TMI Blog2020 (12) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... such respective returns of income, therefore, the assessee cannot be treated as being in default as per the 'first proviso' to Sec. 201(1). Also, it has been stated by the Ld. A.R., that certificates from the accountant in the prescribed form i.e. 'Form No. 26A' verifying the aforesaid facts had been obtained by the assessee. On the basis of the aforesaid facts, we are of the considered view that the matter in all fairness requires to be restored to the file of the ITO(TDS) for verifying the veracity of the aforesaid claim of the assessee. In the course of the 'set aside' proceedings, the ITO(TDS) shall verify the maintainability of the claim of the assessee that now when the requisite conditions envisaged in the 'first proviso' to Sec. 201(1) of the Act had been complied on its part, it cannot be treated as being in default and consequentially be saddled with the liability U/ss. 201(1)/201(1A) of the Act. Before parting, we may herein clarify that the assessee shall in the course of the 'set aside' proceedings furnish the requisite details as would be called for by the ITO(TDS) for the purpose of giving effect to our aforesaid directions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the appeal. 2. Briefly stated, the assessee firm is engaged in the business of running a flour mill. Survey under Sec. 133A(1) of the Act was conducted on the assessee on 30.12.2014. As per the details gathered in the course of the survey proceedings, it emerged, that the assessee in the course of its business had paid commission while making purchases of wheat. Observing, that the assessee while making payment/credit of dhami/commission on the purchase of wheat was obligated to deduct tax at source under Sec. 194H of the Act, the ITO(TDS) called upon it to explain as to why it had failed to comply with the said statutory obligation. In reply, the assessee declined of having paid/credited any commission/dhami and claimed to had made outright purchase of wheat from the parties. As such, it was the claim of the assessee that it had purchased wheat on a principal to principal basis and no commission was paid to a third party. Insofar the mention of dhami on the face of the purchase invoice was concerned, it was submitted by the assessee that the same was inter se between its supplier and the farmer, and the same had no bearing on its purchase transactions. However, the ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t A.R.) for the assessee at the very outset of the hearing of the appeal submitted, that as the respective dealers to whom the impugned dhami/commission was paid/credited by the assessee had taken into account such sum while computing their income in the respective returns of income for the aforementioned years, and also have paid the tax due on the income declared by them in such returns of income, therefore, the assessee could not be treated as being in default u/s. 201(1) of the Act. It was the claim of the Ld. A.R. that the assessee had obtained the certificate from the accountant in the prescribed form i.e. 'Form 26A as contemplated in the 'first proviso' to sub-section (1) of Sec. 201 of the Act. In the backdrop of his aforesaid contentions, it was averred by the Ld. A.R. that taking cognizance of the fact that the respective payees had already paid the tax on the impugned amount of dhami/commission, therefore, the assessee could not be saddled with the liability U/ss. 201(1)/201(1A) of the Act. 5. Per contra, the Learned Departmental Representative (for short D.R.) relied on the orders of the lower authorities. 6. We have heard the authorized representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... now when the requisite conditions envisaged in the 'first proviso' to Sec. 201(1) of the Act had been complied on its part, it cannot be treated as being in default and consequentially be saddled with the liability U/ss. 201(1)/201(1A) of the Act. Before parting, we may herein clarify that the assessee shall in the course of the 'set aside' proceedings furnish the requisite details as would be called for by the ITO(TDS) for the purpose of giving effect to our aforesaid directions. 7. Before parting, we may herein deal with a procedural issue that though the hearing of the captioned appeal was concluded on 06/02/2020, however, this order is being pronounced much after the expiry of 90 days from the date of conclusion of hearing. We find that Rule 34(5) of the Income-tax Appellate Tribunal Rules, 1962 (sic 1963), which envisages the procedure for 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 pron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this light revert to the prevailing situation in the country. On 24th March, 2020, Hon'ble Prime Minister of India took the bold step of imposing a nationwide lockdown, for 21 days, to prevent the spread of Covid 19 epidemic, and this lockdown was extended from time to time. The epidemic situation 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 (Bom)], Hon'ble Bombay High Court did not approve an order being passed by the Tribunal beyond a period of 90 days, but then in the present situation Hon'ble Bombay High Court itself has, vide judgment dated 15th April 2020, held that directed while calculating the 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 . The extraordinary steps taken suo motu by the Hon'ble 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
