discussion please refer the relevant paragraph as discussed above. Therefore respectfully following the same and to maintain parity with the findings, we allow the additional ground raised by the assessee in its favour. 17. Before we part with the issue/appeal as discussed above, it is pertinent to note that the clause (c) of rule 34 of the Appellate Tribunal Rules 1963 requires the bench to make endeavour to pronounce the order within 60 days from the conclusion of the hearing. However the period of 60 days can be extended under exceptional circumstances but the same should not ordinarily be further extended beyond another 30 days. In simple words the total time available to the Bench is of 90 days upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 requi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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