DIAMOND ENTERPRISES, MUMBAI V. ASST CIT 19(1), MUMBAI

ITA 2852/MUM/2015

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7926 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 2 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 13-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIK
• Keywords: Business income; Additional evidence
• Section: 143(3); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. VIKAS AWASTHY, JUDICIAL MEMBER I. T. A. NO. 2852/MUM/2015 ASS ESSMENT YEAR: 2010-11 DIAMOND ENTERPRISES 14, JAIN CHAMBERS, 577, S.V. ROAD, BANDRA (W), MUMBAI 400050 [AACFD 8449E] VS. ASST. CIT 19(1) ROOM NO. 322, PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 400012 (APPELLANT) (RESPONDENT) APPELLANT BY : SH. ANIL SATHE (CA) RESPONDENT BY: MS. KAVITA P. KAUSHIK (DR) DATE OF HEARING: 25.02.2020 DATE OF PRONOUNCEMENT: 27.07.2020 ORDER PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-34, MUMBAI (C IT(A) FOR SHORT) DATED 07.05.2013, DISMISSING THE ASSESSEES APPEAL CONTES TING ITS ASSESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 ('THE ACT' HEREI NAFTER) DATED 20.03.2013 FOR ASSESSMENT YEAR (AY) 2010-11, WHICH IN FACT STANDS ENHANCED. 2.1 THE FACTS IN BRIEF, I.E., TO THE EXTENT RELEVAN T, ARE THAT THE ASSESSEE, A MUMBAI BASED PARTNERSHIP FIRM IN THE BUSINESS OF DE VELOPMENT OF REAL-ESTATE, PURCHASED, VIDE INDENTURE DATED 06.8.1985, NON-AGRI CULTURAL LAND ADMEASURING 1517.4 SQ. MTRS. AT VILLAGE KOLE KALYAN, KALINA, SA NTACRUZ (EAST), MUMBAI (TOGETHER WITH BUILDING CONSISTING OF GROUND AND TW O UPPER FLOORS, CALLED SEROVILLA BUILDING) FOR A CONSIDERATION OF RS. 17 5 LAKHS. THE ASSESSEE CONSTRUCTED A NEW BUILDING COMPRISING GROUND AND SE VEN FLOORS, SELLING THE ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 2 SAME, BEING RESIDENTIAL FLATS (AROUND THE YEAR 1992 ) TO BUYERS, WHO FORMED A SOCIETY CALLED DIAMOND DECK CO-OPERATIVE HOUSING S OCIETY (DDS)), TO WHICH (SOCIETY) THE ASSESSEE WAS OBLIGED TO EXECUTE A LEA SE, I.E., IN RESPECT OF THE LAND BENEATH THE SAID BUILDING, @ RS. 10 PER MONTH. THE ASSESSEE ALSO FILED SUITS (IN THE COURT OF SMALL CAUSES) FOR EVICTION OF THE TWEL VE OCCUPANTS OF THE SEROVILLA BUILDING (SB). VIDE CONSENT DECREE DATED 01.12.2006 (IN R.A.E. SUIT NO. 285/667 OF 2003/PB PAGES 138-156), EACH OF THE TWEL VE OCCUPANTS OF THE SEROVILLA FLATS AGREED TO VACATE THEIR FLATS (SUIT PREMISES) BY 31.01.2007 TO ENABLE THE ASSESSEE TO DEMOLISH THE SEROVILLA BUILD ING AND CONSTRUCT A NEW BUILDING IN ITS PLACE, TO BE COMPLETED WITHIN A PER IOD OF TWENTY-FOUR MONTHS, I.E., BY 31.01.2009, AND LATEST WITH A GRACE PERIOD EXTENDING UP TO 30.7.2009. THE ASSESSEE WAS REQUIRED TO, AND DID INDEED PAY, R S. 4.50 LAKHS TO EACH OF THE OCCUPANTS AS REFUNDABLE SECURITY DEPOSIT, REFUNDABL E ON THE ASSESSEE HANDING OVER THE POSSESSION OF THE NEW FLATS (ADMEASURING 4 80 SQ. FT. EACH) AT THE SITE OF THE SB (PROPOSED TO BE CONSTRUCTED AS STILT PLUS SE VEN UPPER FLOORS) BY WAY OF PERMANENT ALTERNATE ACCOMMODATION ON OWNERSHIP BASI S, FREE-OF-COST, I.E., IN LIEU OF THE SUIT PREMISES. FAILURE TO DO SO WOULD O BLIGE THE ASSESSEE TO PAY A MONTHLY SUM OF RS. 5,000/- AS RENT/LEASE CHARGES TO WARD ACQUIRING TEMPORARY ACCOMMODATION, WHICH OBLIGATION WOULD CONTINUE UP T O THE DATE OF GRANT OF VACANT POSSESSION OF THE PERMANENT ALTERNATE ACCOMM ODATION, ONLY UPON WHICH WAS THE ASSESSEE ENTITLED TO RECEIVE BACK THE SECUR ITY DEPOSIT OF RS. 4.50 LAKHS. TILL SUCH TIME, THE EXISTING RELATIONSHIP OF LANDLO RD AND TENANT WOULD CONTINUE BETWEEN THE ASSESSEE AND THE 12 OCCUPANTS QUA THE SEROVILLA FLATS (SUIT PREMISES). THOUGH THE ASSESSEE OBTAINED VACANT POSS ESSION OF THE SEROVILLA BUILDING (FROM THE OCCUPANTS), IT DID NOT CONSTRUCT ANY BUILDING NOR, AS IT APPEARS, EVEN DEMOLISH THE SEROVILLA BUILDING. THE ASSESSEE, VIDE CONVEYANCE DEED DATED 28.7.2010, SOLD ITS RIGHTS IN THE 1517. 