TMI Blog2020 (8) TMI 810X X X X Extracts X X X X X X X X Extracts X X X X ..... e after giving an opportunity of being heard to the assessee in accordance with law. Therefore, in the said circumstances, we are of the view that the order of the CIT(A) is not liable to be sustainable in the eyes of law, therefore, we set aside the finding of the CIT(A) on all the issues and restored the matter before the CIT(A) to decide the matter afresh by giving an opportunity of being heard to the assessee in accordance with law. - I.T.A. No. 755/Mum/2017 I.T.A. No. 3592/Mum/2015 - - - Dated:- 24-8-2020 - SHRI PRAMOD KUMAR, VP AND SHRI AMARJIT SINGH, JM Assessee by : Shri J. D. Mistry/ Niraj Sheth Revenue by : Shri Jothilakshmi Nayak (Sr. AR) ORDER Per Amarjit Singh, JM The assessee as well as revenue has filed the above mentioned appeals against the different order passed by the Commissioner of Income Tax (Appeals)-10, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the assessment years 2010-11 2012-13. ITA. NO.755/M/2017 3. The assessee has filed the present appeal against the order dated 28.10.2016 passed by the Commissioner of Income Tax (Appeals)-10, Mumbai [hereinafter referred to as the CIT(A) ] relevant to the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmits that considering the facts and circumstances of its case and the law prevailing on the subject, following the matching principle only 1/10th of the entrance fees received from the corporate members is taxable income for the year and the balance of the entrance fees have been offered to tax in the subsequent years and hence the addition made by the Assessing Officer of the fees received from the corporate members is misconceived , erroneous, incorrect and bad-in-law and the Commissioner of Income-tax (Appeals) ought to have held as such. 3 : 3 The Appellant submits that the Assessing Officer be directed to delete the addition so made and to re-compute its total income accordingly. Without Prejudice to the above: 3 : 4 The Appellant submits that in the event it is held that entire 80% of entrance fees received from the corporate members is taxable income for the year then consequential relief be granted in subsequent years when the same have been offered to tax by the Appellant. 4 : 0 Re.: Considering redemption/switch-out of units of mutual fund as business income 4 : 1 The Commissioner of Income-tax (Appeals) has erred in confirming the action of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Commissioner of Income-tax (Appeals) has erred in not deciding on the issue relating to not granting by the Assessing Officer a set off of brought forward unabsorbed depreciation against the business income assessed for the year. 7 : 2 The Appellant submits that considering the facts and circumstances of her case and the law prevailing on the subject it is entitled to a set off the brought forward unabsorbed depreciation against the business income assessed for the year and the Commissioner of Income-tax ought to have directed the Assessing Officer to set off the same. 7 : 3 The Appellant submits that the Assessing Officer be directed to set off of the brought forward unabsorbed depreciation and to re-compute the Appellant's total income accordingly. 8 : 0 Re.: Not quantifying the brought forward 'long term capital loss' and 'short term capital loss' to be carried forward to subsequent Assessment Years: 8 : 1 The Commissioner of Income-tax (Appeals) has erred in not deciding on the issue relating to not quantifying/notifying by the Assessing Officer they brought forward 'long term capital loss' and 'short term capital loss& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 Interest on Deposits Bank 3,767 9,46,049 The notice was given and after the reply of the assessee, the interest in sum of ₹ 8,50,344/- was added to the income of the assessee. After some disallowance of fees receipt from the members and u/s 14A of the Act 1961 and capital gain etc, the total income of the assessee was assessed to the tune of ₹ 7,35,61,530/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) 10, Mumbai who partly allowed the claim of the assessee but assessee was not satisfied, therefore, the assessee has filed the present appeal before us. 4. We have heard the argument advanced by the Ld. Representative of the Department and has gone through the case carefully. The assessee did not appear before us. We find that Ld. CIT(A) has dismissed the appeal for non-prosecution. We find that it is incumbent upon the Ld. CIT(A) to pass an order on the merits of the case and not to dismiss the appeal for non-prosecution. 5. For this proposition we placed reliance upon the following case laws. (1) CIT Vs. Premkumar Arju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, by taking into account the CBDT circular No. 3/2018 dated 11-7-2018 and Circular no.17/2019 dated 08/08/2019 and also considering the fact that tax effect involved in the present appeal is less than the amount of monetary limit fixed by the CBDT for not filing appeal, dismissed appeal filed by the revenue as not maintainable. We, further noted that the Co-ordinate bench of ITAT, Ahmedabad A Bench in ITA. No. 1398/Ahd/2004, vide order dated 14/08/2019 has passed detailed order considering new circular issued by the CBDT and held that except amendment to para 3 of the circular No.3/2018 dated 11/07/2018, all other portions of the circular No.03/2018 (supra) have remain in fact, therefore, this circular is applicable even for pending appeals and accordingly, rejected the arguments of the revenue that the effect of the circular shall come into force from the date of issue of this circular. Therefore, considering the facts and circumstances of this case and also taken note of circulars issued by the CBDT including circular No. 17/2019 dated 08/08/2019, and also by following the decision of Co-ordinate Bench, we dismissed appeal filed by the revenue as not maintainable. Howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing-off of Hon ble President and Hon ble Vice President, in its recent decision titled as DCIT V/s JSW Limited (ITA Nos. 6264 6103/Mum/2018) order dated 14/05/2020 held as under: - 7. However, before we part with the matter, we must deal with one procedural issue as well. While hearing of 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 practicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orcement 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that directed while calculating the time for disposal of matters made timebound 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 . The 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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