HARISH SHOOR, JALANDHAR V. INCOME TAX OFFICER, WARD 3(4), JALANDHAR

ITA 247/ASR/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8278 (ITAT-AMRITSAR)
• Duration Of Justice: 3 year(s) 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-02-2020
• Assessment Year: 2008-2009
• Appeal Filed On: 04-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ASHWANI GUPTA
• Keywords: Unexplained investment; Income from undisclosed sources; Opportunity of being heard; Additional evidence; Set aside
• Section: 234B; 143(2); 144

Judgement Text

P A G E | 1 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SHRI L. P. SAHU, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO. 247/ASR./2017 (ASSESSMENT YEAR: 2008-09) SHRI HARISH SHOOR (THROUGH LEGAL HEIRS : SMT. NEENA & ISHVAM SHOOR) 518, MODEL TOWN, JALANDHAR VS. INCOME TAX OFFICER WARD 3(4), JALANDHAR PAN BATPS9761E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI ASHWANI GUPTA (C.A.) RESPONDENT BY: SHRI CHARAN DASS, (D.R.) DATE OF HEARING: 07.02.2020 DATE OF PRONOUNCEMENT: 30.06.2020 O R D E R PER RAVISH SOOD, JM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER PASSED BY THE CIT(A)-2, JALANDHAR, DATED 15.02.2017, WHICH IN TURN ARISES FROM THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 144 OF THE INCO ME TAX ACT, 1961 (FOR SHORT ACT), DATED 30.12.2010 FOR A.Y. 2008-09. 2. THE ASSESSEE HAS ASSAILED THE IMPUGNED ORDER ON THE FOLLOWING GROUNDS OF APPEAL BEFORE US: 1. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND AS PER LAW, THE LD. ASSESSING OFFICER HAS GRAVELY ERRED IN PASSING EX-PARTI ASSESSMENT ORDER U/S 144 OF THE ACT AND MAKING ADDITION FOR AN AMOUN T P A G E | 2 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO OF RS. 18,00,000/- BY HOLDING THAT CASH DEPOSITS IN STANDARD CHARTERED BANK ARE UNEXPLAINED INVESTMENT AND INCOME FROM UNDISCLOSED SOURCES. 2. THAT, ON THE FACTS AND IN CIRCUMSTANCES OF THE C ASE, THE LD. CIT(A) HAS MISDIRECTED HIMSELF IN LAW, IN SUSTAINING THE ORDER OF AO BY CONFIRMING THE IMPUGN ED ADDITION OF RS. 18,00,000/-, SIMPLY ON ASSUMPTION THAT IN COURSE OF PRESENT PROCEEDINGS AS AN ADDITIONAL EVIDENCE, COPY OF CANCELLATION OF AGREEMENT WAS NOT FILED. 3. IN THESE REGARDS, ALL THE FINDINGS OF LD. CIT(A) ARE WITHOUT ANY BASIS, AGAINST FACTS & CIRCUMSTANC ES OF THE CASE, AND MATERIAL ON RECORD. FURTHER, LD. CIT( A) HAS MISCONCEIVED HIMSELF IN FRAMING HIS FINDING THAT EVIDENCE FOR CANCELLATION OF AN AGREEMENT, REL IED BY APPELLANT, WAS NOT FILED, WHEREAS THE SAME W AS WELL & APPARENT BEFORE HIM. 4. THAT, ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, EVEN CHARGE OF INTEREST U/S 234A, 234B & 2 34C WAS NOT SUSTAINABLE. 5. THAT THE ORDERS AND FINDINGS OF AUTHORITIES BELO W, TO THE EXTENT DISPUTED, ARE AGAINST LAW AND FACT S OF THE CASE, THE SAME MAY KINDLY BE HELD TO BE INVALID & A DDITIONS CONFIRMED MAY KINDLY BE DELETED OR ANY OTHER RELIEF AS HONORABLE COURT DEEM FIT. 4. THAT THE APPELLANT ASSESSEE CRAVES THE RIGHT TO AMEND, ADD OR ALTER ANY GROUND OF APPEAL BEFORE THE APPEAL IS FINALLY DISPOSED OFF. 3. BRIEFLY STATED, THE ASSESSEE (SINCE DECEASED) HAD F ILED HIS RETURN OF INCOME FOR A.Y. 2008-09 ON 13.10.2008, DECLARING A TOTAL INCOME OF RS. 1,90,766/-. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED AS SUCH UNDER SEC. 14 3(1) OF THE ACT. SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMEN T UNDER SEC. 143(2) OF THE ACT. 4. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE A.O ON A PERUSAL OF THE BANK ACCOUNT HELD BY THE ASSESSEE WITH STANDARD CHARTERE D BANK, JALANDHAR, INTER ALIA OBSERVED THAT THE ASSESSEE HAD MADE CASH DEPOSITS OF RS. 9,0 0,000/- EACH ON 04.04.2007 AND 05.04.2007, WHICH THEREAFTER WAS WITHDRAWN BY HIM F OR MAKING INVESTMENTS IN MUTUAL FUNDS. IN THE ABSENCE OF ANY EXPLANATION AS REGARDS THE SOURC E OF THE AFORESAID INVESTMENT OF RS. 18,00,000/-, THE A.O TREATED THE SAME AS AN UNEXPLA INED INVESTMENT AND ADDED IT TO THE RETURNED INCOME OF THE ASSESSEE. ON THE BASIS OF HI S AFORESAID OBSERVATIONS THE A.O FRAMED THE ASSESSMENT UNDER SEC.144 OF THE ACT, VIDE HIS O RDER DATED 30.12.2010 AND ASSESSED THE INCOME OF THE ASSESSEE AT RS. 19,90,770/-. 5. AGGRIEVED, THE ASSESSEE ASSAILED THE ASSESSMENT ORDER BEFORE THE CIT(A). IN THE COURSE OF THE APPELLATE PROCEEDINGS THE ASSESSEE AS SAILED THE FRAMING OF THE EX-PARTE ASSESSMENT UNDER SEC. 144 OF THE ACT, FOR THE REASO N, THAT THE SAME WAS DONE WITHOUT AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO HIM. AS REGARDS THE SOURCE OF THE CASH P A G E | 3 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO DEPOSITS OF RS. 18,00,000/- MADE BY THE ASSESSEE IN HIS BANK ACCOUNT WITH STANDARD CHARTERED BANK, JALANDHAR, IT WAS SUBMITTED BY THE ASSESSEE T HAT THE SAME WAS OUT OF THE REFUND OF THE EARNEST MONEY OF RS. 25 LACS THAT WAS EARLIER GIVEN HIM FOR PURCHASE OF A PROPERTY TO SMT. KAMLESH W/O SH. BRIJ MOHAN, RESIDENT OF HOUSE NO. 1 72, VIJAY NAGAR, JALANDHAR. IT WAS CLAIMED BY THE ASSESSEE THAT HE HAD ENTERED INTO AN AGREEMENT DATED 09.01.2005 FOR PURCHASE OF A PROPERTY VIZ. 172, VIJAY NAGAR, JALAN DHAR FROM SMT. KAMLESH W/O SH. BRIJ MOHAN, FOR A TOTAL CONSIDERATION OF RS. 42 LACS, AG AINST WHICH AN AMOUNT OF RS. 25 LACS WAS GIVEN AS EARNEST MONEY WHILE FOR THE BALANCE AMOUNT WAS TO BE PAID BY HIM LATEST BY 31.12.2007. AS CLAIMED BY THE ASSESSEE, DUE TO CER TAIN DISPUTE IN RESPECT OF THE PROPERTY UNDER CONSIDERATION I.E. 172, VIJAY NAGAR, JALANDHA R, THE PURCHASE TRANSACTION COULD NOT MATERIALIZE AND WAS CANCELLED ON 28.03.2007, AND TH E EARNEST MONEY OF RS. 25 LACS GIVEN BY THE ASSESSEE TO SMT. KAMLESH W/O SH. BRIJ MOHAN WAS REFUNDED BY HER TO THE ASSESSEE [COPY OF THE AGREEMENT, DATED 09.01.2005 WAS FILED BY T HE ASSESSEE WITH THE CIT(A)]. IN ORDER TO DISPEL ANY DOUBT AS REGARDS THE AUTHENTICITY OF HIS AFORESAID CLAIM THE ASSESSEE HAD EVEN EXPLAINED THE SOURCE OF THE AMOUNT RS. 25 LACS THAT WAS GIVEN BY HIM AS EARNEST MONEY TO SMT. KAMLESH W/O SH. BRIJ MOHAN. IT WAS THE CLAIM O F THE ASSESSEE THAT THE AFORESAID AMOUNT OF RS. 25 LACS WAS OUT OF THE SALE CONSIDERATION TH AT WAS RECEIVED BY HIM ON THE SALE OF A PROPERTY SITUATED AT BASTI DANISHMANDAN, JALANDHAR VIDE AN AGREEMENT DATED 05.01.2005 [COPY OF THE AGREEMENT TO SELL, DATED 05.01.2005 WAS FI LED WITH THE CIT(A)]. IT WAS STATED BY THE ASSESSEE, THAT THOUGH THE SALE DEED FOR THE AFORE SAID PROPERTY AT BASTI DANISHMANDAN WAS EXECUTED ON 11.12.2013, HOWEVER, THE FULL AND FINAL SALE CONSIDERATION WAS RECEIVED BY HIM AT THE TIME OF EXECUTING THE AFORESAID AGREEMENT TO S ELL, DATED 05.01.2005. IN ORDER TO FORTIFY HIS AFORESAID CLAIM, THE ASSESSEE HAD DRAWN SUPPORT OF THE SALE DEED, DATED 11.12.2013, WHEREIN IT WAS STATED THAT THE ENTIRE SALE CONSIDERATION WA S RECEIVED BY THE ASSESSEE IN THE MONTH OF MAY, 2005 AT THE TIME OF EXECUTION OF THE AGREEMEN T TO SELL OF THE AFORESAID PROPERTY SITUATED AT BASTI DANISHMANDAN, JALANDHAR [COPY OF THE SALE DEED, DATED 11.12.2013 WAS FILED BY THE ASSESSEE WITH THE CIT(A)]. IN SUM AND SUBSTANCE, IT WAS