NATASHA MELWANI, MUMBAI V. ITO 19(2)(4), MUMBAI

ITA 443/MUM/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8384 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 20-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K JAIN; KAVITA KAUSHIK ITA NO MUM
• Assessee Lawyers: JEHANGIR D MISTRI
• Keywords: Additional evidence; Benefit of exemption; Revised return; Capital Gains
• Section: 143(3); 143(1); 54EC; 48; 13

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI , ,# $ BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI RAJESH KUMAR, ACCOUNTANT MEMBER . 1067 / /201 7 (+. . 2012-13 ) ITA NO.1067/MUM/2017 (A.Y. 2012-13) NAVZER J. IRANI, 142, ASHOKA APARTMENTS, 68, NEPEAN SEA ROAD, MUMBAI 400 006 PAN: AAAPI0625H ...... - / APPELLANT + VS. INCOME TAX OFFICER 19(2)(4), 2 ND FLOOR, MATRU MANDIR, OPP. BHATIA HOSPITAL, TARDEO, MUMBAI 400 034 ..... ./ / RESPONDENT . 443 / /201 7 (+. . 2012-13 ) ITA NO.443/MUM/2017 (A.Y.2012-13) NATASHA MELWANI, 142, ASHOKA APARTMENTS, 68, NEPEAN SEA ROAD, MUMBAI 400 006 PAN: AAAPI5937J ...... - / APPELLANT + VS. INCOME TAX OFFICER 19(2)(4), 2 ND FLOOR, MATRU MANDIR, OPP. BHATIA HOSPITAL, TARDEO, MUMBAI 400 034 ..... ./ / RESPONDENT -0/ APPELLANT BY : SHRI JEHANGIR D. MISTRI, SR.ADVOCATE ./0/ RESPONDENT BY : SHRI S.K. JAIN & MS. KAVITA KAUSHIK 2 ITA NO.1067/MUM/2017(A.Y. 2012-13) ITA NO.443/MUM/2017(A.Y.2012-13) +1/ / DATE OF HEARING : 03/01/2020 234 1/ / DATE OF PRONOUNCEMENT : 05/06/2020 / ORDER PER VIKAS AWASTHY, JM : THESE TWO APPEALS BY TWO ASSESSEES (RELATED TO EAC H OTHER) FOR ASSESSMENT YEAR 2012-13 EMANATES FROM SAME TRANSAC TION OF SALE OF LAND AND HAVE IDENTICAL FACTS, THEREFORE, THESE APPEALS ARE TAKEN UP TOGETHER FOR ADJUDICATION AND ARE DECIDED BY THIS COMMON ORD ER. 2. FOR THE SAKE OF CONVENIENCE, THE FACTS ARE NARRA TED FROM ITA NO.1067/MUM/2017. THIS APPEAL BY THE ASSESSE/APPELL ANT IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS)-30 (IN SHORT THE CIT (A)) DATED 30/11/2016 FOR ASSESSMENT YEAR 2012-13. 3. THE ASSESSE/APPELLANT IS AN ARCHITECT AND INTERI OR DESIGNER. THE ASSESSEE HAD SHARE IN RESIDENTIAL BUNGALOW AND LAND APPURTENANT THERE TO SITUATED AT VILLAGE AWAS, TEHSIL ALIBAG. THE AFORE SAID PROPERTY WAS JOINTLY SOLD BY ALL THE FOUR CO-OWNERS VIDE REGISTERED SALE DEED DATED 28-12-2011. THE ASSESSE IN HIS ORIGINAL RETURN OF INCOME DECLAR ED HIS SHARE OF INCOME FROM SALE OF AFORESAID PROPERTY AS LONG TERM CAPITA L GAIN. THEREAFTER, THE ASSESSEE FILED REVISED