Shree Deshi Lohana Vidhyarthi Bhavan, Ahmedabad V. The ITO, (Exemptions), Ward-2, Ahmedabad

CO 64/AHD/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9952 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 11 month(s) 12 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 29-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-03-2020
• Assessment Year: 2013-2014
• Appeal Filed On: 17-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P M MEHTA
• Keywords: Charitable institution; Set aside
• Section: 12AA; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER& MS. MADHUMITA ROY, JUDICIAL MEMBER C.O. NO. 64/AHD/2017 (ARISING OUT OF ITA NO. 748/AHD/2017) (ASSESSMENT YEAR: 2013-14) SHREE DESHI LOHANA VIDHYARTHI BHAVAN KANKARI RAILWAY YARD, VIJAY TOWER COMPLEX, OPP. ABAD DAIRY, KANKARIA, AHMEDABAD-380015 VS. ITO(E) WARD-2 2 ND FLOOR, NATURE VIEW BUILDING, NR. H.K. HOUSE, ASHRAM ROAD, AHMEDABAD- 380015 [ PAN NO. AAA AS5 836 R ] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI P. M. MEHTA, AR RESPONDENT BY : SHRI DILEEP KUMAR, SR. DR DATE OF HEARING 04.03.2020 DATE OF PRONOUNCEMENT 29 . 0 6 . 20 20 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT CROSS OBJECTION FILED BY THE ASSESSEE I S DIRECTED AGAINST THE ORDER DATED 05.01.2017 PASSED BY THE COMMISSION ER OF INCOME TAX (APPEALS) 9, AHMEDABAD ARISING OUT OF THE ORDER D ATED 07.01.2016 PASSED BY THE ITO(E), WARD-2, AHMEDABAD UNDER SECTION 143( 3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO THE ACT ) FOR ASSESSMENT YEAR 2013-14. CO NO.64/AHD/2017 SHREE DESHI LOHANA VIDHYARTHI BHAVAN VS. ITO(E) ASST.YEAR 2013-14 - 2 - 2. THE ASSESSEE HAS CHALLENGED THE FINDING OF THE L D. CIT(A) IN UPHOLDING THE FINDING OF THE LD. AO IN APPLYING THE LAST LIMP OF THE PROVISION TO SEC. 2(15) OF THE ASSESSEE TRUST CONSI DERING THE ACTIVITIES OF THE ASSESSEE TRUST AS ACTIVATED FALLING UNDER THE ADVAN CEMENT OF GENERAL PUBLIC UTILITY IN THE NATURE OF TRADE, COMMERCE OR BUSINES S WHEN THE MAIN ACTIVITY OF THE ASSESSEE TRUST IS PROVIDING HOSTEL FACILITY TO THE NEEDY STUDENT WHICH FALLS UNDER THE EDUCATIONAL ACTIVITIES AND AS SUCH PROVISO TO SEC. 2(15) OF THE ACT IS NOT APPLICABLE TO THE ASSESSEES CASE. THE SHORT POINT INVOLVED IN THE CASE IS THIS AS TO WHETHER THE HOSTEL FACILITIES PROVIDING TO THE NEEDY STUDENTS FALLS UN DER THE EDUCATIONAL ACTIVITIES AND, THEREFORE, WHERE THE LAST LIMB THE PROVISO TO SEC. 2(15) IS APPLICABLE TO THE ASSESSEE TRUST. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. 