THE CLAIM OF THE ASSESSEE BEFORE THE CIT(A) THAT THE SOURCE OF THE AMOUNT OF RS. 18 LACS DEPOSITED BY HIM IN HIS BANK ACCOUNT WITH STANDARD CHARTERED BANK, JALANDHAR WAS OUT OF THE A FORESAID EXPLAINED SOURCES. AS THE DOCUMENTS FILED BY THE ASSESSEE IN SUPPORT OF HIS A FORESAID CLAIM WERE IN THE NATURE OF AN ADDITIONAL EVIDENCE WHICH AS PER HIM HAD A STRONG BEARING ON THE ADJUDICATION OF THE ISSUE P A G E | 4 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO UNDER CONSIDERATION, THEREFORE, IT WAS REQUESTED BY HIM THAT AS HE WAS FOR A SUFFICIENT CAUSE PREVENTED FROM PRODUCING THE SAME IN THE COURSE OF THE ASSESSMENT PROCEEDINGS, THE SAME MAY BE ADMITTED UNDER RULE 46A OF THE INCOME TAX RU LES, 1963. 6. OBSERVING, THAT THE AFORESAID DOCUMENTARY EVIDEN CE WAS IN THE NATURE OF AN ADDITIONAL EVIDENCE FILED BY THE ASSESSEE U/RULE 46A, THE CIT (A) FORWARDED THE SAME TO THE A.O FOR EXAMINATION, AND CALLED FOR A REMAND REPORT FROM HIM. IN COMPLIANCE OF THE DIRECTIONS THE A.O FILED HIS REMAND REPORT, DATED 02/07.12.2016 WITH T HE CIT(A). IT WAS STATED BY THE A.O THAT THE ASSESSEE IN THE COURSE OF THE ASSESSMENT PROCEEDING S WAS AFFORDED SUFFICIENT OPPORTUNITY TO PRODUCE THE REQUISITE DOCUMENTS/INFORMATION WHICH H OWEVER IT HAD FAILED TO AVAIL. AS REGARDS THE MERITS OF THE CLAIM OF THE ASSESSEE IN RESPECT OF THE SOURCE OF THE CASH DEPOSITS OF RS. 18 LACS IN HIS BANK ACCOUNT WITH STANDARD CHARTERED BA NK, JALANDHAR, THERE WAS NO REBUTTAL OF THE SAME BY THE A.O. AFTER RECEIVING THE AFORESAID REM AND REPORT, THE CIT(A) FORWARDED THE SAME TO THE ASSESSEE FOR HIS COUNTER COMMENTS. IN REPLY, THE ASSESSEE VIDE HIS REJOINDER TO THE REMAND REPORT, ONCE AGAIN SUBMITTED BEFORE THE CI T(A) THAT THE EX-PARTE ASSESSMENT WAS FRAMED BY THE A.O WITHOUT AFFORDING SUFFICIENT OPPO RTUNITY OF BEING HEARD TO HIM. IN HIS REPLY THE ASSESSEE SPECIFICALLY OBJECTED TO THE OBSERVATIONS RECORDED BY THE A.O IN HIS REMAND REPORT, ON THE GROUND THAT THE SAME WERE FOUND TO BE CONTRA RY TO THE RECORD. IN SO FAR THE MERITS OF HIS CLAIM AS REGARDS THE SOURCE OF THE CASH DEPOSITS OF RS. 18 LACS IN THE BANK ACCOUNT WAS CONCERNED, IT WAS SUBMITTED BY THE ASSESSEE THAT TH E A.O HAD NOT RAISED ANY OBJECTION OR GIVEN ANY ADVERSE COMMENTS AS REGARDS THE SAME. 7. THE CIT(A) AFTER DELIBERATING ON THE FACTS OF TH E CASE IN THE BACKDROP OF THE REMAND REPORT OF THE A.O, AND ALSO THE REJOINDER FILED BY THE ASSESSEE, THEREIN HELD A CONVICTION THAT AS THE ASSESSEE HAD FAILED TO FURNISH THE REQUISITE IN FORMATION IN THE COURSE OF THE ASSESSMENT PROCEEDING, THEREFORE, THE A.O WAS JUSTIFIED IN PAS SING AN EX-PARTE ASSESSMENT ORDER UNDER SEC. 144 OF THE ACT. AS REGARDS THE CLAIM OF THE AS SESSEE THAT SUFFICIENT OPPORTUNITY WAS NOT PROVIDED TO HIM FOR SUBSTANTIATING THE SOURCE OF TH E CASH DEPOSITS IN HIS BANK ACCOUNT, THE CIT(A) OBSERVED THAT THE SAID ASPECT WAS TAKEN CARE OF IN THE COURSE OF THE APPELLATE PROCEEDINGS BEFORE HIM AS THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE WAS FORWARDED TO THE A.O FOR NECESSARY EXAMINATION. AT THE SAME TIME, IT WAS OBSERVED BY THE CIT(A), THAT AFTER P A G E | 5 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO HAVING PERUSED THE EVIDENCE FURNISHED BY THE ASSESS EE IN THE COURSE OF THE APPELLATE PROCEEDINGS BEFORE HIM, THE SOURCE OF THE CASH DEPO SITS OF RS. 18 LACS IN THE BANK ACCOUNT OF THE ASSESSEE STILL REMAINED UNSUBSTANTIATED. IT WAS OBSERVED BY THE CIT(A), THAT THOUGH THE ASSESSEE HAD PRODUCED A PHOTOCOPY OF THE AGREEMENT FOR PURCHASE OF THE PROPERTY, BUT NO SUBSTANTIVE EVIDENCE OF ANY AGREEMENT FOR CANCELLAT ION OF THE SAME WAS FILED BEFORE HIM. IT WAS FURTHER OBSERVED BY THE CIT(A), THAT NEITHER ANY CO PY OF THE CANCELLATION AGREEMENT EXECUTED WITH THE SELLER OF THE PROPERTY NOR ANY RECEIPT SUP PORTING THE CANCELLATION AGREEMENT, WAS FILED BY THE ASSESSEE BEFORE HIM. BEING OF THE VIEW, THAT THE EVIDENCE RELIED UPON BY THE ASSESSEE WAS NOT SUPPORTED BY ANY OUTSIDE AUTHENTICATION, TH E CIT(A) HELD A CONVICTION THAT THE ASSESSEE HAD FAILED TO DISCHARGE THE BURDEN AS REGA RDS EXPLAINING THE SOURCE OF THE FUNDS DEPOSITED IN HIS BANK ACCOUNT. IN THE BACKDROP OF H IS AFORESAID DELIBERATIONS, THE CIT(A) WAS OF THE VIEW THAT THE A.O WAS JUSTIFIED IN TREATING THE AMOUNT OF CASH DEPOSITS OF RS. 18 LACS AS THE UNEXPLAINED INCOME OF THE ASSESSEE FOR THE YEAR UND ER CONSIDERATION. ACCORDINGLY, FINDING NO INFIRMITY IN THE VIEW TAKEN BY THE A.O THE CIT(A) U PHELD HIS ORDER AND DISMISSED THE APPEAL. 8. THE ASSESSEE BEING AGGRIEVED WITH THE ORDER PASS ED BY THE CIT(A) HAS CARRIED THE MATTER IN APPEAL BEFORE US. AT THE VERY OUTSET OF T HE HEARING OF THE APPEAL, IT WAS SUBMITTED BY THE LEARNED AUTHORIZED REPRESENTATIVE (FOR SHORT A. R.) FOR THE ASSESSEE THAT THE ORDER PASSED BY THE CIT(A) WAS FOUND TO BE PERVERSE. IT WAS SUBM ITTED BY THE LD. A.R, THAT THOUGH THE CIT(A) AFTER APPRECIATING THE FACT SITUATION OF THE CASE H AD IN ALL FAIRNESS ADMITTED THE ADDITIONAL DOCUMENTARY EVIDENCE WHICH SUBSTANTIATED THE SOURC E OF THE CASH DEPOSITS IN THE BANK ACCOUNT OF THE ASSESSEE, HOWEVER, HE HAD FAILED TO CONSIDER AND APPRECIATE THE CONTENTS OF THE SAME IN THE RIGHT PERSPECTIVE. ELABORATING ON HIS A FORESAID CONTENTION, IT WAS SUBMITTED BY THE LD. A.R THAT AS THE CANCELLATION OF THE AGREEMENT, DATED 09.01.2005, THAT WAS EXECUTED BY THE ASSESSEE FOR PURCHASE OF A PROPERTY WITH SMT. KAMLE SH W/O SH. BRIJ MOHAN, R/O 172, VIJAY NAGAR, JALANDHAR, WAS CLEARLY BORNE ON THE BACKSIDE OF THE SAID AGREEMENT, THEREFORE, IT WAS INCORRECT ON THE PART OF THE CIT(A) TO OBSERVE THAT NO EVIDENCE IN SUPPORT OF THE CANCELLATION OF THE SAID AGREEMENT WAS FILED BY THE ASSESSEE. THE LD. A.R TOOK US THROUGH THE COPY OF THE AGREEMENT, DATED 09.01.2005 THAT WAS EXECUTED BY THE ASSESSEE WITH SMT. KAMLESH W/O SH. BRIJ MOHAN, WHEREIN THE BACKSIDE OF THE SAME CLEARL Y REVEALED A CANCELLATION OF THE SAID AGREEMENT AND REFUND OF THE EARNEST MONEY OF RS. 25 LACS TO THE ASSESSEE ON 28.03.2007 P A G E | 6 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO [PAGE 24 (BACKSIDE)] OF THE ASSESSES PAPER BOOK (FOR SHOR T APB). ALSO, THE LD. A.R DREW OUR ATTENTION TO THE CERTIFIED TRANSLATED COPY OF THE A FORESAID AGREEMENT, DATED 09.01.2005 [PAGE 25-26 OF APB]. ON THE BASIS OF THE AFORESAID FACTS, IT W AS SUBMITTED BY THE LD. A.R THAT THE CIT(A) HAD ERRED IN LOOSING SIGHT OF THE AFORESAID MATERIAL ASPECT, AND THEREIN ON THE BASIS OF INCORRECT FACTS HAD WRONGLY UPHELD THE VIEW TAKEN B Y THE A.O. AS SUCH, IT WAS SUBMITTED BY THE LD. A.R THAT AS THE SOURCE OF THE CASH DEPOSITS OF RS.18 LACS IN THE BANK ACCOUNT OF THE ASSESSEE WITH THE STANDARD CHARTERED BANK, JALANDHA R STANDS DULY EXPLAINED, AND THE SAME HAD NOT BEEN REBUTTED BY THE A.O IN HIS REMAND REP ORT, DATED 02/07.12.2016 FILED WITH THE CIT(A), THEREFORE, THE IMPUGNED ADDITION COULD NOT BE SUSTAINED AND WAS LIABLE TO BE VACATED. 9. PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTAT IVE (FOR SHORT D.R) RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 10. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FO R BOTH THE PARTIES, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIAL AVAILABLE ON RECORD. OUR INDULGENCE IN THE PRESENT APPEAL HAS BEEN SOUGHT BY THE ASSESSEE, FOR ADJUDIC ATING, AS TO WHETHER OR NOT THE LOWER AUTHORITIES ARE JUSTIFIED IN TREATING THE CASH DEPO SITS OF RS. 18 LACS AS AN UNEXPLAINED INVESTMENT IN HIS HANDS. ADMITTEDLY, THE ASSESSEE H AD MADE CASH DEPOSITS OF RS. 9 LACS EACH ON 04.04.2007 AND 05.04.2007 IN HIS BANK ACCOUNT WI TH STANDARD CHARTERED BANK, JALANDHAR. AS IS DISCERNIBLE FROM THE ASSESSMENT ORDER, IN THE ABSENCE OF ANY EXPLANATION AS REGARDS THE SOURCE OF THE AFORESAID CASH DEPOSITS AGGREGATING T O RS. 18 LACS, THE SAME WERE TREATED AS AN UNEXPLAINED INVESTMENT BY THE A.O. ON APPEAL, WE FI ND THAT THE ASSESSEE HAD SUBMITTED CERTAIN ADDITIONAL DOCUMENTARY EVIDENCE TO SUBSTANT IATE THE SOURCE OF THE AFORESAID CASH DEPOSITS. THE CIT(A) FORWARDED THE ADDITIONAL EVID ENCE THAT WAS FILED BY THE ASSESSEE WITH HIM U/RULE 46A OF THE INCOME TAX RULES, 1963, TO TH E A.O AND CALLED FOR A REMAND REPORT. ON A PERUSAL OF THE RECORDS, WE FIND THAT IT HAS BEEN THE CLAIM OF THE ASSESSEE THAT THE CASH DEPOSIT OF RS. 18 LAC IN HIS BANK ACCOUNT WITH STAN DARD CHARTERED BANK, JALANDHAR, WAS MADE OUT OF THE EARNEST MONEY OF RS. 25 LAC THAT WAS REC EIVED BACK BY HIM ON 28.03.2007 I.E PURSUANT TO CANCELLATION OF THE AGREEMENT, DATED 09.01.2005 THAT WAS EARLIER EXECUTED BY HIM WITH SMT. KAMLESH W/O SH. BRIJ MOHAN R/O 172, VIJAY NAGAR, JALANDHAR FOR PURCHASE OF A PROPERTY. AS OBSERVED BY US HEREINABOVE, THE ASSESS EE IN ORDER TO DISPEL ANY DOUBTS AS P A G E | 7 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO REGARDS THE VERACITY OF HIS AFORESAID CLAIM HAD EVE N EXPLAINED THE SOURCE FROM WHERE THE AFORESAID EARNEST MONEY OF RS. 25 LAC WAS GIVEN BY HIM AT THE TIME OF EXECUTING THE AGREEMENT, DATED 09.01.2005 WITH SMT. KAMLESH W/O SH. BRIJ MOHAN. ON THE BASIS OF SUPPORTING DOCUMENTARY EVIDENCE I.E AN AGREEMENT T O SELL, DATED 05.01.2005 THAT WAS EXECUTED BY THE ASSESSEE AT THE TIME OF SALE OF HIS PROPERTY SITUATED AT BASTI DANISHMANDAN, JALANDHAR, THAT THE ASSESSEE HAD IN THE COURSE OF T HE PROCEEDINGS BEFORE THE CIT(A) EXPLAINED THE SOURCE OF THE EARNEST MONEY OF RS. 25 LACS THAT WAS PARTED BY HIM IN FAVOUR OF SMT. KAMLESH W/O SH. BRIJ MOHAN I.E AT THE TIME OF EXECU TION OF THE AGREEMENT, DATED 09.01.2005. ON A PERUSAL OF THE AFORESAID AGREEMENT DATED 09. 01.2005, WE FIND THAT THE ASSESSEE HAD AGREED TO PURCHASE THE PROPERTY VIZ. 172, VIJAY NAG AR, JALANDHAR FROM SMT. KAMLESH W/O SH. BRIJ MOHAN FOR A TOTAL CONSIDERATION OF RS. 42 LACS . OUT OF THE TOTAL PURCHASE CONSIDERATION AN AMOUNT OF RS. 25 LACS WAS GIVEN BY THE ASSESSEE AS EARNEST MONEY AT THE TIME OF EXECUTION OF THE AGREEMENT, DATED 09.01.2005, WHILE FOR THE BA LANCE AMOUNT WAS TO BE PAID BY HIM LATEST BY 31.12.2007. AS OBSERVED BY US HEREINABOVE, IT IS THE CLAIM OF THE ASSESSEE THAT DUE TO CERTAIN DISPUTE AS REGARDS THE AFORESAID PROPERTY U NDER CONSIDERATION THE AGREEMENT DATED, 09.01.2005 THAT WAS EXECUTED BY THE ASSESSEE WITH S MT. KAMLESH W/O SH. BRIJ MOHAN COULD NOT MATERIALIZE AND WAS CANCELLED ON 28.03.2007, AN D THE AMOUNT OF EARNEST MONEY OF RS. 25 LACS WAS RECEIVED BACK BY HIM FROM SMT. KAMLESH W/O SH. BRIJ MOHAN. INSOFAR THE AFORESAID CLAIM OF THE ASSESSEE AS REGARDS CANCELLATION OF TH E AGREEMENT, DATED 09.01.2005 ON 28.03.2007, AND REFUND OF THE EARNEST MONEY OF RS. 25 LACS FROM SMT. KAMLESH W/O SH. BRIJ MOHAN IS CONCERNED, WE FIND THAT THE SAME IS CLEARL Y DISCERNIBLE FROM A PERUSAL OF THE BACKSIDE OF THE AGREEMENT, DATED 09.01.2005 [BACKSIDE OF P AGE 24 OF APB] THAT WAS FILED BY THE ASSESSEE WITH THE CIT(A). ALSO, A CERTIFIED TRANSLA TED COPY OF THE AFORESAID AGREEMENT, DATED 09.01.2005 HAS BEEN FILED BY THE ASSESSEE BEFORE US [PAGE 25-26 OF APB]. IN OUR CONSIDERED VIEW, THE CIT(A) AFTER ADMITTING THE AFORESAID DOCU MENTARY EVIDENCE THAT WAS FURNISHED BY THE ASSESSEE AS AN ADDITIONAL EVIDENCE U/RULE 46A OF THE INCOME TAX RULES, 1963, HAD FAILED TO TAKE COGNIZANCE OF THE TERMS OF THE CANCELLATION ME NTIONED ON THE BACKSIDE OF THE AFORESAID AGREEMENT, DATED 09.01.2005, WHICH IS FOUND TO BE SIGNED BOTH BY THE ASSESSEE (PURCHASER) AND SMT. KAMLESH (SELLER), AS WELL AS WITNESSED BY A THIRD PARTY, AND READ AS UNDER : HARISH SHOOR 2 ND PARTY WHO PAID BIANA RS. 25 LACS (RUPEES TWENTY FI VE LACS ONLY) TO KAMLESH FIRST PARTY HAS BEEN TAKEN BACK & NO DUES ARE BALANCE & AGREEMENT D TD. 09/01/2005 STANDS CANCELLED AND FIRST PARTY IS FREE TO P A G E | 8 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO SELL ETC. THIS PROPERTY. SECOND PARTY & HIS LEGAL H EIRS WILL NOT CLAIM ON FIRST PARTY & SECOND PARTY A ND THEIR LEGAL HEIRS WILL NOT CLAIM ON FIRST PARTY ON THIS PROPERTY. DATED 28/03/2007 SD/- SD/- (IN HINDI) SD/- (IN ENGLISH) WITNESS FIRST PARTY SECOND PARTY (KAMLESH) (HARISH SHOOR) IN THE BACKDROP OF THE AFORESAID FACTS, WE ARE OF T HE CONSIDERED VIEW THAT THE ASSESSEE HAD DULY SUBSTANTIATED ON THE BASIS OF SUPPORTING DOCUM ENTARY EVIDENCE THAT WAS FILED WITH THE LOWER AUTHORITIES THE AVAILABILITY OF CASH OF RS. 2 5 LACS WITH HIM ON 28.03.2007 I.E. ON REFUND OF EARNEST MONEY PURSUANT TO CANCELLATION OF THE AGRE EMENT, DATED 09.01.2005. ALTHOUGH, THE CIT(A) IN THE COURSE OF THE APPELLATE PROCEEDINGS H AD FORWARDED THE ADDITIONAL DOCUMENTARY EVIDENCE THAT WAS FILED BY THE ASSESSEE IN ORDER TO SUPPORT HIS CLAIM AS REGARDS THE SOURCE OF THE CASH DEPOSITS OF RS. 18 LAC IN HIS BANK ACCOUNT WITH STANDARD CHARTERED BANK, JALANDHAR, HOWEVER, WE FIND THAT THERE IS NO WHISPER OF ANY RE BUTTAL OF THE SAID CLAIM OF THE ASSESSEE IN THE REMAND REPORT DATED 02/03.12.2016 FILED BY THE A. O. IN OUR CONSIDERED VIEW, IF THE A.O IN THE COURSE OF THE REMAND PROCEEDINGS WOULD HAD ANY DOUB TS AS REGARDS THE VERACITY OF THE AFORESAID CLAIM OF CANCELLATION OF THE AGREEMENT, DATED 09.01.2005, THEN HE WOULD HAVE CROSS- VERIFIED THE SAME AND/OR CALLED FOR FURTHER DETAILS FROM THE ASSESSEE. IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, WE ARE UNABLE TO PERSUADE O URSELVES TO SUBSCRIBE TO THE VIEW TAKEN BY THE CIT(A) THAT THE ASSESSEE HAD FAILED TO SUBSTANT IATE THE AVAILABILITY OF FUNDS WITH HIM PURSUANT TO THE CANCELLATION OF THE AFORESAID AGRE EMENT, DATED 09.01.2005. IN THE TOTALITY OF THE FACTS BEFORE US, WE FIND SUBSTANTIAL FORCE IN THE C LAIM OF THE LD. A.R THAT AS THE ASSESSEE HAD SUFFICIENT AMOUNT OF RS. 25 LACS AVAILABLE WITH HIM ON 28.03.2007 FOR MAKING OF CASH DEPOSITS OF RS. 9 LACS EACH IN HIS BANK ACCOUNT WITH STANDARD C HARTERED BANK, JALANDHAR ON 04.04.2007 AND 05.04.2007, THEREFORE, THE SAME COULD NOT HAVE BEEN ADDED AS AN UNEXPLAINED INVESTMENT IN HIS HANDS. ON THE BASIS OF OUR AFORESAID DELIBER ATIONS, WE NOT FINDING OURSELVES TO BE IN AGREEMENT WITH THE VIEW TAKEN BY THE LOWER AUTHORIT IES SET ASIDE THE ORDER OF THE CIT(A) AND VACATE THE ADDITION OF RS. 18 LACS MADE BY THE A.O. 11. BEFORE PARTING, WE MAY HEREIN DEAL WITH A PROCE DURAL ISSUE THAT THOUGH THE HEARING OF THE CAPTIONED APPEAL WAS CONCLUDED ON 07/02/2020, H OWEVER, THIS ORDER IS BEING PRONOUNCED MUCH AFTER THE EXPIRY OF 90 DAYS FROM THE DATE OF C ONCLUSION OF HEARING. WE FIND THAT RULE 34(5) OF THE INCOME-TAX APPELLATE TRIBUNAL RULES, 1962, W HICH ENVISAGES THE PROCEDURE FOR P A G E | 9 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO PRONOUNCEMENT OF ORDERS, PROVIDES AS FOLLOWS: (5) T HE 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 PRONOU NCEMENT. IN A CASE WHERE NO DATE OF PRONOUNCEMENT IS GIVEN BY THE BENCH, EVERY ENDEAVOU R 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 PRACTICABLE SO TO DO ON THE GROUND OF EXCEPTIONAL AND EXTRAORDINARY CIRCUMSTANCES OF THE CASE, THE BENCH SHALL FIX A FUTURE DAY FOR PRONOUNCEMENT OF THE ORDER, AND SUCH DATE SHALL NOT ORDINARILY BE A DAY BEYOND A FURTHER PERIOD OF 30 DAYS AND DUE NOTICE OF THE DAY SO FIXED SHALL BE GIVEN ON TH E NOTICE BOARD. AS SUCH, ORDINARILY THE ORDER ON AN APPEAL SHOULD BE PRONOUNCED BY THE BENCH WITH IN 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 IN SERTED AS A RESULT OF DIRECTIONS OF HONBLE HIGH COURT IN THE CASE OF SHIVSAGAR VEG RESTAURANT VS AC IT [(2009) 317 ITR 433 (BOM)] WHEREIN IT WAS INTER ALIA, OBSERVED AS UNDER: WE, THEREFORE, DIRECT THE PRESIDENT OF THE APPELLA TE 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 APPROPRI ATE ADMINISTRATIVE DIRECTIONS TO ALL THE BENCHES OF THE TRIBUNAL IN THAT BEHALF. WE HOPE AND TRUST THAT SU ITABLE GUIDELINES SHALL BE FRAMED AND ISSUED BY THE PRESID ENT OF THE APPELLATE TRIBUNAL WITHIN SHORTEST REASONABLE TIME AND FOLLOWED STRICTLY BY ALL THE BE NCHES OF THE TRIBUNAL. IN THE MEANWHILE (EMPHASIS, BY UNDERLINING, SUPPLIED BY US NOW), ALL THE REVISIONA L AND APPELLATE AUTHORITIES UNDER THE INCOME-TAX AC T ARE DIRECTED TO DECIDE MATTERS HEARD BY THEM WITHIN A PERIOD OF THREE MONTHS FROM THE DATE CASE IS CLOSED FOR JUDGMENT. IN THE RULE SO FRAMED, AS A RESULT OF THESE DIRECTI ONS, THE EXPRESSION ORDINARILY HAS BEEN INSERTED IN THE REQUIREMENT TO PRONOUNCE THE ORDER WITHIN A PERIOD OF 90 DAYS. THE QUESTION THEN ARISES WHETHER OR NOT THE PASSING OF THIS ORDE R, BEYOND A PERIOD OF NINETY DAYS IN THE CASE BEFORE US WAS NECESSITATED BY ANY EXTRAORDINARY C IRCUMSTANCES. 12. WE FIND THAT THE AFORESAID ISSUE AFTER EXHAUST IVE DELIBERATIONS HAD BEEN ANSWERED BY A COORDINATE BENCH OF THE TRIBUNAL VIZ. ITAT, MUMBAI F BENCH IN DCIT, CENTRAL CIRCLE-3(2), MUMBAI VS. JSW LIMITED & ORS. [ITA NO. 6264/MUM/18 ; DATED 14/05/2020, WHEREIN IT WAS OBSERVED AS UNDER : LET US IN THIS LIGHT REVERT TO THE PREVAILING SI TUATION IN THE COUNTRY. ON 24TH MARCH, 2020, HONBL E PRIME MINISTER OF INDIA TOOK THE BOLD STEP OF IMPOSING A NATIONWIDE LOCKDOWN, FOR 21 DAYS, TO PREVENT THE P A G E | 10 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO 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 RELA XATION 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 B EEN SUCH AN UNPRECEDENTED SITUATION, CAUSING DISRUPTION IN THE FUNCTIONING OF JUDICIAL MACHINERY, THAT HONBLE 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 LOCKDOW N IS LIFTED IN THE JURISDICTIONAL AREA WHERE THE DISP UTE LIES OR WHERE THE CAUSE OF ACTION ARISES SHALL BE EXTENDED FOR A PERIOD OF 15 DAYS AFTER THE LIFTING OF LOCKDOWN. HONBLE BOMBAY HIGH COURT, IN AN ORDE R DATED 15TH APRIL 2020, HAS, BESIDES EXTENDING THE V ALIDITY OF ALL INTERIM ORDERS, HAS ALSO OBSERVED TH AT, IT IS ALSO CLARIFIED THAT WHILE CALCULATING TIME F OR DISPOSAL OF MATTERS MADE TIME-BOUND BY THIS COUR T, THE PERIOD FOR WHICH THE ORDER DATED 26TH MARCH 2020 CO NTINUES TO OPERATE SHALL 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 FURT HER TILL 15TH JUNE 2020. IT HAS BEEN AN UNPRECEDEN TED SITUATION NOT ONLY IN INDIA BUT ALL OVER THE WORLD. GOVERNMENT OF INDIA HAS, VIDE NOTIFICATION DATED 1 9TH FEBRUARY 2020, TAKEN THE STAND THAT, THE CORONAVIRU S 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 BLACKS LAW DICTIONARY, AS AN EVENT OR EFFECT THAT CAN BE NEITHER ANTICIPATED NOR CONTROLL ED WHEN SUCH IS THE POSITION, AND IT IS OFFICIALLY SO NOTIFIED BY THE GOVERNMENT OF INDIA AND THE COVID-1 9 EPIDEMIC HAS BEEN NOTIFIED AS A DISASTER UNDER THE NATIONAL DISASTER MANAGEMENT ACT, 2005, AND ALS O 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 O F ORDERS WITHIN 90 DAYS, DISREGARDING THE IMPORTANT FACT THAT THE ENTIRE COUNTRY WAS IN LOCKDOWN, WE SH OULD COMPUTE THE PERIOD OF 90 DAYS BY EXCLUDING AT LEAST THE PERIOD DURING WHICH THE LOCKDOWN WAS IN F ORCE. WE MUST FACTOR GROUND REALITIES IN MIND WHILE INTERPRETING THE TIME LIMIT FOR THE PRONOUNCEMENT O F THE ORDER. LAW IS NOT BROODING OMNIPOTENCE IN THE SKY. IT IS A PRAGMATIC TOOL OF THE SOCIAL ORDER. TH E 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 I S NOT ONLY IN CONSONANCE WITH THE LETTER AND SPIRIT O F RULE 34(5) BUT IS ALSO A PRAGMATIC APPROACH AT A TIME WHEN A DISASTER, NOTIFIED UNDER THE DISASTER MANAGE MENT ACT 2005, IS CAUSING UNPRECEDENTED DISRUPTION IN THE FUNCTIONING OF OUR JUSTICE DELIVE RY SYSTEM. UNDOUBTEDLY, IN THE CASE OF OTTERS CLUB VS DIT [(2017) 392 ITR 244 (BOM)], HONBLE BOMBAY HIGH COURT DID NOT APPROVE AN ORDER BEING PASSED BY THE TRIBUNAL BEYOND A PERIOD OF 90 DAYS, BUT THEN I N THE PRESENT SITUATION HONBLE BOMBAY HIGH COURT ITSELF HAS, VIDE JUDGMENT DATED 15TH APRIL 2020, HE LD THAT DIRECTED WHILE CALCULATING THE TIME FOR DI SPOSAL OF MATTERS MADE TIME BOUND BY THIS COURT, THE PERIO D 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 HONBLE 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 OUR CONSIDERED VIEW, EVEN WITHO UT THE WORDS ORDINARILY, IN THE LIGHT OF THE ABOV E ANALYSIS OF THE LEGAL POSITION, THE PERIOD DURING W HICH LOCKOUT WAS IN FORCE IS TO EXCLUDED FOR THE PU RPOSE OF TIME LIMITS SET OUT IN RULE 34(5) OF THE APPELLA TE TRIBUNAL RULES, 1963. VIEWED THUS, THE EXCEPTION , TO 90-DAY TIME-LIMIT FOR PRONOUNCEMENT OF ORDERS, INHE RENT IN RULE 34(5)(C), WITH RESPECT TO THE PRONOUNCEMENT OF ORDERS WITHIN NINETY DAYS, CLEARLY COMES INTO PLAY IN THE PRESENT CASE. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE AFO RESAID OBSERVATIONS OF THE TRIBUNAL AND FINDING OURSELVES TO BE IN AGREEMENT WITH THE SAME, THEREIN RESPECTFULLY FOLLOW THE SAME. AS SUCH, WE ARE OF THE CONSIDERED VIEW THAT THE PERIOD DURING WHICH THE LOCKOUT WAS IN FORCE SHALL P A G E | 11 ITA NO. 247/ASR./2017 A.Y. 2008-09 SHRI HARISH SHOOR VS. ITO STAND EXCLUDED FOR THE PURPOSE OF WORKING OUT THE T IME LIMIT FOR PRONOUNCEMENT OF ORDERS, AS ENVISAGED IN RULE 34(5) OF THE APPELLATE TRIBUNAL R ULES, 1963. 13. RESULTANTLY, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TA X (APPELLATE TRIBUNAL) RULES, 1962, BY PLACING THE DETAILS ON THE NOTICE BOARD. SD/- SD /- (L. P. SAHU) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE 30.06.2020 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. DR, ITAT, AMRITSAR BENCH, AMRITS A R 6. / GUARD FILE. //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) / ITAT, AMRITSAR. BENCH, AMRITSAR.