RETURN OF INCOME AND CLAIMED EXEMPTION ON SALE PROCEEDS OF LAND, CLAIMING IT TO BE AGRICULTURAL LA ND. IN SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER REJECTED ASSESSE ES CLAIM OF EXEMPTION ON PROCEEDS FROM SALE OF LAND AND HELD THE SAME AS TAXABLE UNDER THE HEAD CAPITAL GAINS. AGGRIEVED AGAINST THE ASSESSM ENT ORDER DATED 3 ITA NO.1067/MUM/2017(A.Y. 2012-13) ITA NO.443/MUM/2017(A.Y.2012-13) 27/03/2015 PASSED UNDER SECTION 143(3) OF THE INCOM E TAX ACT, 1961 (IN SHORT THE ACT). THE ASSESSEE FILED APPEAL BEFORE THE CIT (A). THE CIT (A) CONFIRMED THE FINDINGS OF ASSESSING OFFICER IN HOLD ING GAIN ON SALE OF LAND AS LONG TERM CAPITAL GAIN. HOWEVER, THE CIT (A) G RANTED BENEFIT OF EXEMPTION UNDER SECTION 54EC OF THE ACT TO THE EXTE NT INVESTMENT WAS MADE BY THE ASSESSEE IN NHAI BONDS. STILL AGGRIEVE D, AGAINST THE ORDER OF FIRST APPELLATE AUTHORITY, THE ASSESSEE IS IN APPEA L BEFORE THE TRIBUNAL. 4. SHRI JEHANGIR D. MISTRI, SR. ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE ALONG WITH THR EE OTHER CO-OWNERS VIZ. MS. NATASHA NAVZER IRANI, SMT. SANOBER N. IRAN I AND SHRI KARL NAVZER IRANI ENTERED INTO AGREEMENT FOR SALE OF AGRICULTUR AL LAND ALONG WITH STRUCTURE/BUILDING THEREON SITUATED AT VILLAGE: AWA S; GRAM:PANCHAYAT :ZIRAD; TALUK: ALIBAG DIST. RAIGARH, MAHARASHTRA ON 28/12/2011 FOR A TOTAL CONSIDERATION OF RS.4,90,00,000/-. AS PER MUTUALLY AGREED TERMS AND CONDITIONS, THE TOTAL CONSIDERATION TOWARDS SALE OF AGRICULTURAL LAND WAS FIXED AT RS.3,00,00,000/- AND TOWARDS STRUCTURE/BUI LDING RS.1,90,00,000/-. ADMITTEDLY, THE ASSESSEE IN ORIGINAL RETURN OF INCO ME FOR ASSESSMENT YEAR 2012-13 OFFERED HIS SHARE FROM SALE OF AFORESAID PR OPERTY AS LONG TERM CAPITAL GAIN. SUBSEQUENTLY, THE ASSESSEE FILED REV ISED RETURN OF INCOME WHEREIN THE SHARE IN STRUCTURE/BUILDING WAS OFFERED AS LONG TERM CAPITAL GAIN. WHEREAS, EXEMPTION WAS CLAIMED ON SHARE IN CO NSIDERATION RECEIVED FOR SALE OF AGRICULTURAL LAND. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE FURNISHED VARIOUS DOCUMENTS BEFOR E THE ASSESSING OFFICER TO SUBSTANTIATE THAT THE LAND SOLD WAS AGRI CULTURAL LAND, SITUATED BEYOND 13 KMS FROM THE NEAREST MUNICIPAL LIMITS OF ALIBAG AND THE 4 ITA NO.1067/MUM/2017(A.Y. 2012-13) ITA NO.443/MUM/2017(A.Y.2012-13) POPULATION OF VILLAGE AWAS, WHERE AGRICULTURAL LAND WAS SITUATED IS LESS THAN 10,000 AS ON 11/11/2014. THE LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE CERTIFICATE ISSUED BY TAHSILDAR, ALIBAG AT P AGE -7 (TRANSLATED COPY AT PAGE -6) OF THE PAPER BOOK. THE LD. COUNSEL FURTHE R REFERRED TO FORM -7,7A ANNEXED TO REGISTERED SALE DEED TO SHOW THAT THE LA ND IN QUESTION IS AN AGRICULTURAL LAND AND RICE WAS CULTIVATED ON THE LA ND. TO FURTHER SUBSTANTIATE NATURE OF LAND, THE ASSESSEE FILED COP IES OF 7/12 EXTRACTS AS ADDITIONAL EVIDENCE. THE LD. COUNSEL FOR THE ASSESS EE ASSERTED THAT ADDITIONAL EVIDENCES HAVE BEEN FILED TO COUNTER THE REASONING GIVEN BY THE ASSESSING OFFICER TO REJECT CLAIM THAT NO AGRIC ULTURAL ACTIVITIES WERE CARRIED OUT ON THE LAND. 4.1. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THA T THE DETAILS OF THE LAND ARE GIVEN IN FIRST SCHEDULE TO THE REGISTERED SALE DEED AT PAGE 47 AND 48 OF THE PAPER BOOK. THE TOTAL AREA OF THE BUNGAL OW THAT WAS SOLD ALONGWITH THE LAND IS APPROXIMATELY 8000 SQ.FT. THE AREA OF THE BUNGALOW INCLUDES MAIN BUILDING, CABANA STRUCTURE, PARKING S TRUCTURE, SERVANT QUARTERS AND SWIMMING POOL. THE TOTAL AREA OF AGRIC ULTURE LAND COMPRISING IN GUT NUMBERS 364, 363, 366 AND 365 IS 1.33 ACRES. A PERUSAL OF 7/12 EXTRACTS WOULD SHOW THAT RICE WAS CULTIVATED ON THE LAND IN QUESTION SINCE LONG INCLUDING THE PERIOD IN WHICH LAND WAS SOLD. 4.2 THE LD. COUNSEL OF THE ASSESSEE FURTHER CONTEND ED THAT IN THE CASE OF OTHER TWO CO-OWNERS I.E. SMT. SANOBER N. IRANI AND SHRI KARL NAVZER IRANI THE DEPARTMENT HAS ACCEPTED THAT THE LAND IS AGRICULTURE LAND AND THE GAIN ARISING FROM SALE OF SAID LAND IS EXEMPT F ROM TAX. THE LD. COUNSEL FOR THE ASSESSEE FURNISHED COPIES OF INCOME TAX RET URNS OF THE AFORESAID 5 ITA NO.1067/MUM/2017(A.Y. 2012-13) ITA NO.443/MUM/2017(A.Y.2012-13) CO-OWNERS AND INTIMATION OF ASSESSMENT UNDER SECTIO N 143(1) OF THE ACT. THE LD. COUNSEL OF THE ASSESSEE POINTED THAT THE FA CT THAT THE PROPERTY INCLUDING BUNGALOW AND AGRICULTURAL LAND IS JOINTLY OWNED BY FOUR PERSONS WAS VERY MUCH IN THE KNOWLEDGE OF THE FIRST APPELLA TE AUTHORITY. THE ASSESSEE IN WRITTEN SUBMISSION MADE BEFORE THE CIT (A) HAD HIGHLIGHTED THIS FACT, HOWEVER, THE CIT (A) FAILED TO TAKE NOTE OF THIS VITAL FACT. 4.3. THE LD. COUNSEL OF THE ASSESSEE FINALLY ASSERT ED THAT THERE IS NO EVIDENCE ON RECORD TO SHOW THAT THERE WAS CONVERSIO N OF LAND FOR NON- AGRICULTURE PURPOSE, THEREFORE, IT IS IMMATERIAL T HAT ANY INCOME FROM AGRICULTURE IS DECLARED BY THE ASSESSE IN HIS RETUR N OR NOT. TO SUPPORT HIS CONTENTIONS, THE LD. COUNSEL PLACED RELIANCE ON THE FOLLOWING DECISIONS:- (I) CIT VS. DEBBIE ALEMAO , 331 ITR 59 (BOM) (II) KALLEPU SHARATH VS. ACIT, IN ITA NO.843/HYD./ 2017 FOR A.Y 2005-06, DECIDED ON 30/05/2018 5. ON THE OTHER HAND, SHRI S.K. JAIN, REPRESENTING THE DEPARTMENT VEHEMENTLY SUPPORTED THE FINDINGS OF CIT (A) AND PR AYED FOR DISMISSING THE APPEAL OF THE ASSESSEE. THE LD. DEPARTMENTAL RE PRESENTATIVE SUBMITTED THAT THE ASSESSEE HAS BIFURCATED LAND FRO M THE BUILDING AND OFFERED THE BUNGALOW TO TAX. THE PROVISIONS OF SECT ION 10(37) DOES NOT ALLOW BIFURCATION OF LAND FOR CLAIMING EXEMPTION. T HE LD. DEPARTMENTAL REPRESENTATIVE FURTHER CONTENDED THAT NO EVIDENCE H AS BEEN FILED BY THE ASSESSEE THAT BASIC AGRICULTURE OPERATIONS WERE CAR RIED OUT ON THE LAND FOR CULTIVATION. THE CIT (A) HAS RECORDED A CATEGORIC F INDING THAT THE LAND 6 ITA NO.1067/MUM/2017(A.Y. 2012-13) ITA NO.443/MUM/2017(A.Y.2012-13) ADMEASURING 1.33 ACRES INCLUDES STRUCTURE CONSISTIN G OF MAIN BUILDING, SWIMMING POOL, LANDSCAPE LAWNS, SERVANT ROOMS, PARK ING STRUCTURE, ETC. 6. WE HAVE HEARD THE SUBMISSIONS MADE BY RIVAL SIDE S AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE PRIMAR Y QUESTION FOR OUR CONSIDERATION IN THIS APPEAL IS: WHETHER THE LAND SOLD APPURTENANT TO THE BUNGALOW IS AN AGRICULTURAL LAND WITHIN THE MEANING OF SECTION 2(1 4)(A)(III) OF THE ACT AND HENCE, ITS SALE PROCEEDS ARE EXEMPT FROM TAX. 7. THE UNDISPUTED FACTS IN THE APPEAL ARE, THE ASSE SSEE IS A JOINT OWNER OF LAND ADMEASURING LAND 1.33 ACRES COMPRISING IN G UT NO.364, 363 AND 365 SITUATED AT VILLAGE AWAS, TALUKKA ALIBAG, DIST. RAIGAD. THE ASSESSE HAD PRE-DEFINED SHARE IN AFORESAID LAND AND BUNGALOW TH EREON ADMEASURING APPROXIMATELY 8000 SQ.FTS. THE ASSESSEE IN ORIGINAL RETURN OF INCOME OFFERED HIS SHARE FROM SALE OF BUNGALOW AND LAND, U NDER THE HEAD CAPITAL GAINS. IN REVISED RETURN OF INCOME, THE ASSESSEE O FFERED HIS SHARE FROM SALE OF BUNGALOW UNDER THE HEAD CAPITAL GAINS. A S REGARDS INCOME FROM SALE OF LAND APPURTENANT TO SAID BUNGALOW, THE ASSE SSEE CLAIMED SAME TO BE EXEMPT FROM TAX ON THE GROUND THAT THE LAND IS A GRICULTURAL LAND. 8. THE ASSESSEE IN ORDER TO SUBSTANTIATE THAT THE L AND APPURTENANT TO BUNGALOW IS AN AGRICULTURAL LAND AND THUS, INCOME F ROM SALE OF SAID LAND IS EXEMPT FROM TAX FURNISHED FOLLOWING DOCUMENTS. (I) CERTIFICATE DATED 11-11-2014 FROM THE TAHSILDAR , ALIBAUG CERTIFYING THAT THE LAND OF THE ASSESSE IS AT A DIS TANCE OF ABOUT 13 KMS FROM THE NEAREST MUNICIPAL COUNCIL OF ALIBAG AN D THE 7 ITA NO.1067/MUM/2017(A.Y. 2012-13) ITA NO.443/MUM/2017(A.Y.2012-13) POPULATION OF VILLAGE AWAS, WHERE THE LAND IS SITUA TED IS LESS THAN 10,000. (II) 7/12 EXTRACT TO SUBSTANTIATE THAT THE LAND WA S AGRICULTURAL LAND AND RICE CROP WAS CULTIVATED ON THE SAME. (III) REGISTERED SALE DEED TO SHOW THE TOTAL AREA OF LAND SOLD AND DETAILS OF BUNGALOW/SUPER STRUCTURE ON THE LAND. 9. THE ASSESSEE HAS DECLARED LONG TERM CAPITAL GAIN ON SALE OF BUNGALOW AND HAS OFFERED THE SAME TO TAX. THE DISP UTE IS ONLY WITH REGARD TO THE AGRICULTURE LAND. A PERUSAL OF 7/12 EXTRACTS FURNISHED BY THE ASSESSE REVEAL THAT RICE WAS CULTIVATED ON THE LAND COMPRISING IN GUT NO. 363, 364, 365 AND 366. EVEN IN FORM NO. 7,7A APPEND ED TO THE REGISTERED SALE DEED, CULTIVATION OF RICE IS SHOWN DURING THE YEAR 2011-12. 7/12 AND FORM 7, 7A ARE PART OF REVENUE RECORDS MAINTAINED B Y THE AUTHORITIES UNDER STATE GOVERNMENT. SINCE, THESE ARE THE RECOR DS MAINTAINED BY GOVERNMENT AUTHORITIES, SOME SANCTITY HAS TO BE ATT ACHED TO SUCH RECORDS FOR ASCERTAINING CROP CULTIVATED, NATURE OF LAND, E TC. REVENUE RECORDS CANNOT BE BRUSHED ASIDE ALTOGETHER WHILE DETERMININ G NATURE OF LAND. IT IS NOT THE CASE OF REVENUE THAT THE NATURE OF LAND IN QUESTION WAS CHANGED FROM AGRICULTURE TO NON-AGRICULTURE. THE ASSESSEE H AS ALSO FILED CERTIFICATE FROM TAHSILDAR, ALIBAG CERTIFYING THE DISTANCE OF T HE LAND FROM THE NEAREST MUNICIPALITY AND THE POPULATION OF THE VILLAGE. TH E REVENUE HAS NOT REBUTTED THE EVIDENCES FILED BY THE ASSESSEE. AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD, WE HAVE NO HESITATION IN HOLDING THAT THE LAND ADMEASURING 1.33 ACRES COMPRISING IN GUT NOS.3 63, 364, 365 AND 366 IN THE REVENUE ESTATE OF VILLAGE AWAS IS AN AGRICUL TURAL LAND WITHIN THE 8 ITA NO.1067/MUM/2017(A.Y. 2012-13) ITA NO.443/MUM/2017(A.Y.2012-13) MEANING OF SECTION 2(14)(A)(III) OF THE ACT AND THE SALE PROCEEDS OF SAID LAND ARE EXEMPT. 10. WE OBSERVE THAT ONE OF THE REASON FOR REJECTING ASSESSES CLAIM IS THAT THE ASSESSE HAS NOT DECLARED ANY INCOME FROM A GRICULTURE OPERATIONS. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS DEBBIE ALEMO (SUPRA) HAS HELD THAT IF A LAND IS SHOWN IN THE REV ENUE RECORDS TO BE USED FOR AGRICULTURE PURPOSE AND NO PERMISSION WAS EVER OBTAINED FOR NON- AGRICULTURE USE, IT IS INCONSEQUENTIAL WHETHER ANY INCOME FROM AGRICULTURAL OPERATION WAS DECLARED BY THE ASSESSE IN THE RETURN OF INCOME OR NOT. THUS, THE OBJECTION OF THE REVENUE IS WITHOUT ANY M ERIT. 11. WE FURTHER OBSERVE THAT THE DEPARTMENT IN THE C ASE OF OTHER TWO CO-OWNERS OF THE LAND I.E. SMT. SANOBER N. IRANI AN D SHRI KARL NAVZER IRANI HAS ACCEPTED THEIR RESPECTIVE RETURN OF INCOME WHER EIN, THE SAID CO- OWNERS HAVE DECLARED THEIR RESPECTIVE SHARE OF INCO ME FROM SALE OF SAME AGRICULTURAL LAND (AS THAT OF PRESENT ASSESSE) AS E XEMPT. THE DEPARTMENT CANNOT HAVE TWO DIVERGENT VIEWS IN CASE OF TWO ASSE SSEES WHO ARE ON SAME FOOTING, HAVING COMMON SOURCE OF INCOME GERMIN ATING FROM SAME TRANSACTION. 12. THUS, IN VIEW OF THE FACTS DISCUSSED ABOVE, WE FIND MERIT IN THE GROUNDS RAISED BY THE ASSESSE/APPELLANT AND DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION QUA SALE OF AGRICULTURE LAND , BEING EXEMPT FROM TAX. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . 9 ITA NO.1067/MUM/2017(A.Y. 2012-13) ITA NO.443/MUM/2017(A.Y.2012-13) ITA NO.443/MUM/2017,2012-13. 14. THE ASSESSEE IN THIS APPEAL IS ONE OF CO-OWNERS OF AGRICULTURE LAND, THAT WAS SUBJECT MATTER OF DISPUTE IN ITA NO.1067/M UM/2017 (SUPRA). THE APPEAL OF THE PRESENT ASSESSE GERMINATES FROM SAME SET OF FACTS AND THE ASSESSE IS ON SAME PEDESTAL. THEREFORE, THE REASONS GIVEN WHILE ADJUDICATING ABOVE SAID APPEAL, WOULD MUTATIS MUTAN DIS APPLY TO THE PRESENT APPEAL. THE APPEAL OF THE ASSESSE IS ALLOWED, IN SIMILAR TER MS. 15. THESE APPEAL WERE HEARD ON 03-01-2020. AS PER R ULE 34(5) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, (ITAT RULES, 1963), THE ORDER WAS REQUIRED TO BE ORDINARILY PRONOUNCED WITHIN A PERIOD OF 90 DAYS FROM THE DATE OF CONCLUSION OF THE HEARING OF APPEA L. THE INSTANT APPEAL WAS HEARD PRIOR TO THE LOCKDOWN DECLARED BY THE HON BLE PRIME MINISTER ON 24-03-2020 IN VIEW OF COVID-19 PANDEMIC. THE LOC KDOWN WAS FORCED DUE TO EXTRA ORDINARY CIRCUMSTANCES CAUSED BY WIDE SPREAD OF COVID-19. THEREAFTER, THE LOCKDOWN WAS EXTENDED FROM TIME TO TIME. THEREFORE, THE PRONOUNCEMENT OF ORDER BEYOND THE PERIOD OF 90 DAYS FROM THE DATE OF HEARING IS NOT UNDER ORDINARY CIRCUMSTANCES. THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF DCIT VS. JSW LTD., ITA NO.6264/MUM/2018 FOR A.Y 2013-14 DECIDED ON 14/05/2020, UNDER IDENTICAL CIRCUMSTANCES, AFTER CONSIDERING THE PROVISIONS OF RULE 34(5) OF THE ITA T RULES, 1963, JUDGEMENTS RENDERED BY THE HONBLE APEX COURT AND T HE HONBLE BOMBAY HIGH COURT ON THE ISSUE OF TIME LIMIT FOR PRONOUNCE MENT OF ORDERS BY THE TRIBUNAL AND THE CIRCUMSTANCES LEADING TO LOCKDOWN HELD:- 10 ITA NO.1067/MUM/2017(A.Y. 2012-13) ITA NO.443/MUM/2017(A.Y.2012-13) 