4. IT APPEARS THAT THE CO-ORDINATE BENCH IN ITA NO. 993/AHD/2017FOR THE A.Y. 2013-14 HAS ALSO DEALT WITH THE IDENTICAL ISSUE AND ULTIMATELY DECIDED THE SAME IN FAVOUR OF THE ASSESSEE WHICH HA S BEEN BROUGHT TO OUR NOTICE BY THE LD. AR. A COPY OF THE SAME ANNEXED T O THE PAPER BOOK FILED BEFORE US IS APPEARING AT PAGES 175 TO 181. 5. THE LD. DR HOWEVER RELIES UPON THE ORDER PASSED BY THE AUTHORITIES BELOW. WE HAVE CAREFULLY CONSIDERED THE ORDER PASSED BY T HE CO-ORDINATE BENCH AS MENTIONED HEREINABOVE. THE RELEVANT PORTI ON IS AS FOLLOWS:- CO NO.64/AHD/2017 SHREE DESHI LOHANA VIDHYARTHI BHAVAN VS. ITO(E) ASST.YEAR 2013-14 - 3 - 6. SHORT QUESTION REQUIRED TO BE ADJUDICATED BY THE TRIBUNAL IS, WHETHER PROVIDING HOSTEL FACILITY TO THE STUDENTS BY APPELL ANT-TRUST IS TO BE CONSIDERED AS IMPARTING EDUCATION WITHIN THE MEANING OF SECTION 2 (15) OF THE ACT OR IT WOULD FALL WITHIN THE CLAUSE ADVANCEMENT OF ANY OTHER OB JECT OF GENERAL PUBLIC UTILITY PROVIDED IN THE PROVISO APPENDED TO SECTION 2(15) O F THE ACT. THE AO WAS OF THE OPINION THAT PROVIDING HOSTEL FACILITY IS NOT AN AC TIVITY AKIN TO EDUCATION. HENCE, THE ACTIVITY PERFORMED BY THE ASSESSEE WOULD NOT FA LL WITHIN THE MEANING OF CLAUSE 2(15) GIVING MEANING OF EXPRESSION CHARITABLE PURP OSE. HE CONSTRUED ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC UTILITY FALLING WITHIN THE AMBIT OF PROVISO APPENDED TO SECTION 2(15). FOR HA RBOURING THIS PLEA, BASICALLY THE LD.AO HAS NOT ASSIGNED ANY REASON, RATHER SIMPL Y OBSERVED THAT HOSTEL FACILITY CANNOT BE CONSTRUED AS IMPARTING EDUCATION. BEFORE CONSIDERING REASONS ASSIGNED BY THE REVENUE AUTHORITIES BELOW, WE DEEM IT APPROPRIATE TO UNDERSTAND THE MEANING AND OBJECTS OF THIS FACILITY. IT IS PER TINENT TO NOTE THAT HUMAN PERSONALITY IS SHAPED BY THE EXPERIENCES OF LIFE. W HEN A CHILD IS BORN, FAMILY PROVIDES A PROTECTIVE ENVIRONMENT FOR THE CHILD. A T THE BEGINNING, INTERACTIONS ARE LIMITED LATTER SOCIAL INTERACTIONS INCREASE, AN D THE PROCESS OF SOCIALIZATION STARTS. EDUCATION IS A PART OF CHILD DEVELOPMENT. THOUGH IT STARTED WITH THE BIRTH AND LASTED TILL THE TIME OF DEATH, BUT FORMAL EDUCA TION OF LANGUAGE AND OTHERS ARE BEING IMPARTED IN THE SCHOOL AND COLLEGES. HOSTEL IS AN ESSENTIAL INSTITUTION FOR THE STUDENTS TO STAY IN BIG CITIES AND HOSTEL PLAYS AN IMPORTANT ROLE IN EDUCATION AND TRAINING OF THESE STUDENTS. THEY PROVIDE RESID ENTIAL OPPORTUNITIES FOR THE STUDENTS TO CONTINUE THE PROCESS OF EDUCATION. IT I S A PLACE WHERE STUDENTS STAY FOR PURSUING FORMAL EDUCATION AWAY FROM THEIR HOMES. TH E CONCEPT OF HOSTEL IS NOT ONLY LIMITED TO PLACE OF RESIDENCE, RATHER IT IS A HUMAN PRACTICAL LABORATORY FOR DEVELOPMENT OF STUDENTS. IT IS A CENTER OF EDUCATIO N. STUDENTS LEARN AS MUCH AS FROM THEIR TEACHERS AS WELL AS FELLOWS DURING HOSTE L STAY. IT ENRICHES UNDERSTANDING OF THE CURRICULUM THROUGH ANALYTICAL DISCUSSION AMONGST THE STUDENTS LIVING IN THE HOSTELS, AND MAY CONTRIBUTE TO CHARACTER BUILDING AS WELL. STUDENTS IN HOSTEL NOT ONLY LEARN THE THEORETICAL M ATERIAL, THEY ALSO LEARN HOW TO ENHANCE THEIR PERSONAL ABILITIES AND LEARN TO LIVE INDEPENDENTLY. HOSTEL LIFE HAS AN IMPACT UPON THE BEHAVIORAL AS WELL AS PERSONALIT Y DEVELOPMENT OF STUDENTS. IT IS ONE OF THE ESSENTIAL COMPONENTS OF AN EDUCATIONA L INSTITUTION. SOME OF THE INSTITUTIONS LIKE IITS, MEDICAL COLLEGES PROVIDE CO MPULSORY STAY IN THE HOSTEL. THUS, HOW THE AO CAN SEGREGATE THIS COMPONENT FROM THE CONCEPT OF EDUCATION PROVIDED IN THE MAIN PROVISION OF SECTION 2(15) ? IF IT IS ACCEPTED THAT HOSTEL IS JUST AN ESSENTIAL PART OF EDUCATIONAL INSTITUTION, THEN ALL THAT DISCUSSIONS MADE BY THE AO WOULD BE IRRELEVANT. THE SIMPLE REASON IS THAT ASSESSEE-TRUST CAME INTO EXISTENCE IN THE YEAR 1947. IT HAS BEEN PROVIDING HOSTEL FACILITIES FOR MORE THAN 60 YEARS. IT HAS ALWAYS BEEN TREATED AS A CHARITAB LE INSTITUTION. IN THE ASSESSMENT YEAR 2010-11 A SCRUTINY ASSESSMENT WAS M ADE. ITS STATUS OF CHARITABLE INSTITUTION WAS ACCEPTED EVEN AFTER IN TRODUCTION OF SECTION 2(15) IN THE STATUTE BOOK. NOT ONLY IT HAS BEEN TREATED AS CHARITABLE INSTITUTION BY GIVING REGISTRATION UNDER SECTION 12AA OF THE ACT, BUT UNDER SECTION 80G(5) IT HAS AGAIN BEEN RECOGNIZED AS CHARITABLE INSTITUTION. CO NO.64/AHD/2017 SHREE DESHI LOHANA VIDHYARTHI BHAVAN VS. ITO(E) ASST.YEAR 2013-14 - 4 - 7. LET US TAKE NOTE OF REASONS ASSIGNED BY THE AO. WHEN THE ASSESSEE HAS POINTED OUT THAT IT HAS BEEN GRANTED REGISTRATION U NDER SECTION 12AA AND 80G(5) OF THE ACT, THEN THE AO HAS OBSERVED THAT SUCH REGI STRATION WAS GRANTED AFTER LOOKING INTO THE OBJECTS OF THE TRUST. THE AO OBSE RVED THAT THE ASSESSEE FAILED TO SUBMIT ANY EVIDENCE SHOWING THAT IT IS ACTUALLY IMP ARTING EDUCATION BY CONDUCTING CLASSES. THE LD.AO FAILED TO NOTE THAT THE STAND OF THE ASSESSEE WAS ALWAYS TO THE EFFECT THAT, TO RUN HOSTEL PARTICULAR LY FOR THE STUDENTS IS AN ACTIVITY ACCORDING TO THE OBJECT OF THE TRUST, AND IT IS AN AID FOR ATTAINING EDUCATIONAL OBJECTS. THE AO THEREAFTER MADE AN ANALYSIS OF ALL EGED PROFIT EARNED BY THE ASSESSEE. HE LOOKED INTO GROSS RECEIPTS MINUS EXPE NDITURE, AND SURPLUS GENERATED DURING THE YEAR. IT IS PERTINENT TO NOTE THAT SURPLUS IN THE ASSESSMENT YEAR 2013-14 IS RS.13.82 CRORES. OTHERWISE, IN AL L OTHER YEARS, IT IS IN BETWEEN RS.2 TO 4 LAKHS. THE ASSESSEE HAS TO MAINTAIN BUIL DING. IT HAS TO INCUR EXPENDITURE IN CAPITAL FIELD. IF A SMALL PERCENTAG E OF SURPLUS IS BEING GENERATED THEN HOW ALL OF A SUDDEN THE CHARITABLE ACTIVITY WOULD BECOME TRADE, COMMERCE OR BUSINESS ? IF THE MAIN ACTIVITY OF TH E ASSESSEE I.E. PROVIDING HOSTEL FACILITIES TO THE STUDENTS FALL WITHIN THE AMBIT OF EXPRESSION EDUCATION EMPLOYED IN THE MAIN PROVISION OF SECTION 2(15) THEN GENERAT ION OF SURPLUS WOULD BE IMMATERIAL BECAUSE ULTIMATELY IS TO BE ASCERTAINED WHETHER SURPLUS IS BEING USED FOR THE PURPOSE OF FULFILLING ALL THE OBJECTS OF TH E TRUST OR NOT. IF THE SURPLUS IS BEING APPLIED ON THE OBJECTS OF THE TRUST OR BEING ACCUMULATED AS PROVIDED IN THE SCHEME, THEN NOTHING IS TO BE TAXABLE. ON DUE ANAL YSIS OF RECORD, WE ARE OF THE VIEW THAT THE AO HAS UNNECESSARILY CREATED AN ARTIF ICIAL DISTINCTION. THE ASSESSEE IS NOT ADMITTING OTHER PERSONS IN THE BUILDING. IT IS PROVIDING FACILITY ONLY TO THE STUDENTS, AND THERE ARE LOTS OF RULES AND REGULATIO NS, BYE-LAWS FOR ADMITTING STUDENTS, ACCORDING TO THEIR MERITS IN EDUCATION. THUS, TAKING INTO ACCOUNT OVERALL FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE IS ENTITLED FOR BENEFIT OF SECTIONS 11 AND 12 OF THE INCOME TAX ACT. IF THE ASSESSEE IS ENTITLED FOR BENEFIT OF SECTIONS 11 AND 12, THEN THE AMOUNT SPENT FROM THE CORPUS FUND FOR CONSTRUCTION OF BUILDING IS ALSO TO BE LOOKED INTO WITH THAT ANGLE. WE SET ASIDE BOTH THE ORDERS OF THE REVENUE AUTHORITIES AND REST ORE THIS ISSUE TO THE FILE OF THE AO. THE LD.AO SHALL RE-DETERMINE TAXABLE INCOME OF THE ASSESSEE AND AFTER PROVIDING BENEFIT UNDER SECTIONS 11 AND 12. TAKING INTO CONSIDERATION THE RATIO LAID DOWN BY T HE CO-ORDINATE BENCH WE HAVE NO HESITATION TO FIND THE ASSESSEE AC TIVITIES TOWARDS PROVIDING HOSTEL FACILITIES TO THE STUDENT IS PUREL Y AN EDUCATIONAL ACTIVITIES AND, THEREFORE, NOT COMING UNDER THE PROVISO TO SEC . 2(15) OF THE ACT. HENCE, THE LD. AO IS DIRECTED TO GIVE RELIEF TO THE ASSESSEE ON THIS ISSUE. CO NO.64/AHD/2017 SHREE DESHI LOHANA VIDHYARTHI BHAVAN VS. ITO(E) ASST.YEAR 2013-14 - 5 - WITH THE OBSERVATION MADE HEREINABOVE, THE ASSESSE ES APPEAL IS ALLOWED. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. 7. BEFORE PARTING WE WOULD LIKE TO MAKE CERTAIN OBS ERVATION RELATING TO THE ISSUE CROPPED UP UNDER PRESENT SCENARIO OF COVI D-19 PANDEMIC AS TO WHETHER WHEN THE HEARING OF THE MATTER WAS CONCLUDE D ON 04.03.2020 THE ORDER CAN BE PRONOUNCED TODAY I.E. ON 30.06.2020. THE ISSUE HAS ALREADY BEEN DISCUSSED BY THE CO-ORDINATE BENCH IN THE CASE OF DCIT VS. JSW LTD. (ITA NOS. 6264 & 6103/MUM/2018) PRONOUNCED ON 14.05 .2020 IN THE LIGHT OF WHICH IT IS WELL WITHIN THE TIME LIMIT PERMITTED UNDER RULE 34(5) OF THE APPELLATE TRIBUNAL RULES, 1963 IN VIEW OF THE FOLLO WING OBSERVATIONS MADE THEREIN: 7. HOWEVER, BEFORE WE PART WITH THE MATTER, WE MUS T DEAL WITH ONE PROCEDURAL ISSUE AS WELL. WHILE HEARING OF THESE A PPEALS WAS CONCLUDED ON 8TH JANUARY 2020, THIS ORDER THEREON IS BEING PRONO UNCED TODAY ON THE DAY OF 14TH MAY, 2020, MUCH AFTER THE EXPIRY OF 90 DAYS FROM THE DATE OF CONCLUSION OF HEARING. WE ARE ALSO ALIVE TO THE FAC T THAT RULE 34(5) OF THE INCOME TAX APPELLATE TRIBUNAL RULES 1963, WHICH DEA LS WITH PRONOUNCEMENT OF ORDERS, PROVIDES AS FOLLOWS: (5) THE PRONOUNCEMENT MAY BE IN ANY OF THE FOLLOWIN G MANNERS : (A) THE BENCH MAY PRONOUNCE THE ORDER IM MEDIATELY UPON THE CONCLUSION OF THE HEARING. (B) IN CASE WHERE THE ORDER IS NOT PRONO UNCED IMMEDIATELY ON THE CONCLUSION OF THE HEARING, THE BENCH SHALL GIVE A D ATE FOR PRONOUNCEMENT. CO NO.64/AHD/2017 SHREE DESHI LOHANA VIDHYARTHI BHAVAN VS. ITO(E) ASST.YEAR 2013-14 - 6 - (C) IN A CASE WHERE NO DATE OF PRONOUNCE MENT IS GIVEN BY THE BENCH, EVERY ENDEAVOUR SHALL BE MADE BY THE BENCH TO PRONOUNCE T HE 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 A ND EXTRAORDINARY CIRCUMSTANCES OF THE CASE, THE BENCH SHALL FIX A FU TURE DAY FOR PRONOUNCEMENT OF THE ORDER, AND SUCH DATE SHALL NOT ORDINARILY (EMPH ASIS SUPPLIED BY US NOW) BE A DAY BEYOND A FURTHER PERIOD OF 30 DAYS AND DUE NOTI CE OF THE DAY SO FIXED SHALL BE GIVEN ON THE NOTICE BOARD. 8. QUITE CLEARLY, ORDINARILY THE ORDER ON AN APPE AL SHOULD BE PRONOUNCED BY THE BENCH WITHIN NO MORE THAN 90 DAYS FROM THE DATE OF CONCLUDING THE HEARING. IT IS, HOWEVER, IMPORTANT T O NOTE THAT THE EXPRESSION ORDINARILY HAS BEEN USED IN THE SAID RULE ITSELF. THIS RULE WAS INSERTED AS A RESULT OF DIRECTIONS OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHIVSAGAR VEG RESTAURANT VS ACIT [(2009) 317 ITR 4 33 (BOM)] WHEREIN THEIR LORDSHIPS HAD, INTER ALIA, DIRECTED THAT WE, THEREFORE, DIRECT THE PRESIDENT OF THE APPELLATE TRIBUNAL TO FRAME AND LA Y DOWN THE GUIDELINES IN THE SIMILAR LINES AS ARE LAID DOWN BY THE APEX COUR T IN THE CASE OF ANIL RAI (SUPRA) AND TO ISSUE APPROPRIATE ADMINISTRATIVE DIR ECTIONS 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 A LL 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 P ERIOD OF THREE MONTHS FROM THE DATE CASE IS CLOSED FOR JUDGMENT. IN TH E RULED SO FRAMED, AS A RESULT OF THESE DIRECTIONS, THE EXPRESSION ORDINAR ILY HAS BEEN INSERTED IN THE REQUIREMENT TO PRONOUNCE THE ORDER WITHIN A PER IOD OF 90 DAYS. THE QUESTION THEN ARISES WHETHER THE PASSING OF THIS OR DER, BEYOND NINETY DAYS, WAS NECESSITATED BY ANY EXTRAORDINARY CIRCUMSTANC ES. CO NO.64/AHD/2017 SHREE DESHI LOHANA VIDHYARTHI BHAVAN VS. ITO(E) ASST.YEAR 2013-14 - 7 - 9. LET US IN THIS LIGHT REVERT TO THE PREVAILING SI TUATION IN THE COUNTRY. ON 24TH MARCH, 2020, HONBLE PRIME MINISTER OF INDI A TOOK THE BOLD STEP OF IMPOSING A NATIONWIDE LOCKDOWN, FOR 21 DAYS, TO PRE VENT SPREAD OF COVID 19 EPIDEMIC, AND THIS LOCKDOWN WAS EXTENDED FROM TI ME TO TIME. AS A MATTER OF FACT, EVEN BEFORE THIS FORMAL NATIONWIDE LOCKDOWN, THE FUNCTIONING OF THE INCOME TAX APPELLATE TRIBUNAL AT MUMBAI WAS SEVERELY RESTRICTED ON ACCOUNT OF LOCKDOWN BY THE MAHARASHTR A GOVERNMENT, AND ON ACCOUNT OF STRICT ENFORCEMENT OF HEALTH ADVISORIES WITH A VIEW OF CHECKING SPREAD OF COVID 19. THE EPIDEMIC SITUATION IN MUMBA I BEING GRAVE, THERE WAS NOT MUCH OF A RELAXATION IN SUBSEQUENT LOCKDOWN S 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 HONBLE SUPREME COURT OF INDIA, IN AN UNPRECEDENTED ORDER IN THE HI STORY OF INDIA AND VIDE ORDER DATED 6.5.2020 READ WITH ORDER DATED 23.3.202 0, 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 PE RIOD FROM 15.03.2020 TILL THE DATE ON WHICH THE LOCKDOWN IS LIFTED IN THE JUR ISDICTIONAL AREA WHERE THE DISPUTE LIES OR WHERE THE CAUSE OF ACTION ARISES SH ALL BE EXTENDED FOR A PERIOD OF 15DAYS AFTER THE LIFTING OF LOCKDOWN. HO NBLE BOMBAY HIGH COURT, IN AN ORDER DATED 15TH APRIL 2020, HAS, BESI DES 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 CO NTINUES TO OPERATE SHALL CO NO.64/AHD/2017 SHREE DESHI LOHANA VIDHYARTHI BHAVAN VS. ITO(E) ASST.YEAR 2013-14 - 8 - 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 CONTINUE FURTHER TILL 15TH JUNE 2020. IT HAS BEEN AN UNPRECEDENTED SITUATION NOT ONLY IN INDIA BUT ALL O VER THE WORLD. GOVERNMENT OF INDIA HAS, VIDE NOTIFICATION DATED 19 TH FEBRUARY 2020, TAKEN THE STAND THAT, THE CORONA VIRUS SHOULD BE CONSIDE RED A CASE OF NATURAL CALAMITY AND FMC (I.E. FORCE MAJEURE CLAUSE) MAY BE INVOKED, WHEREVER CONSIDERED APPROPRIATE, FOLLOWING THE DUE PROCEDURE . THE TERM FORCE MAJEURE HAS BEEN DEFINED IN BLACKS LAW DICTIONARY , AS AN EVENT OR EFFECT THAT CAN BE NEITHER ANTICIPATED NOR CONTROLLED WHE N 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 AN YTHING 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 IMPORTAN T FACT THAT THE ENTIRE COUNTRY WAS IN LOCKDOWN, WE SHOULD COMPUTE THE PERI OD OF 90 DAYS BY EXCLUDING AT LEAST THE PERIOD DURING WHICH THE LOCK DOWN WAS IN FORCE. WE MUST FACTOR GROUND REALITIES IN MIND WHILE INTERPRE TING THE TIME LIMIT FOR THE PRONOUNCEMENT OF THE ORDER. LAW IS NOT BROODING OMN IPOTENCE 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 IS HOW THE LAW IS REQUIRED TO INTERPRETED. THE INTERPRETATION SO ASSIGNED BY US IS NOT ONLY IN CONSONANCE WITH THE LETTER CO NO.64/AHD/2017 SHREE DESHI LOHANA VIDHYARTHI BHAVAN VS. ITO(E) ASST.YEAR 2013-14 - 9 - AND SPIRIT OF RULE 34(5) BUT IS ALSO A PRAGMATIC AP PROACH AT A TIME WHEN A DISASTER, NOTIFIED UNDER THE DISASTER MANAGEMENT AC T 2005, IS CAUSING UNPRECEDENTED DISRUPTION IN THE FUNCTIONING OF OUR JUSTICE DELIVERY SYSTEM. UNDOUBTEDLY, IN THE CASE OF OTTERS CLUB VS DIT [(2 017) 392 ITR 244 (BOM)], HONBLE BOMBAY HIGH COURT DID NOT APPROVE A N ORDER BEING PASSED BY THE TRIBUNAL BEYOND A PERIOD OF 90 DAYS, BUT THE N IN THE PRESENT SITUATION HONBLE BOMBAY HIGH COURT ITSELF HAS, VIDE JUDGMENT DATED 15TH APRIL 2020, HELD THAT DIRECTED WHILE CALCULATING THE T IME 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 TAKE N SUO MOTU BY HONBLE JURISDICTIONAL HIGH COURT AND HONBLE 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 O UR 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 FO RCE 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-LI MIT 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 O N THE DISCRETION OF THE BENCHES TO RE-FIX THE MATTERS FOR CLARIFICATIONS BE CAUSE OF CONSIDERABLE TIME LAG BETWEEN THE POINT OF TIME WHEN THE HEARING IS C ONCLUDED AND THE POINT OF TIME WHEN THE ORDER THEREON IS BEING FINALIZED, BUT THEN, IN OUR CONSIDERED VIEW, NO SUCH EXERCISE WAS REQUIRED TO B E CARRIED OUT ON THE FACTS OF THIS CASE. CO NO.64/AHD/2017 SHREE DESHI LOHANA VIDHYARTHI BHAVAN VS. ITO(E) ASST.YEAR 2013-14 - 10 - 8. ON THE BASIS OF THE OBSERVATION MADE IN THE AFOR ESAID JUDGMENT WE EXCLUDE THE PERIOD OF LOCKDOWN WHILE COMPUTING THE LIMITATION PROVIDED UNDER RULE 34(5) OF THE INCOME TAX (APPELLATE TRIBU NAL) RULE 1963. ORDER IS, THUS, PRONOUNCED IN THE OPEN COURT. 9. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 29/06/2020 SD/- SD/- (WASEEM AHMED) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 29/06/2020 TANMAY, SR. PS T RUE COPY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)- 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 04.03.2020 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 05.03.2020 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 29 .06.2020 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S .06.2020 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 29.06.2020 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER