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TMI Blog2020 (7) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal, vide order dated 26th July 2019, recalled the appeal order passed for assessment year 2001-02 only for the limited purpose of deciding ground no.3. This is how the present appeal has come up before us. 4. Be that as it may, ground no.3, raised by the assessee reads as under:- "3. The learned Commissioner of Income Tax (Appeals) erred in directing the Assessing Officer to enhance assessed income by Rs. 10,73,406, being sale consideration of shares, without allowing any opportunity to the appellant as provided in section 251(2) of the Act. Provisions of the Act ought to have been properly construed and regard being had to facts of the Assessing Officer should not have been directed to enhance assessed income by Rs. 10,73,406. Reasons assigned by him are wrong and insufficient to justify enhancement of Rs. 10,73,406, to the total income of the appellant." 5. Brief facts are, for the assessment year under dispute, the assessee filed its return of income under section 139(1) of the Income Tax Act, 1961 (for short "the Act") within the prescribed time. Subsequently, a search and seizure operation under section 132(1) of the Act was conducted in assessee's case as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no addition can be made in an unabated assessment. In this regard, he specifically drew our attention to Para-6 of the earlier appeal order passed by the Tribunal (supra). Thirdly, learned Authorised Representative, drawing our attention to various documents placed in the paper book, submitted that the source of various investments in shares has been properly explained. Therefore, it cannot be treated as unexplained investment. 8. The learned Departmental Representative relied upon the observations of learned Commissioner (Appeals) and the Assessing Officer. 9. We have considered the rival submissions and perused the material on record. Undisputedly, the issue relating to assessee's investment in shares which were sold during the year was not the subject matter of the assessment order passed under section 153A r/w section 143(3) of the Act. This issue cropped up only in the course of proceedings before learned Commissioner (Appeals) wherein he directed the Assessing Officer to verify various evidences and submissions made by the assessee and submit his report. In the remand report, the Assessing Officer has suggested for the disputed addition. It is evident, on the basis of such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rve that the aforesaid contention of the assessee has found favour with the Tribunal in respect of some other additions made by the Assessing Officer which has been observed by the Tribunal in its finding in Para-6 of the appeal order dated 7th August 2018 (supra). Therefore, while deciding this issue, learned Commissioner (Appeals) must also take note of assessee's submissions and keep in view the observations of the Tribunal in the aforesaid order. As regards the merits of the issue, the same has to be adjudicated by learned Commissioner (Appeals), if required, after due opportunity of being heard to the assessee. With the aforesaid observations, this ground is allowed for statistical purposes. 10. In the result, appeal is allowed for statistical purposes. 11. Before we part, it is necessary for us to deal with a procedural issue relating to pronouncement of the order. The hearing of this appeal was concluded on 25.02.2020. As per rule 34(5) of the Income Tax (Appellate Tribunal) Rules,1963, ordinarily the appeal order has to be pronounced before expiry of ninety (90) days from the date of conclusion of hearing of appeal. However, on 24.03.2020 a nationwide lockdown was enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, 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 ..... 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