TMI Blog2020 (7) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... 0) 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.3739/Mum./2011 - - - Dated:- 13-7-2020 - Shri Saktijit Dey, Judicial Memberand Shri Manoj Kumar Aggarwal, Accountant Member For the Assessee : Shri Dharan Gandhi For the Revenue : Shri Sunil K. Shah ORDER PER SAKTIJIT DEY. J.M. The captioned appeal has been filed by the assessee challenging the order dated 17thJanuary 2011, passed by the learned Commissioner of Income Tax (Appeals) 38, Mumbai, pertaining to the assessment year 2001 02. 2. Before we proceed to deal with the issue arising for consideration before us, it is necessary to briefly discuss certain facts. 3. This appeal along with other connected appeals of the assessee came up for hearing before the Tribunal on 7th August 2018. By a consolidated order of even date, the Tribunal disposed off all the appeals including the present appeal. Subsequently, the assessee filed a miscellaneous application no.33 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication, the Assessing Officer found that during the year, the assessee had sold shares and received an amount of ₹ 10,73,406. Alleging that the assessee was unable to prove the source of investment in shares, the Assessing Officer recommended for addition of the said amount in the remand report. On the basis of such recommendation of the Assessing Officer in the remand report, learned Commissioner (Appeals) enhanced the income of the assessee by adding an amount of ₹ 10,73,406. 7. Before us, learned Authorised Representative has challenged the addition made by learned Commissioner (Appeals) leading to enhancement of income basically on three propositions. Firstly, his submission is, before enhancing the income, learned Commissioner (Appeals) has not issued any show cause notice to the assessee as mandated under section 251(2) of the Act. Secondly, he submitted that this is a case of unabated assessment. Therefore, in the absence of any incriminating material found as a result of search, no addition can be made. To impress upon the fact that there was no incriminating material found during the search to show existence of undisclosed income, the learned Authorised Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice to the assessee as mandated under section 251(2) of the Act. The learned Departmental Representative was also unable to establish before us that learned Commissioner (Appeals) has complied with the conditions of section 251(2) of the Act. That being the case, enhancement of income without following the mandatory/statutory requirement cannot survive. Therefore, the decision of learned Commissioner (Appeals) in respect of enhancement of income of ₹ 10,73,406, is legally unsustainable. In view of the aforesaid, we set aside the order of learned Commissioner (Appeals) on the issue and restore the matter back to his file for deciding afresh after complying with the provisions of section 251(2) of the Act. As regards second contention of the assessee that in the absence of any incriminating material, the disputed addition could not have been made, we must observe that since we have restored the issue back to the file of learned Commissioner (Appeals) for not complying with the provisions of section 251(2) of the Act, it is not desirable for us to express any conclusive opinion on the aforesaid contention of the assessee. However, it is trite law, in absence of any i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 the hearing. (b) In case where the order is not pronounced immediately on the conclusion of the hearing, the Bench shall give a date for pronouncement. (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 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 sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extraordinary steps taken suo motu 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 , in the light of the above analysis of the legal position, the period during which 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.‟‟ 12. Following the aforesaid decision of the Coordinate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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