10. IN THE LIGHT OF THE ABOVE DISCUSSIONS, WE ARE OF THE CONSIDERED VIEW THAT RATHER THAN TAKING A PEDANTIC VIEW OF THE RULE REQU IRING PRONOUNCEMENT OF ORDERS WITHIN 90 DAYS, DISREGARDING THE IMPORTANT F ACT 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 TH E BASIS OF PRAGMATISM, AND THAT IS HOW THE LAW IS REQUIRED TO INTERPRETED. THE INTERPRETATION SO ASSIGNED BY US IS NOT ONLY INCONSONANCE WITH THE LETTER AND SPI RIT OF RULE 34(5) BUT IS ALSO A PRAGMATIC APPROACH AT A TIME WHEN A DISASTER, NOTIF IED UNDER THE DISASTER MANAGEMENT ACT 2005, IS CAUSING UNPRECEDENTED DISR UPTION IN THE FUNCTIONING OF OUR JUSTICE DELIVERY SYSTEM. UNDOUBTEDLY, IN THE CASE OF OTTERS CLUB VS DIT [(2017) 392 ITR 244 (BOM)], HONBLE BOMBAY HIGH COU RT DID NOT APPROVE AN ORDER BEING PASSED BY THE TRIBUNAL BEYOND A PERIOD OF 90 DAYS, BUT THEN IN THE PRESENT SITUATION HONBLE 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 F OR 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 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 OUR C ONSIDERED VIEW, EVEN WITHOUT THE WORDS ORDINARILY, IN THE LIGHT OF THE ABOVE A NALYSIS OF THE LEGAL POSITION, THE PERIOD DURING WHICH ITA NO. 6103 AND LOCKOUT W AS 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. OF COURSE, THERE IS NO, AND THERE CAN NOT BE ANY, BAR ON THE DISCRETION OF THE BENCHES TO REFIX THE MATTERS FOR CLARIFICATIONS BECAUSE OF CONSIDERABLE TIME LAG BETWEEN THE POINT OF TIME WHE N THE HEARING IS CONCLUDED AND THE POINT OF TIME WHEN THE ORDER THEREON IS BEI NG FINALIZED, BUT THEN, IN OUR CONSIDERED VIEW, NO SUCH EXERCISE WAS REQUIRED TO B E CARRIED OUT ON THE FACTS OF THIS CASE. THUS, IN LIGHT OF ABOVE FACTS AND THE DECISION OF C OORDINATE BENCH, THE PRESENT ORDER IS PRONOUNCED BEYOND THE PERIOD OF 90 DAYS. 11 ITA NO.1067/MUM/2017(A.Y. 2012-13) ITA NO.443/MUM/2017(A.Y.2012-13) 16. THESE TWO APPEALS BY TWO DIFFERENT ASSESSEES AR E ALLOWED. ORDER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TAX (APPE LLATE TRIBUNAL) RULES, 1962, BY PLACING THE DETAILS ON THE NOTICE B OARD. ORDER PRONOUNCED ON FRIDAY THE 5 TH DAY OF JUNE, 2020. SD/- SD/- (RAJESH KUMAR) (VIKAS AWASTHY) !# / ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, 5+/ DATED 05/06/2020 VM , SR. PS (O/S) COPY OF THE ORDER FORWARDED TO : 1. - / THE APPELLANT , 2. ./ / THE RESPONDENT. 3. 6/ ( )/ THE CIT(A)- 4. 6/ CIT 5. 78 ./+ , . . . , / DR, ITAT, MUMBAI 6. 89: ;< / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI