TMI Blog2020 (9) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... on legal ground. Since we have already quashed the reassessment order passed by the AO on legal ground, other grounds on merits need no adjudication. Thus, the appeal of the assessee is allowed on legal ground. - ITA No.238/ASR/2019 - - - Dated:- 30-6-2020 - Shri L.P. Sahu, AM And Shri Ravish Sood, JM For the Assessee : Shri S.K.Mukhi, Advocate For the Revenue : Shri M.P.Singh, CIT-DR ORDER PER L.P.SAHU, AM : This is an appeal filed by the assessee against the order of CIT(A)-4, Ludhiana, dated 08.02.2019, on the following grounds of appeal :- 1. That the orders of Ld. CIT(A) is illegal, erroneous and perverse and thus needs to be quashed. 2. That the issuance of notice u/s 147/148 is bad in law as no new material was there with the AO to initiate action u/s 147 and the proceedings in furtherance of illegal notice are void ab-initio and deserve to be set aside. 3. That the addition made by AO and partially confirmed by CIT (A) is devoid of proper appreciation of facts on record and against express provisions of law and deserve to be set aside. 4. That the appellant craves leave to add, amend or delete any of the grounds of appeal o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .148 of Income Tax Act. However, the assessee vide its letter dated 19.07.2017 furnished as under : i. As stated in the letter it is hereby clarified that no income has escaped tax. The detailed capital A/c is enclosed. In this year the society has received 99 year lease amount from the shops situated in the complex and is a capital receipt and accordingly capitalized. ii. Shopping complex/library receipt is a lease for 99 years since the year 1999-2000 and is a one time capital receipt. In no way it is a revenue receipt to be taken in Income Expenditure account. This is balance of amount for that shops which are pending for execution of lease deeds. The entire lease deeds were executed in F.Y.2012-13 and nil balance of same is there in that year. The copy of balance sheet as on 31.03.2013 enclosed alongwith Notes to accounts stating the position. Subsequently, the assessee also filed reply on 03.08.2017, which was considered by the AO and the AO noticed that in the reassessment proceedings, the assessee could not file details as required by the AO. Accordingly, the reassessment was completed u/s.144/147 of the Act and determined total income of the assessee at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter hearing both the sides and perusing the entire material available on record and the orders of authorities below, we noticed from the documents submitted by the assessee that this issue was already been questioned by the AO at the time of making original assessment u/s.143(3) of the Act in the question No.12 dated 06.02.2012. In response to this, the assessee submitted his reply on 23.02.2012 at Serial No.12. The financial statement was also submitted before the AO and the notes of account were also appended with the financial statements. Further it is also clear from the documents available before us that this case has been reopened by the AO on the basis of audit objection in regard to capital funds. The assessee had also duly replied of the audit objections as per his letter which is placed on record. Details of capital funds were also submitted before the AO, which means this issue was already been examined by the AO at the time of framing original assessment. Thereafter the AO passed order u/s.143(3) of the Act and accepted nil return of the assessee. The case laws relied on by the ld. AR in the case of M/s Kelvinator of India Limited (supra) also supports the case of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to as the relevant assessment year). After the Amending Act, 1989, Section 147 reads as under: Income escaping assessment. 147. If the Assessing Officer has reason to believe that any income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the loss or the depreciation allowance or any other allowance, as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year). On going through the changes, quoted above, made to Section 147 of the Act, we find that, prior to Direct Tax Laws (Amendment) Act, 1987, reopening could be done under above two conditions and fulfillment of the said conditions alone conferred jurisdiction on the Assessing Officer to make a back assessment, but in section 147 of the Act [with effect from 1st April, 1989], they are given a go-by and only one condition has remaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled and its omission from section 147 would give arbitrary powers to the Assessing Officer to reopen past assessments on mere change of opinion. To allay these fears, the Amending Act, 1989, has again amended section 147 to reintroduce the expression `has reason to believe' in place of the words `for reasons to be recorded by him in writing, is of the opinion'. Other provisions of the new section 147, however, remain the same. For the afore-stated reasons, we see no merit in these civil appeals filed by the Department, hence, dismissed with no order as to costs. 8. Further, the Hon ble Punjab and Haryana High Court in the case of Baldev Singh(supra), has held as under :- 6. As we noted earlier the details in respect of transactions were called for by the Assessing Officer and the assessee furnished the same. On the basis thereof the Assessing Officer accepted the return in this respect. The Tribunal on this basis and after following the judgments of Delhi High Court in Madhukar Khosla v. Assistant Commissioner of Income Tax (2014) 90CCH 0023 Delhi High Court and Orient Crafts Ltd. 354 ITR 536 (Delhi) rightly allowed the appeal on the ground that the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rules so framed, as a result of these directions, the expression ordinarily has been inserted in the requirement to pronounce the order within a period of 90days. The question then arises whether the passing of this order, beyond ninety days, was necessitated by any extraordinary circumstances. 11. We also find that the aforesaid issue has been answered by a coordinate Bench of the Tribunal viz; ITAT, Mumbai F Bench in DCIT, Central Circle-3(2), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pragmatic tool of the social order. The tenets of law being enacted on the basis of pragmatism, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