4 SQ. MTRS. OF LAND TO M/S. RSB DEVELOPERS PVT. LTD. (RSB) FOR A CONSIDERATION OF RS. 175 LAKHS. HOWEVER, AS THE ENTIRE SUM WAS RECEIVED BY IT DURING THE FINANC IAL YEAR (F.Y.) 2009-10, I.E., ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 3 THE PREVIOUS YEAR RELEVANT TO AY 2010-11, THE SAME WAS OFFERED TO TAX FOR THAT YEAR. 2.2 THREE, ALBEIT INTER-RELATED, ISSUES HAVE ARISEN IN THE ASSESSMENT OF THE INCOME ARISING TO THE ASSESSEE ON THE SAID SALE, AN D WHICH ARE THE SUBJECT MATTER OF DISPUTE BETWEEN THE ASSESSEE AND REVENUE IN THE PRESENT CASE. THE FIRST IS THE DEDUCTION OF THE COST OF TRANSFERRABLE DEVELOPMENT RIGHTS (TDRS), CLAIMED AT RS. 14,41,900 (THROUGH DEBIT TO THE PROFIT & LOSS (P&L) ACCOUNT FOR THE YEAR ENDING 31.3.2010). THESE WERE ACQUIRED FOR 130 SQ. MTRS. (1399.32 SQ.FT.) FROM ONE, M/S. SHAH CONSTRUCTION CO., BANDRA, VIDE AGREE MENT DATED 06.7.2006 (PB PGS. 112-120) FOR RS. 13,99,320 (I.E., @ RS. 1,000 PER SQ. FT.), TO BE UTILIZED ON THE PROPOSED BUILDING AT THE SITE OF SB. THE SAME W ERE ACCORDINGLY LOADED TO THE BUILDING PLAN FOR PROPOSED CONSTRUCTION, DULY A PPROVED BY THE MUNICIPAL CORPORATION, MUMBAI ON 30.9.2006, WHICH PLAN ALSO F ORMED PART OF THE CONVEYANCE DEED DATED 28.7.2010 FURNISHED TO THE JO INT REGISTRAR, ANDHERI, MUMBAI (FOR REGISTRATION THEREOF). THERE WAS, HOWEV ER, NO MENTION OR REFERENCE TO THE TDRS (OR OF SALE/TRANSFER THEREOF) IN THE CO NVEYANCE DEED. RSB, WITH WHOM THE ASSESSING OFFICER (AO) THEREFORE COMMUNICA TED IN THE MATTER, WHILE ACKNOWLEDGING THE PURCHASE OF PROPERTY FROM THE ASS ESSEE VIDE CONVEYANCE DEED DATED 28.7.2010, DECLINED, I.E., ON ENQUIRY BY THE AO, TO HAVE PURCHASED ANY TDRS IN RESPECT OF THE SAID PROPERTY, I.E., PUR CHASED FROM THE ASSESSEE-FIRM. THE AO, ACCORDINGLY, DISALLOWED SAME . THE TDRS BEING A VALUABLE RIGHT, BEING ADMITTEDLY DIVESTED BY THE ASSESSEE AS ON 31.3.2010 , HE INFERRED THEIR SALE DURING THE YEAR, AT RS. 82.94 LAKHS, ON THE BASIS O F THE SALE RATE APPLICABLE TO A RESIDENTIAL BUILDING AT MANKHURD AREA, I.E., ONE OF THE TWO AREAS FROM WHICH THE TDRS AROSE. ALLOWING DEDUCTION FOR THE PURCHASE COS T OF TDRS (RS. 14.42 LACS), THE DIFFERENCE OF RS. 68.52 LAKHS WAS BROUGH T TO TAX. IN APPEAL, THE LD. CIT(A) CONFIRMED BOTH, THE DISALLOWANCE (FOR RS. 14 .42 LACS) AND THE ADDITION (FOR RS. 68.52 LACS). HE WAS FURTHER OF THE VIEW TH AT THE TENANTS WERE NOT A PARTY ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 4 TO THE CONVEYANCE DEED, WHICH WAS EXECUTED WITHOUT ANY REFERENCE TO THEM. THE PERIOD FOR THE CONSTRUCTION OF A BUILDING AT THE SI TE OF SEROVILLA FLATS EXPIRED IN JULY, 2009, AFTER WHICH THE ASSESSEE WAS TO PAY THE OCCUPANTS RS. 5,000 PER MONTH EACH. THERE WAS NOTHING IN THE CONVEYANCE DEE D TO SHOW THAT RSB ACKNOWLEDGED ITS LIABILITY TO THE TENANTS, I.E., O F HAVING ASSUMED THE LIABILITY TOWARD THE MONTHLY COMPENSATION. THERE WAS EQUALLY NOTHING TO SHOW THAT THE TENANTS WERE OBLIGED TO REFUND THE PURCHASER (RSB) THE SECURITY DEPOSIT RECEIVED FROM THE ASSESSEE (AT AN AGGREGATE OF RS. 54 LAKHS) . IN FACT, THE ASSESSEE HAD NOT RECEIVED BACK THE SECURITY DEPOSIT (OF RS. 54 LAKHS ) AS IT HAD FAILED TO COMPLY WITH THE TERMS OF THE CONSENT DECREE DATED 01/12/20 06. THE ASSESSEE WAS, THEREFORE, NOT ENTITLED TO THE DEDUCTION OF RS. 54 LAKHS IN COMPUTING THE BUSINESS INCOME ARISING TO IT ON THE SALE OF ITS R IGHTS IN THE LAND AND, ACCORDINGLY, DIRECTED THE AO TO DISALLOW THE SAME, WHICH IS THE THUS THIRD ISSUE BEING AGITATED PER THE INSTANT APPEAL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. WE SHALL PROCEED IN SERIATIM. 3.1 QUA THE FIRST DISALLOWANCE, I.E., OF THE COST OF TDRS (RS. 14.42 LACS), WE OBSERVE NO ADJUSTMENT TO THE ASSESSEES RETURNED IN COME IN THE ASSESSMENT ORDER, COMPUTING THE TAXABLE INCOME AT RS. 1,71,81, 040. NEITHER PARTY BROUGHT THIS TO OUR NOTICE. RATHER, BOTH THE PARTIES PROCEE DED ON THE BASIS OF THE SAID DISALLOWANCE HAVING BEEN MADE, WITH BOTH THE AO AND THE LD. CIT(A) HAVING IN FACT ISSUED SPECIFIC ADJUDICATION QUA THE SAME. WE, ACCORDINGLY, PROCEED ON THIS BASIS, AS, GIVEN THE FACT OF THE SAID SPECIFIC ADJU DICATION, WHICH IS THE SUBJECT MATTER OF DISPUTE BETWEEN THE PARTIES, AN ADJUSTMEN T IN ITS RESPECT, CONSISTENT WITH OUR ADJUDICATION, COULD ALWAYS BE MADE. THE AO SHALL THOUGH, NEEDLESS TO ADD, HAVE REGARD TO OUR AFORE-SAID OBSERVATION, I.E ., OF NO APPARENT ADJUSTMENT QUA THIS DISALLOWANCE HAVING BEEN MADE WHILE COMPUTING THE ASSESSEES INCOME ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 5 AS PER THE ASSESSMENT ORDER, I.E., WHILE GIVING APP EAL EFFECT TO THIS ORDER, ALSO SEEKING THE ASSESSEES COMMENTS/REPLY ON THE LIMITE D ASPECT OF THE ADJUSTMENT IN ITS RESPECT. THE ASSESSEES CLAIM BEFORE US WAS THAT IT WAS AN I NCORRECT QUESTION BY THE AO TO RSB THAT LED TO THE ANSWER GIVEN BY THE L ATTER THERETO, RESULTING IN AN INCORRECT INFERENCE BEING DRAWN BY HIM. WE, EVEN AS OBSERVED DURING HEARING, CAN HARDLY AGREE; THE RELEVANT QUERY AND ANSWER, RE PRODUCED HEREUNDER (REFER PG. 4 OF THE ASSESSMENT ORDER), BEING EXPLICITLY CL EAR: YOU HAVE PURCHASED A PROPERTY FROM M/S. DIAMOND PR OPERTIES VIDE DEED OF CONVEYANCE DATED 28-07- 2010. PLEASE CONFIRM. WITH RELATION TO THE ABOVE PROPERTY, YOU ARE HEREBY REQUESTED TO CONFIRM WHETHER YOU HAVE PURCHASED THE TDR (COPY ENCLOSED) OR NOT. IF YES, THEN PROVID E THE DOCUMENTARY EVIDENCES ESTABLISHING THE TRANSACTION, I.E., COPY OF ITR, BANK A/C STATEMENT REFLECTING THE TRANSACTION. RSB REPLIED THROUGH ITS COUNSEL, AS UNDER: OUR CLIENT, RSB DEVELOPERS PRIVATE LIMITED HAS PUR CHASED A PROPERTY FROM M/S. DIAMOND ENTERPRISES VIDE CONVEYANCE DEED DATED 28-07-2010. OUR CLIENT, RSB DEVELOPERS PRIVATE LIMITED HAS NOT PURCHASED ANY TDR IN RELATION TO THE ABOVE MENTIONED PROPERTY FROM M/S. DIAMOND ENTERPRISES. THE LD. COUNSEL FOR THE ASSESSEE, SH. SATHE, ALSO C OULD NOT, AS ALSO BEFORE THE LD. CIT(A) EARLIER, ANSWER AS TO WHY, IN CASE OF SALE O F TDRS EQUIVALENT TO 130 SQ. MTRS. TO RSB, AS CLAIMED, DOES IT NOT FIND MENTION IN THE CONVEYANCE DATED 28.7.2010, WHICH HAS RIGHTLY BEEN REGARDED BY THE LD. CIT(A) A S THE AGREEMENT GOVERNING THE TRANSACTION . FURTHER, EVEN GRANTING SO, WHAT, ONE MAY ASK, PREVENTED THE ASSESSEE FROM OBTAINING A CLARIFICATI ON IN RESPECT THEREOF FROM RSB, THE STATED PURCHASER OF TDRS. THE ASSESSEES C LAIM, MADE BEFORE US, OF NON-REVERSION OF FLOOR SPACE INDEX (FSI) CREDIT IN RESPECT OF TDRS, ONCE OBTAINED, MADE WITH REFERENCE TO THE APPROVED PLAN DATED 30.9.2006 FOR THE PROPOSED BUILDING AT THE RELEVANT SITE, IS ALSO WHO LLY UNSUBSTANTIATED. THERE IS EVEN NO REFERENCE TO ANY RULE/REGULATION OR EVEN PO LICY IN THIS REGARD. WHY, WE WONDER, THE FSI CREDIT, ON BEING UNABLE TO BE UTILI ZED QUA A PARTICULAR PROJECT (AT ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 6 A PARTICULAR PLACE), CANNOT BE, SIMILARLY, UTILIZED ON ANOTHER PROJECT AT ANOTHER SITE WHICH IS NORMALLY NORTH OF THE LAND FROM WH ICH TDRS AROSE, BEING AT MANKHURD AND DEONAR AREAS OF MUMBAI IN THE INSTANT CASE? SH. SATHE WAS UNABLE TO ANSWER THIS QUERY POSED BY THE BENCH DURI NG HEARING. WHY, AGAIN, IT COULD NOT BE SOLD, AS WAS PURCHASED (ON BEING SOLD BY SHAH CONSTRUCTION CO. (P.) LTD.) BY THE ASSESSEE ? IN FACT, SHAH CONSTRUCTION CO. HAD IN TURN PURCHA SED IT FROM M/S. REHAB HOUSING (P.) LTD. PURSUANT TO A SLUM REHABILITATION SCHEME OF THE MUNICIPAL CORPORATION OF GREATER MUMBAI. FUR THER, THE SAME WOULD REQUIRE EITHER AN ENDORSEMENT ON THE RELEVANT DEVEL OPMENT RIGHT CERTIFICATE (DRC), I.E., IN FAVOUR OF THE PURCHASER OF THE RIGH TS, OR AN ISSUE OF FRESH DRC IN ITS FAVOUR UPON TENDERING AND CANCELLATION OF THE O RIGINAL CERTIFICATE. WHY, AS IT APPEARS TO US, THE SAME (TRANSFER) ALSO ATTRACTS CH ARGES INASMUCH AS WHILE THE TDRS WERE PURCHASED BY THE ASSESSEE FOR RS.13,99,32 0, ITS COST TO THE ASSESSEE IS ADMITTEDLY AT RS. 14,41,900, THE IMPUGNED SUM. THAT IS, THEIR SALE TO RSB, WHERE SO, WOULD ALSO HAVE ATTRACTED TRANSFER CHARGE S, WHICH, AS APPARENT, HAVE NOT BEEN PAID BY RSB . THE ASSESSEES CLAIM OF HAVING ALREADY UTILIZED T HE FSI CREDIT, IS, AGAIN, A MISREPRESENTATION. INCLUDING I T WITHIN THE AREA PROPOSED TO BE CONSTRUCTED IS ONLY A, OR TOWARD ITS, PROPOSED UTIL IZATION, WHICH MAY OR MAY NOT MATERIALIZE IN FUTURE. IT IS ONLY ON ACTUAL CONSTRU CTION, AS PER THE APPROVED PLAN, THAT THERE WOULD BE AN ACTUAL UTILIZATION OF THE FS I CREDIT. THERE HAS ADMITTEDLY BEEN NO CONSTRUCTION BY THE ASSESSEE AT THE PROPOSE D SITE (I.E., THAT OF THE SB). FURTHER, AS AFORE-STATED, IT SHOULD ALWAYS BE PERMI SSIBLE FOR THE PURCHASER (AS THE ASSESSEE) TO, IN THE EVENT OF CHANGE, MAKE SUITABLE APPLICATION FOR REALLOCATION OF THE FSI CREDIT (AGAINST ANY OTHER ELIGIBLE PROJECT) . WHY SHOULD, ONE MAY ASK, WHEN THE TDRS ARE ALLOWED TO BE TRANSFERRED FROM ON E PERSON TO ANOTHER, SHOULD THEY BE RESTRICTED (FOR TRANSFER) FROM ONE S ITE TO ANOTHER, AS LONG AS IT IS AN ELIGIBLE SITE ? RATHER, THEIR NAME ITSELF CLARIFIES THE SAME TO B E TRANSFERABLE RIGHTS, BEING IN FACT THE VERY BASIS FOR THEIR ARIS ING AND ALLOCATION, I.E., TO REGULARIZE AND MONETIZE THE RIGHT TO DEVELOP REAL E STATE, AND AT THE SAME TIME ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 7 CAUSING ITS MOVEMENT/SHIFT FROM MORE CONGESTED (HIG H DENSITY) TO LESS CONGESTED AREAS. THE SAME, I.E., TRANSFER, MAY ENTA IL COST, INCLUDING TRANSFER CHARGES, BUT THAT IS ANOTHER MATTER/ASPECT ALTOGETH ER. WE, THEREFORE, FIND NO INFIRMITY IN THE DISALLOWANCE OF THE TDR COST IN CO MPUTING THE ASSESSEES (BUSINESS) INCOME; ITS CLAIM BEING WHOLLY UNSUBSTA NTIATED. 3.2 THE TDRS HAVING BEEN ADMITTEDLY SOLD, THE REVEN UE HAS ESTIMATED THEIR SALE VALUE, BRINGING IT TO TAX AFTER DEDUCTING ITS COST, AND WHICH REPRESENTS THE SECOND ISSUE IN THIS APPEAL. THE ASSESSEE REFUTES T HIS AS WITHOUT BASIS AND, IN ANY CASE, EXCESSIVE INASMUCH AS THE RATE APPLIED IS QUA A RESIDENTIAL BUILDING, WHILE THE TDR IS A RIGHT IN RESPECT OF LAND, SO AS TO INC REASE ITS DEVELOPMENT POTENTIAL TO THAT EXTENT. IN FACT, IF THE OBTAINING LAND RATE WAS TO BE APPLIED, IT SHALL RESULT IN A LOSS OF RS. 9,99,900; THE RATE FOR OPEN LAND A T MANKHURD AREA BEING RS. 3,400 PER SQ. MTR. (REFER PARA 6.4/PGS. 18-19 OF TH E IMPUGNED ORDER). IN OUR CONSIDERED OPINION NEITHER THE ASSESSEE NOR THE REVENUE HAS ADVANCED ITS CASE PROPERLY. SH. SATHE WOULD CLAIM BEFORE US THAT THE FSI CREDIT IS, ON THE RECORD OF THE MUNICIPAL CORPORATION WH ICH IS STATED TO BE THE AUTHORITY WHICH ALLOWS CREDIT (AGAINST DIFFERENT PR OJECTS AT DIFFERENT SITES), STILL LOADED ON TO THE PROPOSED PROJECT AT THE KOLE KALYA N SITE, AND WHICH WOULD EXHIBIT THAT THE SAME HAS NOT BEEN SOLD AS YET. TOW ARD THIS, AN APPROPRIATE CERTIFICATE FROM THE MUNICIPAL CORPORATION (OR THE AUTHORITY GRANTING AND REGISTERING PURCHASE/SALE OF TDRS), HE WOULD ADD, C OULD BE PRODUCED BY THE ASSESSEE TO SUBSTANTIATE ITS STAND. WONDER WHY IT WAS NOT DONE AT ANY STAGE, MORE SO CONSIDERING THAT THERE ARE SERIOUS FETTERS ON THE PRODUCTION OF ADDITIONAL EVIDENCE AT THE SECOND APPELLATE STAGE. WE MAY HERE ALSO CLARIFY THAT SUCH A CERTIFICATE, EVEN IF ADDUCED, WOULD NOT BY ITSELF P ROVE THE TRANSFER OF TDRS, AS CONTENDED, TO RSB, DENIED BY IT, AND WHICH ONLY WOU LD ENTITLE THE ASSESSEE TO CLAIM COST THEREOF ON TRANSFER OF ITS RIGHTS IN TH E SUBJECT LAND, THERETO. WHY, FOR ALL WE KNOW, RSB, HAVING SUFFICIENT TDRS OF ITS OW N, MAY NOT BE INTERESTED TO ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 8 PURCHASE THEM FROM THE ASSESSEE . IN FACT, RSB IS NOT BOUND TO CONSTRUCT THE BUILDING AS PER THE PLAN PROPOSED BY THE ASSESSEE. THE REVENUE HAS ALSO PROCEEDED WITHOUT ANY DEFINITE BASIS. SURE, THERE IS NOTHING TO SHOW OR EXHIBIT THE SALE OF TDRS TO RSB, FOR THE ASSESSEE TO CLAIM THE COST THEREOF, BUT THAT DOES NOT BY ITSELF DEMON STRATE THEIR SALE TO ANY OTHER PERSON. THE REVENUE SHOULD HAVE INSISTED ON THE ASS ESSEE PRODUCING SOME AUTHENTIC DOCUMENT/MATERIAL WITH REGARD TO THE OBTA INING STATUS OF THOSE RIGHTS, WHICH COULD THEN BE VERIFIED, BEFORE IMPUTING THEIR SALE BY THE ASSESSEE DURING THE RELEVANT YEAR. WHY, IT COULD ITSELF MAKE ENQUIR Y WITH THE REGISTERING AUTHORITY. NON-REFLECTION OF THE SAID TDRS IN THE A SSESSEES BALANCE-SHEET (AS ON 31.3.2010), ON WHICH IT RELIES FOR THE PURPOSE, IS OF LITTLE CONSEQUENCE IN VIEW OF THE ADMITTED POSITION OF THE ASSESSEE HAVING CHARGE D THEIR COST TO THE P&L ACCOUNT FOR THE YEAR, CLAIMING IT AS A DEDUCTIBLE E XPENSE. THE MATTER, THEREFORE, IS INDETERMINATE, AND IS ACC ORDINGLY RESTORED BACK TO THE FILE OF THE AO FOR CONSIDERATION AFRESH. THE MATTER BEING OLD, HE SHALL DECIDE THE SAME WITHIN A REASONABLE TIME, EVEN AS A LONGER TIME MAY BE AVAILABLE TO HIM UNDER THE SUBSTITUTED SEC. 153, AN D AFTER ALLOWING FAIR OPPORTUNITY OF HEARING TO THE ASSESSEE, INCLUDING F OR MEETING THE EVIDENCE THAT THE AO MAY GATHER IN SUPPORT OF HIS CLAIM/S. AS REG ARDS VALUATION, I.E., WHERE HELD TO BE A CASE OF SALE, VALUATION OF TDRS SHALL BE WITH REFERENCE TO THE RATE OF OPEN LAND, AND NOT OF RESIDENTIAL BUILDING, INASMUC H AS THESE ARE DEVELOPMENT RIGHTS OF LAND. THE LAND LOCATION, IN CASE OF ESTIM ATION, SHALL NOT BE, AS ALSO OBSERVED DURING HEARING, WHERE THE TDRS AROSE, BUT WHERE THESE ARE (OR WOULD BE) UTILIZED AND, FURTHER, WITH REFERENCE TO A LAND WITH SIMILAR DEVELOPMENT POTENTIAL THEREIN. THIS IS AS ONLY LIKE CAN BE COMP ARED WITH LIKE. FURTHER, THE ISSUE OF DEDUCTION OF THE TDR COST (RS . 14.42 LACS), I.E., THE FIRST ISSUE, BEING INTER-RELATED, WE CONSIDER IT PR OPER TO REMIT THE SAME ALONG WITH. WE MAY THOUGH MAKE IT CLEAR THAT IT IS NOT TH AT WE ENTERTAIN ANY DOUBT QUA THE DISALLOWANCE OF TDR COST (RS. 14.42 LAKHS) ON T HE BASIS OF THE MATERIAL ON ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 9 RECORD AS NOT VALID. THE REMISSION IN ITS RESPECT I S ONLY BY WAY OF AN ABUNDANT CAUTION SO AS TO AVOID ANY POSSIBLE CONTRADICTION A ND, THUS, ANY PREJUDICE OR INJUSTICE IN VIEW OF OUR REMISSION QUA A RELATED ASPECT. THE ONUS TO SUBSTANTIATE ITS CASE, NEEDLESS TO ADD, WOULD THOUGH BE ON THE ASSESSEE. 3.3 ISSUES ONE AND TWO ARE ACCORDINGLY DECIDED IN T ERMS OF PARAS 3.1 AND 3.2. 3.4.1 WE NEXT CONSIDER THE THIRD ISSUE, I.E., OF TH E DISALLOWANCE OF THE REFUNDABLE SECURITY DEPOSIT OF RS. 54 LAKHS IN COMP UTING THE ASSESSEES BUSINESS INCOME FOR THE YEAR. THE BASIS OF THE REVENUES CAS E IN THIS REGARD, AS WE SEE IT, IS THAT THE CONSENT DECREE DATED 01.12.2006 IS NO L ONGER IN FORCE, I.E., NEITHER IS THE ASSESSEE OBLIGED TO CONSTRUCT NEW FLATS NOR, CO NSEQUENTLY, THE TENANTS LIABLE TO REFUND IT THE SECURITY DEPOSIT, WHICH COULD IN F ACT ONLY BE LATEST BY JULY, 2009. THE ASSESSEE IS ALSO NOT PAYING THEM THE MONTHLY CO MPENSATION, AS OBLIGED TO AFTER THE EXPIRY OF THE CONSTRUCTION PERIOD, WHICH WAS TO BE LATEST BY 30.7.2009. THAT BEING THE CASE, HOW COULD THE ASSESSEE, IN JUL Y, 2010 THE CONVEYANCE DEED BEING DATED 28.7.2010, OR EVEN IN MARCH, 2010 (BY WHICH TIME THE FULL CONSIDERATION STANDS RECEIVED BY THE ASSESSEE), TRA NSFER THE OBLIGATION TO PROVIDE PERMANENT ALTERNATE ACCOMMODATION FREE-OF-COST TO T HE TENANTS, FOR IT TO CLAIM NON-REFUND OF THE SECURITY DEPOSIT BY THEM AS A LOS S IN COMPUTING ITS BUSINESS INCOME? SURE, THE SAME HAS BEEN FORFEITED BY THE TE NANTS, SO THAT THE ASSESSEE HAS INDEED SUFFERED A LOSS TO THAT EXTENT, BUT THE SAME IS, UNDER THE CIRCUMSTANCES, A CAPITAL LOSS. EVEN IF REGARDED AS A REVENUE LOSS, IT SHALL BE OF THE YEAR OF PAYMENT, I.E., AY 2007-08 (GOING BY THE SPECIMEN CONSENT DECREE EXHIBITING PAYMENT IN JANUARY, 2007). FINALLY, EVEN IF, GOING BY THE DIFFERENT CLAUSES OF THE CONVEYANCE DEED, WHEREBY THE PURCHAS ER (RSB) AGREES TO PROVIDE PERMANENT ACCOMMODATION TO THE TENANTS, THE SAME CO ULD BE SET OFF AS COST IN THE SUBSEQUENT YEAR, I.E., AY 2011-12, INASMUCH AS THE CONTRACT IN ITS RESPECT COMES INTO EFFECT ONLY ON 28.7.2010. (REFER PAGES 2 7-29 OF THE IMPUGNED ORDER) ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 10 3.4.2 WE HAVE GIVEN OUR CAREFUL CONSIDERATION TO TH E MATTER. THE ASSESSEES CASE IS THAT IT HAVING TRANSFERRED THE OBLIGATION T O CONSTRUCT AND PROVIDE PERMANENT ALTERNATE ACCOMMODATION TO THE TENANTS, A S WELL AS, THEREFORE, THE RIGHT TO RECEIVE THE REFUND (OF SECURITY DEPOSIT) T HERE-FROM, TO RSB, THE SAID AMOUNT GETS FACTORED INTO THE CONSIDERATION (RS. 17 5 LAKHS) RECEIVED; THE CONVEYANCE DEED CLEARLY MENTIONING OF THE SAME BEIN G INCLUSIVE OF RS. 54 LAKHS RECEIVABLE FROM THE TENANTS. IN OTHER WORDS, THE A MOUNT RECEIVED, NET OF RS. 54 LAKHS RECOVERABLE FROM THE TENANTS, IS ONLY RS. 121 LACS, WHICH THEREFORE HAS BEEN OFFERED TO TAX. LOOKED AT FROM THE ANOTHER ANG LE/STAND-POINT, THE AMOUNT OF RS. 54 LAKHS, NOW NO LONGER RECEIVABLE, I.E., CONSE QUENT TO THE CONVEYANCE DEED WITH RSB, IS A COST BORNE BY THE ASSESSEE TOWARD TH E TRANSFER OF ITS RIGHTS IN 1517.4 SQ. MTRS. OF KOLE KALYAN LAND THERETO AND, T HUS, ACCORDINGLY, DEDUCTIBLE IN COMPUTING THE INCOME ARISING TO IT ON THE SAID T RANSFER. THE ARGUMENT IS UNEXCEPTIONAL. SO, HOWEVER, IT DOES NOT ADDRESS THE CONCERNS EXPRESSED BY THE REVENUE, WHICH FORMS THE BASIS OF THE DIRECTION FOR DISALLOWANCE OF THE SAID SUM BY THE LD. CIT(A), DISCUSSED AS FOLLOWS. TAKING A PRACTICAL STANCE, THE CONSENT DECREE IS NO LONGER OPERATIVE IN JULY, 2010, WHEN THE CONVEYANCE DEED WAS EXECUTED, OR EVEN IN MARCH, 2010, WHICH SIGNIFIES THE RECEIPT OF THE SALE CONSIDERATI ON OF RS. 175 LAKHS FROM RSB. THAT IS, THE ASSESSEE HAD, BY NOT FULFILLING THE CO NSENT TERMS, ALREADY SUFFERED A LOSS OF RS. 54 LACS , I.E., PRIOR TO AND INDEPENDENT OF THE TRANSACTION /AGREEMENT WITH RSB. PUT DIFFERENTLY, EVEN IN THE ABSENCE OF AN AGREEMENT WITH RSB, AS WHERE IT HAD NOT OCCURRED, THE ASSESSEE HAD LOST TH E RIGHT TO THE REFUND FROM THE TENANTS AND, CONSEQUENTLY, THE OBLIGATION TO PROVID E THEM ALTERNATE ACCOMMODATION, WHICH WAS THEREFORE NO MORE THAN A P APER OBLIGATION, AGAINST (OR IN LIEU OF) WHICH THE ASSESSEE IS CLAIMING THE IMPUGNED LOSS. TRUE, AS STATED, THERE WAS A REMOTE POSSIBILITY OF THE TENANTS, WHO WERE ALSO NOT BEING PAID THE MONTHLY COMPENSATION PAYABLE LATEST SINCE AUGUST, 2009, BY THE ASSESSEE, SEEKING THE COURTS INTERVENTION FOR CONSTRUCTION, WHICH WAS IN FACT TO ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 11 COMMENCE IN FEBRUARY/MARCH, 2007, AND WHICH HAD ADM ITTEDLY NOT BEEN SO EVEN IN JULY, 2010, WHEN THE CONVEYANCE DEED WITH R SB WAS EXECUTED. THE TENANTS MAY NOT HAVE APPROACHED THE COURT AS THEY H AD ALREADY RECEIVED THE TENTATIVE COST OF THEIR RIGHT IN THE FORM OF AN INT EREST-FREE DEPOSIT, WHICH WOULD ALSO BE REQUIRED TO BE, IN THAT CASE, REPAID. NOBOD Y COULD BE EXPECTED TO WAIT ENDLESSLY FOR AN ACCOMMODATION, WHICH WOULD HAVE BE EN SECURED BY THEM. AT THE SAME TIME, IT CANNOT BE SAID THAT THE ASSESSEE S OBLIGATION TO THEM HAD EXTINGUISHED, OR WAS ONLY NOTIONAL. THE ASSESSEES RIGHTS IN THE LAND WERE ENCUMBERED INASMUCH AS THE TENANTS HAD FIRST RIGHT TO ANY CONSTRUCTION AT THE SAID SITE, WHETHER BY DEMOLISHING THE EXISTING STRU CTURE OR OTHERWISE. RATHER, THEY COULD EVEN CLAIM A SET-OFF OF THEIR LIABILITY TO REPAY RS. 4.5 LAKHS TO THE ASSESSEE (BUILDER) AGAINST THE MONTHLY COMPENSATION , WHICH WOULD GET SQUARED UP IN 90 MONTHS (SEVEN-AND-A-HALF YEARS), WHILE THE RE WAS NO PROVISION FOR INTEREST ON THE SECURITY DEPOSIT AFTER JANUARY/JULY , 2009 IN THE CONSENT DECREE. A TENANT APPROACHING THE ASSESSEE (OR ANY OTHER BUILD ER IN ITS PLACE, AS RSB) FOR ACCOMMODATION IN THE CONSTRUCTION, IF ANY, AT THE S ITE WOULD, THUS, SUBJECT TO THE REPAYMENT OF THE SECURITY DEPOSIT, OR WHATEVER WAS LEFT OF IT, OBLIGED TO SO PROVIDE. IN OTHER WORDS, THE SAME CANNOT BE OVERLOO KED OR DISMISSED AS NON- EXISTENT. IN FACT, THE RISING COST OF CONSTRUCTION OVER TIME WHILE THE OBLIGATION OF REPAYMENT IS FIXED AT RS. 4.50 LACS, MAKES IT A DISTINCT POSSIBILITY, WHICH MAY PRACTICALLY TRANSLATE INTO A TENANT BEING PAID AN A GREED MONETARY COMPENSATION, I.E., IN LIEU OF ACCOMMODATION. THAT IS, REPRESENTS A REAL POSSIBILITY/OBLIGATION AND, THUS, STANDS RIGHTLY PROVIDED FOR IN THE CONVE YANCE DEED, TOGETHER WITH THE LIABILITY TOWARD MONTHLY COMPENSATION. IT CANNOT, A CCORDINGLY, BE REGARDED AS A MAKE-BELIEVE, AS DONE BY THE LD. CIT(A). HIS OTHER OBJECTIONS TO BE NON- ADMISSIBILITY OF THE CLAIM OF RS. 54 LAKHS BY THE A SSESSEE ARE, EQUALLY, NOT WELL FOUNDED. THE ASSESSEE HAS DISPOSED ITS RIGHTS IN LAND, ENCUMBERED BY THE OBLIGATION TO RE-COMPENSE THE DISPLACED OCCUPANTS/ TENANTS, SO THAT THE COST SUFFERED TOWARD THE SAME, BY WAY OF ITS FORFEITURE OR TRANSFER OF THE RIGHT TO ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 12 RECEIVE IN FAVOUR OF THE PURCHASER, WHICHEVER WAY O NE MAY LOOK AT THE TRANSACTION, IS AN ASSOCIATED COST, INTEGRAL TO THE SAID TRANSFER. IT CANNOT, THEREFORE, BE REGARDED AS THE CAPITAL COST. THE THI RD OBJECTION IS OF THE SAME ARISING IN THE FOLLOWING YEAR. IN FACT, THIS IS IN CONTRADICTION OF THE CLAIM OF THE LOSS HAVING ALREADY ARISEN, I.E., INDEPENDENT OF, A ND PRIOR TO, THE TRANSACTION OF TRANSFER IN MARCH/JULY, 2010. THAT APART, WHEN THE INCOME ARISING FROM THE TRANSFER IS BEING SUBJECT TO TAX FOR AY 2010-11, HO W COULD A RELATED COST POSSIBLY ARISE FOR BEING CLAIMED/ALLOWED IN A SUBSE QUENT YEAR ? THE SAME MILITATES AGAINST THE CONCEPT OF INCOME (OR INCOME COMPUTATION), WHICH IS (TO BE) AT NET OF ALL EXPENDITURE INCURRED IN RELATION THERETO. REFERENCE TO THE DECISION IN CALCUTTA CO. LTD. VS. CIT [1959] 37 ITR 1 (SC) MAY BE APPOSITE HERE. THE INCOME ARISING TO THE ASSESSEE-DEVELOPER WAS ASSESSED WITHOUT ALLOWING DEVELOPMENT EXPENSES TO BE INCURRED QUA THE RELEVANT PROJECT IN FUTURE, ON THE GROUND THAT THE SAME HAD NOT BEEN INCURRED/ ACCRUED. THE APEX COURT CLARIFIED THAT WHEN THE INCOME HAD ARISEN, THE CORR ESPONDING EXPENDITURE, EVEN IF IS TO BE INCURRED SUBSEQUENTLY, IS TO BE ALLOWED THERE-AGAINST, MAKING A BEST POSSIBLE ESTIMATE THEREOF. THIS WOULD ALSO EXPLAIN THE BASIS FOR BRINGING THE INCOME ARISING ON THE TRANSFER TO TAX FOR THE CURRE NT YEAR IN THE INSTANT CASE. THE ASSESSEE HAVING RECEIVED THE CONSIDERATION IN TOTO (RS. 175 LAKHS) BY MARCH, 2010, ON ITS OWN ACCOUNT, AND WITH NO FURTHER OBLI GATION TO INCUR IN ITS RESPECT, THE INCOME IN RESPECT OF THE TRANSFER CAN ONLY BE R EGARDED AS HAVING ARISEN. SECTION 5 OF THE ACT IN ANY CASE MAKES IT CLEAR THA T INCOME CAN BE BROUGHT TO TAX EITHER IN THE YEAR OF ITS RECEIPT OR ITS ACCRUAL. T HE OBJECTIONS BY THE LD. CIT(A) TO THE DISALLOWANCE OF THE COST OF RS. 54 LAKHS ARE, T HEREFORE, NOT VALID. 3.4.3 THE DISALLOWANCE IS ACCORDINGLY, I.E., IN VIE W OF THE DISCUSSION AT PARAS 3.4.1 & 3.4.2 ABOVE, DIRECTED TO BE DELETED. WE DEC IDE ACCORDINGLY. ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 13 4. THIS APPEAL WAS HEARD ON 25/02/2020. AS PER RUL E 34(5) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 (ITAT RULES), THE ORDER IS REQUIRED TO BE ORDINARILY PRONOUNCED WITHIN A PERIOD OF 90 DAYS FROM THE DATE OF CONCLUSION OF THE HEARING OF APPEAL. THE INSTANT APPEAL WAS HE ARD PRIOR TO THE LOCKDOWN DECLARED BY THE HONBLE PRIME MINISTER ON 24-03-202 0 IN VIEW OF COVID-19 PANDEMIC. THE LOCKDOWN WAS FORCED DUE TO EXTRA ORDI NARY CIRCUMSTANCES CAUSED BY WORLD WIDE SPREAD OF COVID-19. THEREAFTER, THE L OCKDOWN IS BEING EXTENDED FROM TIME TO TIME. THEREFORE, THE PRONOUN CEMENT OF ORDER BEYOND A PERIOD OF 90 DAYS FROM THE DATE OF HEARING IS IN TH E INSTANT CASE NOT UNDER ORDINARY CIRCUMSTANCES. THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. JSW LTD . (IN ITA NO.6264/MUM/2018 FOR A.Y 2013-14), DECIDE D ON 14/05/2020, UNDER IDENTICAL CIRCUMSTANCES, AFTER CO NSIDERING THE PROVISION OF RULE 34(5) OF THE ITAT RULES, 1963, JUDGEMENTS REND ERED BY THE HONBLE APEX COURT AND THE HONBLE BOMBAY HIGH COURT ON THE ISSU E OF TIME LIMIT FOR PRONOUNCEMENT OF ORDERS BY THE TRIBUNAL, AS WELL TH E FACTUAL CIRCUMSTANCES LEADING TO LOCKDOWN, HELD AS UNDER:- 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, DISREGARDIN G 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 WHI CH THE LOCKDOWN WAS IN FORCE. WE MUST FACTOR GROUND REALITIES IN MIND W HILE INTERPRETING THE TIME LIMIT FOR THE PRONOUNCEMENT OF THE ORDER. LAW IS NOT BROODING OMNIPOTENCE IN THE SKY. IT IS A PRAGMATIC TOOL OF T HE SOCIAL ORDER. THE TENETS OF LAW BEING ENACTED ON THE BASIS OF PRAGMAT ISM, AND THAT IS HOW THE LAW IS REQUIRED TO BE INTERPRETED. THE INTERPRE TATION SO ASSIGNED BY US IS NOT ONLY IN CONSONANCE WITH THE LETTER AND SPIRI T OF RULE 34(5), BUT IS ALSO A PRAGMATIC APPROACH AT A TIME WHEN A DISASTER , NOTIFIED UNDER THE DISASTER MANAGEMENT ACT 2005, IS CAUSING UNPRECEDEN TED DISRUPTION IN THE FUNCTIONING OF OUR JUSTICE DELIVERY SYSTEM. UND OUBTEDLY, IN THE CASE OF OTTERS CLUB V. 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 IN THE PRESENT SITUATIO N HONBLE BOMBAY HIGH COURT ITSELF HAS, VIDE JUDGMENT DATED 15TH APRIL 20 20, HELD THAT WHILE CALCULATING THE TIME FOR DISPOSAL OF MATTERS MADE T IME-BOUND BY THIS ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 14 COURT, THE PERIOD FOR WHICH THE ORDER DATED 26TH MA RCH 2020 CONTINUES TO OPERATE SHALL BE ADDED AND TIME SHALL STAND EXTE NDED ACCORDINGLY . THE EXTRAORDINARY STEPS TAKEN SUO MOTU BY THE HONBLE JURISDICTIONAL HIGH COURT AND HONBLE SUPREME COURT ALSO INDICATE THAT THIS PERIOD OF LOCKDOWN CANNOT BE TREATED AS AN ORDINARY PERIOD DU RING WHICH THE NORMAL TIME LIMITS ARE TO REMAIN IN FORCE. IN OUR C ONSIDERED 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 EX CEPTION, TO 90-DAY TIME-LIMIT FOR PRONOUNCEMENT OF ORDERS, INHERENT IN RULE 34(5)(C), WITH RESPECT TO THE PRONOUNCEMENT OF ORDERS WITHIN NINET Y 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 THE CONSIDERABLE TIME LAG BETWEEN THE POINT OF TIME WHEN THE HEARING IS CONCLUDED AND THE POINT OF TIME WHEN THE ORDER THEREON IS BEING FINALIZED, BUT THEN, IN OUR CONSID ERED VIEW, NO SUCH EXERCISE WAS REQUIRED TO BE CARRIED OUT ON THE FACT S OF THIS CASE. HEARING IN THE INSTANT CASE WAS CONCLUDED ON 25/2/2 020 AND THE NOTES, AFTER STUDY OF THE FILE, MADE SOON THEREAFTER, FOLLOWED B Y DICTATION. IT IS ONLY DUE TO LACK OF PROPER SUPPORT SERVICES DUE TO LOCKDOWN THA T THE FINAL ORDER COULD NOT BE RELEASED. THIS IS ACCORDINGLY, IN VIEW OF THE GIVEN FACTUAL AND LEGAL POSITION, A FIT CASE FOR PRONOUNCEMENT OF ORDER BEYOND 90 DAYS OF HEARING. 5. IN THE RESULT, THE ASSESSEES APPEAL IS PARTLY A LLOWED AND PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED UNDER RULE 34(4) OF THE ITAT RULES ON 27 TH DAY OF JULY, 2020 BY PLACING THE DETAILS ON THE NOTICE BOARD SD/- SD/- (VIKAS AWASTHY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 27.07.2020 KRK, PS ITA NO. 2852/MUM/2015 (AY 2010-11) DIAMOND ENTERPRISES V. ASST. CIT 15 COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CONCERNED CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE / BY ORDER, //TRUE COPY// / ( ASST. REGISTRAR) / ITAT, MUMBAI DATE INITIAL 1. DRAFT DICTATED ON 25/26.02.2020 PS 2. DRAFT PLACED BEFORE AUTHOR 27.02.2020 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER PS 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. PS 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO THE BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER 11. DICTATION PAD IS ENCLOSED