INCOME TAX OFFICER-21(2)(4), MUMBAI V. NATWAR B WAGHELA, MUMBAI

ITA 4779/MUM/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8827 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 06-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITA P KAUSHIK
• Assessee Lawyers: NIMESH CHOTNANI
• Keywords: Reopening of assessment; Bogus purchase; Depreciation
• Section: 133(6); 201; 131; 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI , !',#$% BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER & SHRI VIKAS AWASTHY, JUDICIAL MEMBER . 4779 / /201 7 ($,. . 2009-10 ) ITA NO.4779/MUM/2017 (A.Y.2009-10) ITO 22(2)(7), ROOM NO.107, 1 ST FLOOR, PIRAMAL CHAMBERS, PAREL, MUMBAI 400 012 ...... '. / APPELLANT , VS. MR. SHASHI NATWAR WAGHELA (LEGAL HEIR OF LATE MR. NATWAR B. WAGHELA), 402, 4 TH FLOOR, SHREE EKVEERA SOC. (ANAND BHUVAN) GOKHALE ROAD (NORTH) DADAR (W), MUMBAI 400 028 PAN:AAAPW3488L ..... /$0/ RESPONDENT C.O.NO.187/MUM/2019 (ARISING OUT OF ITA NO.4779/MUM/2017, A.Y. 2009-10) MR. SHASHI NATWAR WAGHELA (LEGAL HEIR OF LATE MR. NATWAR B. WAGHELA), 402, 4 TH FLOOR, SHREE EKVEERA SOC. (ANAND BHUVAN) GOKHALE ROAD (NORTH) DADAR (W), MUMBAI 400 028 .... CROSS OBJECTOR , VS. ITO 22(2)(7), ROOM NO.107, 1 ST FLOOR, PIRAMAL CHAMBERS, PAREL, ... APPELLANT IN APPEAL MUMBAI 400 012 2 ITA NO.4779/MUM/2017(A.Y.2009-10) C.O.NO.187/MUM/2019 '.1/ APPELLANT BY : MS. KAVITA P. KAUSHIK /$01/ RESPONDENT BY : SHRI NIMESH CHOTNANI ,2$0 '/ DATE OF HEARING : 24/02/2020 34 2$0 '/ DATE OF PRONOUNCEMENT : 27/07/2020 / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-33, MUMBAI (IN SHORT THE CIT (A)) DATED 07/04/2017 FOR THE ASSESSMENT YEAR 2009-10 . THE ASSESSEE HAS FILED CROSS OBJECTIONS ASSAILING THE FINDINGS OF CIT(A) I N DISMISSING ASSESSEES GROUND OF APPEAL CHALLENGING VALIDITY OF REOPENING OF AS SESSMENT UNDER SECTION 148 OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. THE CROSS OBJECTIONS FILED BY THE ASSESSEE ARE T IME BARRED BY 167 DAYS. THE ASSESSEE HAS FILED AN APPLICATION SEEKING CONDO NATION OF DELAY SUPPORTED BY AN AFFIDAVIT. A PERUSAL OF THE SAME SHOWS THAT THE DELAY IN FILING OF THE CROSS OBJECTIONS HAS BEEN ATTRIBUTED TO THE DEATH OF ASSE SSEE SHRI NATWAR B. WAGHELA. AFTER EXAMINING THE AFFIDAVIT WE ARE SATI SFIED THAT THE DELAY IN FILING OF THE CROSS OBJECTIONS IS NOT DELIBERATE AND IS FO R THE BONAFIDE REASONS EXPLAINED THEREIN. THUS, THE DELAY OF 167 DAYS IN F ILING OF CROSS OBJECTIONS IS CONDONED AND THE SAME ARE ADMITTED TO BE HEARD ALON G WITH THE APPEAL OF REVENUE. 