TMI Blog2020 (7) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... n estimated basis - HELD THAT:- There cannot be any penalty qua to the addition made on estimated basis. In holding so we draw support and guidance from the judgment of Hon ble Gujarat High Court in the case of ITO Vs. Bombay wala readymade stores [ 2014 (11) TMI 1099 - GUJARAT HIGH COURT]. We set aside the finding of the learned CIT-A and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed. 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 ] - I.T.A. No. 214/Rjt/2015, 254 And 255/Rjt/2014 - - - Dated:- 1-6-2020 - Shri Waseem Ahmed, Accountant Member And Smt. Madhumita Roy, Judicial Member For the Appellant : Shri Chetan Agarwal, A.R. For the Respondent : Shri Suhas Mistry, Sr. D.R. ORDER PER BENCH: All three captioned appeal have been f i led at the instance of the assessee against the orders of the Commissioner of Income Tax (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) without mentioning the specific charge in its penalty order dated 23/10/2013, whether, it was levied on account of concealment of income or furnishing inaccurate particulars of income. The relevant extract of the penalty order is reproduced as under: it is established that the assessee has concealed but gross of income/ furnished inaccurate particulars of income and this is, therefore, a fit case for levy of penalty u/s. 271(1)(c) of the Act On perusal of above, it is clear that the AO has not levied the penalty on the specific charge as mandated u/s 271(1)(c) of the Act. In such facts and circumstance the Hon'ble Jurisdictional High Court in the case of Snita Transport Pvt. Ltd. Vs. Assistant Commissioner of Income Tax reported in 42 taxmann.com 54 has held that penalty cannot be imposed without mentioning the specific charge. The relevant extract of the order is reproduced below: 9. Regarding the contention that the Assessing Officer was ambivalent regarding under which head the penalty was being imposed namely for concealing the particulars of income or furnishing inaccurate particulars, we may record that though in the assessment order the Assessing Offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal of assessee raised on merits. 10. In the result the appeal filed by the assessee is partly allowed. 11. Coming to the ITA No. 254/AHD/2014 for the AY 1999-00 where the assessee has raised the following grounds of appeal: 1. That, the learned CIT(A) has wrong confirmed the penalty u/s. 271(1)(c) of the I.T. Act of ₹ 17,07,205/-. 12. At the outset we note that we have decided the identical issue in the own case of the assessee in ITA No. 214/RJT/2015 in its favour vide paragraph number 9 of this order. For the detailed discussion, please refer the relevant paragraph. Respectfully following the same, we set aside the finding of the learned CIT (A) and direct the AO to delete the penalty imposed by him. Hence the ground of appeal of the assessee is partly allowed. 13. In the combined result, both the appeals of the assessee are partly allowed. 14. Coming to the ITA No. 255/AHD/2014 for the AY 2005-06 where the assessee has raised the following grounds of appeal: 1. That, the learned CIT(A) has wrong confirmed the penalty u/s. 271(1)(c) of the I.T. Act of ₹ 40,90,779/-. 15. The only issue raised by the assessee is that the learned CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, just because estimates are made, penalty cannot be levied under Section 271(c). Respectfully following the principles laid down by the Hon ble Gujarat High Court in the case above, we set aside the finding of the learned CIT-A and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed. 22. 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 the conclusion of the hearing. However, during the prevailing circumstances where the entire world is facing the unprecedented challenge of Covid 2019 outbreak, resulting the lockdown in the country, the orders though substantially prepared but could not be pronounced for the unavoidable reasons within the maximum period of 90 days. In such circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