3 ITA NO.4779/MUM/2017(A.Y.2009-10) C.O.NO.187/MUM/2019 3. MS. KAVITA P. KAUSHIK, REPRESENTING THE DEPARTM ENT SUBMITTED THAT THE ASSESSING OFFICER REOPENED ASSESSMENT FOR ASSESSMEN T YEAR 2009-10, AS THE ASSESSEE HAD INDULGED IN BOGUS PURCHASE OF MACHIN ERY FROM DECLARED HAWALA DEALERS. DURING THE COURSE OF REASSESSMENT PROCEED INGS, NOTICES UNDER SECTION 133(6) OF THE ACT WERE ISSUED TO THE VENDOR OF THE MACHINE I.E. M/S. SPAN ENTERPRISES AS WELL TO THE PARTY WHO HAD ALLEGEDLY INSTALLED THE MACHINE I.E. JUPITER GRAPHICS. THE NOTICES WERE SENT TO THE RES PECTIVE PARTIES ON THE ADDRESSES FURNISHED BY THE ASSESSEE. HOWEVER, THE NOTICES WERE RECEIVED BACK UNSERVED FROM THE POSTAL AUTHORITIES WITH THE REMAR K LEFT. SUMMONS UNDER SECTION 131 OF THE ACT WERE ALSO ISSUED TO M/S. JUP ITER GRAPHICS, HOWEVER THE SAME COULD NOT BE SERVED. FURTHER, THE ASSESSEE FA ILED TO PRODUCE THE VENDOR OF THE MACHINE AS WELL AS THE PARTY THAT HAD INSTAL LED THE MACHINE. THE NAMES OF BOTH THE ABOVE SAID PARTIES APPEAR IN THE LIST O F HAWALA DEALERS DECLARED BY MAHARASHTRA SALES TAX DEPARTMENT. SINCE THE ASSESSEE FAILED TO PROVE GENUINENESS OF THE PURCHASE, THE ASSESSING OFFICER RIGHTLY DISALLOWED THE COST OF MA CHINERY, COST OF INSTALLATION AS WELL AS, DEPRECIATION CLAIMED BY ASSESSEE ON THE SAID MACHINE. THE LD. DEPARTMENTAL REPRESENTATIVE PRAYED FOR REVERSING TH E FINDING OF CIT(A) AND RESTORING THE ADDITION/DISALLOWANCE MADE BY ASSESSI NG OFFICER IN RESPECT OF BOGUS PURCHASE. 4. PER CONTRA, SHRI NIMESH CHOTNANI, APPEARING ON B EHALF OF THE ASSESSEE VEHEMENTLY DEFENDED THE ORDER OF CIT(A) IN DELETING THE ADDITION ON MERITS. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD PURCHASED COLOUR OFFSET PRINTING MACHINE. TH E SAID MACHINE WAS 4 ITA NO.4779/MUM/2017(A.Y.2009-10) C.O.NO.187/MUM/2019 IMPORTED BY M/S. INSIGHT COMMUNICATIONS, OKHALA. T HE MACHINE WAS SUPPLIED TO THE ASSESSEE BY M/S. SPAN ENTERPRISES AND THE MA CHINE WAS INSTALLED AT THE PREMISES OF THE ASSESSEE BY M/S. JUPITER GRAPHICS. THE ASSESSEE HAD TAKEN LOAN FROM ANDHRA BANK FOR THE PURCHASE OF THE MACHI NE. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO LOAN SA NCTION LETTER FROM THE BANK AT PAGES 46 AND 47 OF THE PAPER BOOK. THE LD. AUTH ORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE BANK BEFORE ISSUING SANCTION LETTER HAD MADE DETAILED ENQUIRIES ABOUT THE GENUINENESS OF THE PUR CHASE OF MACHINERY AND THE VENDORS. THE PAYMENTS FOR SUPPLY OF MACHINERY AND INSTALLATION OF MACHINERY WERE DIRECTLY MADE BY THE BANK TO THE RES PECTIVE PARTIES. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE CERTIFICATE ISSUED BY BANK AT PAGE 44 OF THE PAPER BOOK INDICATING THAT T HE PAYMENTS WERE MADE BY THE BANK TO M/S. JUPITER GRAPHICS AND M/S. SPAN ENT ERPRISES. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER POINTED THAT THE ASSESSEE HAD FURNISHED SUFFICIENT EVIDENCE IN THE FORM OF IN VOICES, BANK SANCTION LETTER AND BOOKS OF ACCOUNTS TO PROVE THE GENUINENESS OF T RANSACTIONS. TO FURTHER BUTTRESS HIS SUBMISSIONS THE LD. AUTHORISED REPRESE NTATIVE SUBMITTED THAT THERE WAS SUBSTANTIAL INCREASE IN TURNOVER OF THE A SSESSEE AFTER INSTALLATION OF NEW MACHINE. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ASSERTED THAT THE ASSESSING OFFICER HAS ERRED IN DISALLOWING THE COST OF FIXED ASSET WITHOUT TAKING NOTE OF THE FACT THAT THE SAME WAS N OT DEBITED TO THE P&L ACCOUNT. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY RIVAL SIDE S AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE REVENUE IN IT S APPEAL HAS ASSAILED THE FINDINGS OF FIRST APPELLATE AUTHORITY IN DELETING T HE ADDITION OF RS.57,36,933/- IN 5 ITA NO.4779/MUM/2017(A.Y.2009-10) C.O.NO.187/MUM/2019 RESPECT OF BOGUS PURCHASES AND FURTHER ALLOWING ASS ESSEES CLAIM OF DEPRECIATION ON PRINTING MACHINE. THE ASSESSEE PUR PORTEDLY PURCHASED OFFSET PRINTING MACHINE FROM M/S. SPAN ENTERPRISES. THE A SSESSING OFFICER IN ORDER TO VERIFY GENUINENESS OF THE PURCHASE ISSUED NOTICE UN DER SECTION 133(6) OF THE ACT TO THE VENDOR OF THE MACHINE. THE NOTICE WAS R ECEIVED BACK UNSERVED WITH THE REMARKS LEFT. THE ASSESSING OFFICER THEREAFT ER, SENT INSPECTOR TO THE ADDRESS WHO REPORTED THAT THE VENDOR WAS NOT AVAILA BLE AT THE ADDRESS FURNISHED BY THE ASSESSEE. SIMILAR WAS THE FATE OF THE NOTICE AND THE VISIT BY INSPECTOR AT THE PREMISES OF M/S. JUPITER GRAPHICS, A FIRM INSTRUMENTAL IN INSTALLATION OF THE MACHINE AT ASSESSEES PREMISES. AFTER EXAMINING THE MATERIAL AVAILABLE ON RECORD, WE OBSERVED THAT THE INSPECTOR NEVER VISITED THE PREMISES OF ASSESSEE TO VERIFY EXISTENCE OF THE MAC HINE AT THE ASSESSEES SITE. THE ASSESSING OFFICER MERELY ON THE BASIS OF ENQUIR IES CONDUCTED AT THE ALLEGED PREMISES OF THE SUPPLIER FORMED AN OPINION THAT IT IS A CASE OF BOGUS PURCHASE. 6. THE ASSESSEE IN ORDER TO PROVE THE GENUINENESS O F THE PURCHASE HAS FURNISHED INVOICE AND THE SANCTION LETTER OF THE BA NK. THE ASSESSEE HAD FINANCED THE PURCHASE AND INSTALLATION OF THE MACHI NE FROM ANDHRA BANK. THE BANK HAD CERTIFIED THAT PAYMENTS WERE MADE TO. M/S. SPAN ENTERPRISES, THE VENDOR AND M/S. JUPITER GRAPHICS, WHO HAD INSTALLED THE MACHINE. THIS FACT HAS NOT BEEN REBUTTED BY THE DEPARTMENT. IT IS NOTEWORT HY THAT THE MACHINE WAS PURCHASED DURING THE FINANCIAL YEAR 2008-09 AND INS PECTOR VISITED THE PREMISES OF THE VENDORS IN DECEMBER, 2014. THE POSSIBILITY OF VENDORS SHIFTING THE PLACE OF BUSINESS IN BETWEEN CANNOT BE RULED OUT. FURTHER , WE OBSERVE THAT NO FINDING OF FACT HAS BEEN RECORDED BY THE ASSESSING OFFICER THAT THESE PARTIES NEVER HAD THEIR PLACE OF WORK AT THE GIVEN ADDRESSE S. THUS, THE RIGHT COURSE TO 6 ITA NO.4779/MUM/2017(A.Y.2009-10) C.O.NO.187/MUM/2019 VERIFY PURCHASE AND INSTALLATION OF MACHINE WAS TO VISIT THE PREMISES OF THE ASSESSEE, WHICH THE INSPECTOR FAILED TO DO. 7. WE FURTHER OBSERVE THAT THE PURCHASES ALLEGED TO BE BOGUS IS NOT A TRADING ASSET BUT A FIXED ASSET. THE PURCHASE OF F IXED ASSET IS NOT REFLECTED IN THE P&L ACCOUNT, HENCE, THE SAME WAS NOT CLAIMED BY THE ASSESSEE AS AN EXPENDITURE. ONCE THE EXPENDITURE HAS NOT BEEN CLA IMED, THE SAME CANNOT BE DISALLOWED. WE DO NOT FIND ANY INFIRMITY IN THE OR DER OF CIT(A) IN DELETING THE ADDITION QUA ALLEGED BOGUS PURCHASE OF MACHINERY AN D ALLOWING ASSESSEES CLAIM OF DEPRECIATION ON THE SAME. THE APPEAL OF R EVENUE IS WITHOUT ANY MERIT, HENCE, THE SAME IS DISMISSED. C.O.NO.187/MUM/2019 : 8. THE ASSESSEE IN CROSS OBJECTIONS HAS ASSAILED TH E ORDER OF CIT (A) IN DISMISSING ASSESSEES OBJECTION CHALLENGING REOPENI NG OF ASSESSMENT. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTE D THAT THE ASSESSEE HAD FILED OBJECTIONS AGAINST NOTICE UNDER SECTION 148 O F THE ACT. THE ASSESSING OFFICER WITHOUT DISPOSING THE OBJECTIONS BY PASSING A REASONED ORDER HAS PROCEEDED TO PASS ASSESSMENT ORDER. GIVING CHRONOL OGY OF EVENTS, THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTE D THAT NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED TO THE ASSESSEE O N 07/02/2014. THE ASSESSEE REPLIED TO SAID NOTICE ON 07/04/2014. THE LD. AUTH ORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED THAT WHILE RESPONDING TO THE N OTICE THE ASSESSEE ASKED FOR THE REASONS RECORDED FOR REOPENING, AS WELL AS OBJECTED TO THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. THE LD. AUTHORIZED R EPRESENTATIVE FOR THE ASSESSEE REFERRED TO THE SAID REPLY AT PAGE 27 OF T HE PAPER BOOK. THE ASSESSING 7 ITA NO.4779/MUM/2017(A.Y.2009-10) C.O.NO.187/MUM/2019 OFFICER FURNISHED REASONS FOR REOPENING ON 07/07/20 14. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT IT I S A WELL SETTLED LAW THAT WITHOUT DISPOSING OF OBJECTIONS BY PASSING A SPEAKI NG ORDER THE ASSESSMENT ORDER WOULD BE BAD IN LAW. 9. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTAT IVE VEHEMENTLY SUPPORTED THE FINDINGS OF CIT (A) IN REJECTING AS SESSEES GROUND CHALLENGING VALIDITY OF REOPENING. 10. BOTH SIDES HEARD. THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF G.K.N. DRIVE SHAFTS INDIA LTD. VS. ITO, 259 ITR 19( SC) HAS LAID DOWN THE PROCEDURE TO BE FOLLOWED BY THE ASSESSING OFFICER FOR DISPOSAL OF THE OBJECTIONS AND ALSO THE TIME LINE FOR FILING OF OBJ ECTIONS BY THE ASSESSEE IN THE CASE OF REOPENING OF ASSESSMENT. FOR THE SAKE OF C OMPLETENESS THE RELEVANT EXTRACT OF THE JUDGMENT OF HONBLE APEX COURT IS RE PRODUCED HEREIN BELOW:- WE CLARIFY THAT WHEN A NOTICE UNDER SECTION 148 OF THE INCOME-TAX ACT IS ISSUED, THE PROPER COURSE OF ACTION FOR THE NOTICEE IS TO FILE A RETURN AND IF HE SO DESIRES, TO SEEK REASONS FOR ISSUING NOTICES. THE ASSESSING OFFICER IS BOUND TO FURNISH REASONS WITHIN A REASONABLE TIME. ON RECEIPT OF REASONS, THE NOTICEE IS ENTITLED TO FILE OBJECTIONS TO ISSUANCE OF NOTICE AND THE ASSESSING OFFICER IS BOU ND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER. FROM A BARE PERUSAL OF THE PROCEDURE EXPLAINED BY T HE HONBLE APEX COURT, IT IS UNAMBIGUOUSLY CLEAR THAT IF THE ASSESSE IS AGGRIEVE D BY REOPENING, IT WAS INCUMBENT UPON THE ASSESSE TO FILE OBJECTIONS AFTER RECEIPT OF REASONS (FOR REOPENING ASSESSMENT) FROM THE ASSESSING OFFICER. HOWEVER, IN THE PRESENT CASE WE FIND THAT AFTER REASONS WERE SUPPLIED TO TH E ASSESSEE, THE ASSESSEE HAD NOT FILED ANY OBJECTIONS AGAINST AFORESAID REAS ONS FOR REOPENING. THE 8 ITA NO.4779/MUM/2017(A.Y.2009-10) C.O.NO.187/MUM/2019 OBJECTIONS AS REFERRED TO AT PAGE 27 OF THE PAPER B OOK ARE IN FACT NOT THE OBJECTIONS. NO SPECIFIC GROUND HAS BEEN TAKEN BY TH E ASSESSEE ALLEGING DEFICIENCY IN NOTICE. MOREOVER, THE SO CALLED OBJE CTIONS BY THE ASSESSEE WERE PRIOR IN TIME TO THE FURNISHING OF REASONS BY THE A SSESSING OFFICER. IN FACT THE ASSESSEE VIDE COMMUNICATION DATED 07/4/2014 HAD REQ UESTED THE ASSESSING OFFICER TO PROVIDE REASONS RECORDED FOR THE REOPENI NG. NO OBJECTIONS WERE FILED BY THE ASSESSEE AFTER RECEIPT OF REASONS. A SPECIFIC QUERY WAS MADE TO THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE AS T O WHETHER ANY OBJECTIONS WERE FILED BY THE ASSESSEE AFTER REASONS FOR REOPEN ING WERE SUPPLIED BY THE ASSESSING OFFICER, TO WHICH THE LD. AUTHORIZED REP RESENTATIVE FOR THE ASSESSEE REPLIED IN NEGATIVE. THUS, IN VIEW OF THE FACTS ME NTIONED ABOVE, WE FIND NO MERIT IN THE CROSS OBJECTIONS RAISED BY THE ASSESSE E ON LEGAL GROUNDS. ACCORDINGLY, THE SAME ARE DISMISSED. 11. TO SUM UP, APPEAL OF THE REVENUE, AS WELL AS, CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED . 12. THIS APPEAL WAS HEARD ON 24/02/2020. AS PER RU LE 34(5) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, (ITAT RULES, 1963), THE ORDER WAS REQUIRED TO BE ORDINARILY PRONOUNCED WITHIN A PER IOD OF 90 DAYS FROM THE DATE OF CONCLUSION OF THE HEARING OF APPEAL. THE IN STANT APPEAL WAS HEARD PRIOR TO THE LOCKDOWN DECLARED BY THE HONBLE PRIME MINIS TER ON 24-03-2020 IN VIEW OF COVID-19 PANDEMIC. THE LOCKDOWN WAS FORCED DUE T O EXTRA ORDINARY CIRCUMSTANCES CAUSED BY WORLD 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 9 ITA NO.4779/MUM/2017(A.Y.2009-10) C.O.NO.187/MUM/2019 DCIT VS. JSW LTD., ITA NO.6264/MUM/2018 FOR A.Y 201 3-14 DECIDED ON 14/05/2020, UNDER IDENTICAL CIRCUMSTANCES, AFTER CO NSIDERING THE PROVISIONS OF RULE 34(5) OF THE ITAT RULES, 1963, JUDGEMENTS REND ERED BY HONBLE APEX COURT AND THE HONBLE BOMBAY HIGH COURT ON THE ISSU E OF TIME LIMIT FOR PRONOUNCEMENT OF ORDERS BY THE TRIBUNAL AND THE CIR CUMSTANCES LEADING TO LOCKDOWN HELD:- 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 P RONOUNCEMENT OF ORDERS WITHIN 90 DAYS, DISREGARDING THE IMPORTANT FACT THAT THE ENTI RE COUNTRY WAS IN LOCKDOWN, WE SHOULD COMPUTE THE PERIOD OF 90 DAYS BY EXCLUDING A T LEAST THE PERIOD DURING WHICH THE LOCKDOWN WAS IN FORCE. WE MUST FACTOR GROUND RE ALITIES 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 OR DER. 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 INCONS ONANCE WITH THE LETTER AND SPIRIT OF RULE 34(5) BUT IS ALSO A PRAGMATIC APPROACH AT A TI ME WHEN A DISASTER, NOTIFIED UNDER THE DISASTER MANAGEMENT ACT 2005, IS CAUSING UNPREC EDENTED DISRUPTION IN THE FUNCTIONING OF OUR JUSTICE DELIVERY SYSTEM. UNDOUBT EDLY, 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 IN THE PRESENT SITUATION HONBLE BOMBAY HIGH COURT ITSELF HAS, VID E JUDGMENT DATED 15TH APRIL 2020, HELD THAT DIRECTED WHILE CALCULATING THE TIME FOR DISPOSAL OF MATTERS MADE TIME- BOUND BY THIS COURT, THE PERIOD FOR WHICH THE ORDER DATED 26TH MARCH 2020 CONTINUES TO OPERATE SHALL BE ADDED AND TIME SHALL STAND EXTENDED ACCORDINGLY . THE EXTRAORDINARY STEPS TAKEN SUO MOTU BY HONBLE J URISDICTIONAL HIGH COURT AND HONBLE SUPREME COURT ALSO INDICATE THAT THIS PERIO D OF LOCKDOWN CANNOT BE TREATED AS AN ORDINARY PERIOD DURING WHICH THE NORMAL TIME LIMITS ARE TO REMAIN IN FORCE. IN OUR CONSIDERED VIEW, EVEN WITHOUT THE WORDS ORDINA RILY, IN THE LIGHT OF THE ABOVE ANALYSIS OF THE LEGAL POSITION, THE PERIOD DURING W HICH ITA NO. 6103 AND LOCKOUT WAS IN FORCE IS TO EXCLUDED FOR THE PURPOSE OF TIME LIM ITS 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 NINETY DAYS, CLEARLY COMES INTO PLAY IN THE PRESENT CASE. OF COURSE, THERE IS NO, AND THERE CANNOT BE A NY, BAR ON THE DISCRETION OF THE BENCHES TO REFIX THE MATTERS FOR CLARIFICATIONS BEC AUSE OF CONSIDERABLE TIME LAG BETWEEN THE POINT OF TIME WHEN THE HEARING IS CONCL UDED AND THE POINT OF TIME WHEN THE ORDER THEREON IS BEING FINALIZED, BUT THEN, IN OUR CONSIDERED VIEW, NO SUCH EXERCISE WAS REQUIRED TO BE CARRIED OUT ON THE FACTS OF THIS CASE. 10 ITA NO.4779/MUM/2017(A.Y.2009-10) C.O.NO.187/MUM/2019 THUS, IN LIGHT OF ABOVE FACTS AND THE DECISION OF C OORDINATE BENCH, THE PRESENT ORDER IS PRONOUNCED BEYOND THE PERIOD OF 90 DAYS. 13. THE APPEAL OF THE REVENUE AND CROSS OBJECTIONS BY THE ASSESSE ARE DISMISSED. ORDER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1962, BY PLACING THE DETAILS ON TH E NOTICE BOARD. ORDER PRONOUNCED ON MONDAY THE 27TH DAY OF JULY, 2020. SD/- SD/- (SANJAY ARORA) (VIKAS AWA STHY) / ACCOUNTANT MEMBER #$ / JUDICIAL MEMBER / MUMBAI, 6,/ DATED 27 /07/2020 VM , SR. PS(O/S) COPY OF THE ORDER FORWARDED TO : 1. '. / THE APPELLANT , 2. /$0 / THE RESPONDENT. 3. 70 ( )/ THE CIT(A)- 4. 70 CIT 5. ! 89/$0$, , . . . , / DR, ITAT, MUMBAI 6. 9:;<= / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI