PIRAMAL GLASS PRIVATE LTD(EARLIER KNOWN AS PIRAMAL GLASS LIMITED), MUMBAI V. DCIT 7(3)(2), MUMBAI

ITA 556/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0084 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: K
• Assessment Year: 2013-2014
• Appeal Filed On: 30-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Depreciation; Transfer pricing; Opportunity of being heard; International transaction; Fair market value; Commercial expediency; TDS
• Section: 143(3); 244A; 14A; 115JB; 201; 13

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J, MUMBAI , # ,$ % BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI N.K.PRADHAN, ACCOUNTANT MEMBER . 556 / /201 8 (. . 2013-14 ) ITA NO.556/MUM/2018 (A.Y.2013-14) PIRAMAL GLASS PRIVATE LIMITED, (EARLIER KNOWN AS PIRAMAL GLASS LTD) PIRAMAL TOWER, GANPATRAO KADAM MARG, LOWER PAREL, MUMBAI 400 013 PAN: AABCG0093R ...... - / APPELLANT VS. THE DEPUTY COMMISSIONER OF INCOME TAX-7(3)(2), ROOM NO.623, 6 TH FLOOR, AAYKAR BHAVAN, M.K.ROAD, MUMBAI 400 020 ..... #. / RESPONDENT -// APPELLANT BY : SHRI RONAK G. DOSHI WITH SHRI HARDIK NIRMAL #. // RESPONDENT BY : SHRI A. MOHAN 0. / DATE OF HEARING : 22/01/2020 123 0. / DATE OF PRONOUNCEMENT : 22/06/2020 / ORDER PER VIKAS AWASTHY, JM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST AS SESSMENT ORDER DATED 28/11/2017 PASSED UNDER SECTION 143(3) R.W.S. 144C( 13) OF THE INCOME TAX ACT, 1961 ( IN SHORT THE ACT) FOR THE ASSESSMENT YEAR 2013-14. 2 ITA NO.556/MUM/2018(A.Y.2013-14) 2 2. SHRI RONAK G. DOSHI, APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED AT THE OUTSET THAT ALL THE GROUNDS RAISED IN THE APPEA L ARE RECURRING ISSUES AND HAVE BEEN ADJUDICATED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN THE PRECEDING ASSESSMENT YEAR. THUS, MAJORITY OF THE GROUNDS RAI SED IN APPEAL ARE COVERED ISSUES. THE LD.AUTHORIZED REPRESENTATIVE OF THE ASS ESSEE FILED A CHART GIVING DETAILS OF THE ISSUES RAISED AND THE ORDERS OF THE TRIBUNAL /JUDGMENTS OF THE HONBLE COURTS, VIDE WHICH THEY ARE COVERED. 3. SHRI A. MOHAN, REPRESENTING THE DEPARTMENT VEHEM ENTLY DEFENDED THE IMPUGNED ASSESSMENT ORDER. HOWEVER, THE LD. DR FAIR LY ADMITTED THAT MAJORITY OF THE ISSUES RAISED IN THE APPEAL WERE CONSIDERED BY THE TRIBUNAL IN THE PAST IN ASSESSEES OWN CASE. 4. BOTH SIDES HEARD AND ORDERS OF AUTHORITIES BELOW PERUSED. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF GLAS S BOTTLES. THE ASSESSEE HAS ENTERED INTO VARIOUS INTERNATIONAL TRANSACTIONS WIT H ITS ASSOCIATED ENTERPRISES (AES) DURING THE FINANCIAL YEAR 2012-13. THE TRAN SFER PRICING OFFICER (TPO) MADE ADJUSTMENT OF RS.5,01,86,604/- IN RESPECT OF I NTERNATIONAL TRANSACTIONS ENTERED INTO BY ASSESSE IN THE IMPUGNED ASSESSMENT YEAR. APART FROM THE ADJUSTMENT MADE ON ACCOUNT OF TRANSFER PRICING (TP) ISSUES, THERE WERE CERTAIN ADDITIONS/DISALLOWANCES MADE BY THE ASSESSING OFFIC ER IN THE DRAFT ASSESSMENT ORDER DATED 30-12-2016. THE ASSESSE FILED OBJECTION S AGAINST THE ADDITIONS MADE BY TPO AND THE AO BEFORE THE DISPUTE RESOLUTIO N PANEL (DRP). THE DRP ALLOWED PART RELIEF TO THE ASSESSE VIDE DIRECTIONS DATED 30-09-2017. NOW, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL, IMPUGNIN G THE FINDINGS OF DRP AND AO ON THE ISSUES DECIDE AGAINST IT. THE VARIOUS GRO UNDS RAISED IN THE APPEAL ARE ADJUDICATED IN SERIATIM AS UNDER: 3 ITA NO.556/MUM/2018(A.Y.2013-14) 3 GROUND I: DISALLOWANCE OF DEPRECIATION ON NON-COMPE TE FEES PAID AND ALLOCATED OVER VARIOUS FIXED ASSETS TAKEN OVER ON SLUMP SALE BASIS WITHOUT PREJUDICE TO GROUND I: GROUND II: DISALLOWANCE OF DEPRECIATION @ 25% CLAIM ED ON NON COMPETE FEES. 4.1 THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESS EE FAIRLY STATED THAT THE ISSUE RAISED IN GROUND NO. I WAS DECIDED AGAINST TH E ASSESSEE BY THE TRIBUNAL IN PRECEDING ASSESSMENT YEARS I.E. AY 1999-2000,2001-0 2, 2005-6, 2006-07, 2007-08 TO 2009-10 AND ASSESSMENT YEARS 2011-12 AND 2012-13. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE FURNISHED COPY OF THE TRIBUNAL ORDERS FOR THE ABOVE ASSESSMENT YEARS. IN RESPECT OF GROUND OF APPEAL NO.II, THE LD. AUTHO RIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT INITIALLY IN ASSESSMEN T YEAR 1999-2000, THIS ISSUE WAS DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL IN ITA NO.4842/MUM/2004 DECIDED ON 05/04/2004, HOWEVER, IN ASSESSMENT YEAR 2001-02 THE CLAIM OF THE ASSESSEE WAS ALLOWED. THE REVENUE CARRIED THE ISSU E IN APPEAL BEFORE THE HON'BLE BOMBAY HIGH COURT IN INCOME TAX APPEAL NO.5 56 OF 2017 TITLED PCIT VS. PIRAMAL GLASS LTD. THE HON'BLE BOMBAY HIGH COU RT VIDE ORDER DATED 11/06/2019 DISMISSED THE APPEAL OF REVENUE. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE POINTED THAT THE TRI BUNAL IN A RECENT DECISION IN IT(TP)A NO.3046/MUM/2017 FOR ASSESSMENT YEAR 2012-1 3 DECIDED ON 07/06/2019 ALLOWED DEPRECIATION ON NON-COMPETE FEE @25%. 4.1.1 THE GROUNDS NO.I AND II OF THE APPEAL ARE TAK EN UP TOGETHER FOR ADJUDICATION AS THEY ARE CONNECTED TO EACH OTHER. I N GROUND NO.II OF THE APPEAL, THE ASSESSE HAS TAKEN AN ALTERNATE PLEA TO THE ISSUE RAISED IN GROUND 4 ITA NO.556/MUM/2018(A.Y.2013-14) 4 NO.I OF THE APPEAL. THE LD.AUTHORIZED REPRESENTATI VE OF THE ASSESSEE HAS FAIRLY STATED AT THE BAR THAT THE DEPRECIATION ON NON-COMP ETE FEE PAID AND ALLOCATED OVER VARIOUS FIXED ASSETS TAKEN OVER ON SLUMP SALE BASIS HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL IN THE PRECEDI NG ASSESSMENT YEARS. ACCORDINGLY, GROUND NO. I OF THE APPEAL IS DISMISSED . 4.1.2 IN SO FAR AS GROUND NO.II IS CONCERNED, WE FI ND THAT THE TRIBUNAL IN ASSESSEES OWN CASE IN IT(TP)A NO.3046/MUM/2017 (SU PRA) HAS ALLOWED DEPRECIATION ON NON-COMPETE FEE @25% BY CONSIDERING IT AS INTANGIBLE ASSET. FOR THE SAKE OF COMPLETENESS, THE RELEVANT EXTRACT OF THE FINDINGS OF TRIBUNAL DEALING WITH ASSESSEES CLAIM OF DEPRECIATION ON NO N-COMPETE FEE IS REPRODUCED HEREIN BELOW:- 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. AS COULD BE SEEN, THE DISPUTE RELATING TO ASSESSEES CLAIM OF D EPRECIATION ON NONCOMPETE FEE IS A RECURRING ISSUE BETWEEN THE PARTIES FROM THE ASSESS MENT YEAR 19992000 ONWARDS. WHILE DECIDING THE ISSUE IN ASSESSMENT YEAR 19992000 THE TRIBUNAL ALTOGETHER DISALLOWED ASSESSEES CLAIM OF DEPRECIATION ON BOTH THE COUNT I.E., DEPRECIATION ON ALLOCATION OF NON COMPETE FEE TO VARIOUS FIXED ASSETS AS WELL AS CLAI M OF DEPRECIATION BY TREATING NONCOMPETE FEE AS AN INTANGIBLE ASSET. HOWEVER, WHILE DECIDING ASSESSEES APPEAL IN SUBSEQUENT YEARS, THE TRIBUNAL ALLOWED ASSESSEES CLAIM OF DEPRECIATI ON @ 25% BY TREATING NONCOMPETE FEE AS AN INTANGIBLE ASSET. IN THE LATEST ORDER PASSED BY THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 200506 IN ITA NO.4777/MUM./2016, D ATED 30TH APRIL 2019, THE TRIBUNAL FOLLOWING ITS EARLIER ORDER HAS DECIDED THE ISSUE A S UNDER: 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D MATERIAL ON RECORD. THE ISSUE BEFORE US IS, WHETHER ASSESSEES CLAIM OF DEPRECIAT ION ON NONCOMPETE FEE @ 25% BY TREATING IT AS AN INTANGIBLE ASSET IS ACCEPTABLE OR NOT. AS COULD BE SEEN, THIS IS A RECURRING DISPUTE BETWEEN THE PARTIES SINCE THE ASS ESSMENT YEAR 19992000. THOUGH, WHILE DECIDING THE ISSUE IN THE ASSESSMENT YEAR 199 92000, VIDE ITA NO.4842/MUM./2004, DATED 5TH APRIL 2013, THE TRIBUN AL HAS DISALLOWED ASSESSEES CLAIM OF DEPRECIATION ON NONCOMPETE FEE BY TREATIN G IT AS AN INTANGIBLE ASSET, HOWEVER, WHILE DECIDING ASSESSEES APPEAL IN ASSESS MENT YEAR 200102 IN ITA NO. 9645/MUM./2004, DATED 2ND MARCH 2016, THE TRIBUNAL THOUGH WAS CONSCIOUS OF ITS OWN CONTRARY DECISION IN ASSESSMENT YEAR 19992000, HOWEVER, TAKING NOTE OF THE DECISIONS OF HONBLE MADRAS HIGH COURT AND HONBLE KARNATAKA HIGH COURT, REFERRED TO ABOVE, ALLOWED ASSESSEES CLAIM OF DEPRECIATION BY TREATING THE NON COMPETE FEE AS AN INTANGIBLE ASSET. THE SAME VIEW WAS REITERATE D BY THE TRIBUNAL WHILE DECIDING ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 200607 I N ITA NO.5360/ MUM./2010, DATED 16TH DECEMBER 2016, AND IN ASSESSMENT YEAR 20 1112 IN ITA 5 ITA NO.556/MUM/2018(A.Y.2013-14) 5 NO.157/MUM./2011, DATED 4TH JANUARY 2007. THEREFORE , FACTS BEING IDENTICAL, FOLLOWING THE CONSISTENT VIEW OF THE TRIBUNAL IN TH E ORDERS REFERRED TO ABOVE, AS WELL AS THE DECISION OF DIFFERENT HIGH COURTS CITED SUPR A, WE UPHOLD THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) ON THE ISSUE. GROUND IS DISMISSED. 7. THE FACTS BEING IDENTICAL, RESPECTFULLY FOLLOWI NG THE CONSISTENT VIEW OF THE TRIBUNAL, WE DIRECT THE A.O. TO ALLOW DEPRECATION ON NON COMPET E FEE @ 25% BY TREATING IT AS AN INTANGIBLE ASSET. 8. THUS, GROUND NO.(I) IS DISMISSED AND GROUND NO. (II) IS ALLOWED. THE REVENUE HAS NOT BEEN ABLE TO DISTINGUISH EITHER ON FACTS OR LAW THE FINDINGS OF TRIBUNAL IN ALLOWING DEPRECIATION @25% ON NON-COMPETE FEE. IN THE LIGHT OF ABOVE TRIBUNAL ORDER IN ASSESSES OWN CASE , THE GROUND NO. II OF THE APPEAL IS ALLOWED FOR PARITY OF REASONS. WITHOUT PREJUDICE TO GROUND I AND II: GROUND III: DISALLOWANCE OF DEDUCTION TO THE EXTENT OF 1/18 TH OF NON COMPETE FEES: 4.2 THE GROUND NO.III OF THE APPEAL IS WITHOUT PREJ UDICE TO GROUND NO.I AND II. SINCE WE HAVE ACCEPTED ASSESSEES PLEA IN GROU ND NO.II, THIS GROUND OF APPEAL HAS BECOME INFRUCTUOUS AND THE SAME IS DISMISSED AS SUCH . GROUND IV: DISALLOWANCE OF DEPRECIATION ON ADOPTION OF WRONG ACTUAL COST OF VARIOUS FIXED ASSETS: 4.3 THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESS EE POINTED THAT THE ASSESSEE HAD ALLOCATED LUMPSUM CONSIDERATION PAID F OR ACQUISITION OF DEPRECIABLE ASSETS TRANSFERRED FROM M/S. NICHOLAS P IRAMAL INDIA LTD. AT THE TIME OF ACQUISITION. THE ASSETS WERE TRANSFERRED A T FAIR MARKET VALUE AND THE DEPRECIATION WAS CLAIMED ON THE SAME. THE ASSESSIN G OFFICER DISALLOWED ASSESSEES CLAIM AND TREATED THE TRANSACTION AS ONE OF AMALGAMATION AND TOOK WRITTEN DOWN VALUE OF THE TRANSFERRED ASSETS IN THE BOOKS OF TRANSFEROR COMPANY I.E. M/S. NICHOLAS PIRAMAL AS ACTUAL COST T O THE ASSESSEE AND ALLOWED DEPRECIATION ACCORDINGLY. THE LD.AUTHORIZED REPRES ENTATIVE OF THE ASSESSEE 6 ITA NO.556/MUM/2018(A.Y.2013-14) 6 POINTED THAT SIMILAR DISALLOWANCE OF DEPRECIATION W AS MADE BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2012-13. THE TRIBUNAL A FTER EXAMINING THE FACTS RESTORED THIS ISSUE TO THE FILE OF ASSESSING OFFICE R FOR DE-NOVO ADJUDICATION. 4.3.1 THE LD.DEPARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED THE FINDINGS OF THE ASSESSING OFFICER. HOWEVER, THE LD. DEPARTM ENTAL REPRESENTATIVE SUBMITTED THAT ON SIMILAR SET OF FACTS THE ISSUE WA S RESTORED BY THE TRIBUNAL TO ASSESSING OFFICER IN ASSESSMENT YEAR 2012-13. 4.3.2 WE HAVE HEARD BOTH SIDES AND HAVE EXAMINED TH E ORDERS OF AUTHORITIES BELOW. BOTH SIDES ARE UNANIMOUS IN ADMITTING THAT THE ISSUE RAISED IN THE PRESENT GROUND OF APPEAL IS IDENTICAL TO THE ONE AL READY ADJUDICATED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN IT(TP)A NO.3046/ MUM/2017 (SUPRA). WE FIND THAT THE CO-ORDINATE BENCH HAS RESTORED THIS I SSUE BACK TO THE FILE OF ASSESSING OFFICER AFTER PLACING RELIANCE ON THE EAR LIER ORDER OF TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006-07. T HE RELEVANT EXTRACT OF THE FINDINGS OF THE TRIBUNAL IN AY 2012-13 ON THIS ISSU E READS AS UNDER:- 14. HAVING CONSIDERED RIVAL SUBMISSIONS AND PERUSE D MATERIAL ON RECORD WE FIND, WHIL E DECIDING IDENTICAL ISSUE IN THE PRECEDING ASSESSMEN T YEARS IN ASSESSEES OWN CASE, THE TRIBUNAL HAS RESTORED THE ISSUE TO THE ASSESSING OF FICER FOR FRESH ADJUDICATION. IN THIS CONTEXT, WE MAY REFER TO THE LATEST ORDER PASSED BY THE TRIB UNAL FOR THE ASSESSMENT YEAR 200607 IN ITA NO.8360/MUM./2010, DATED 16TH DECEMBER 2016. FA CTS BEING IDENTICAL, RESPECTFULLY FOLLOWING THE CONSISTENT VIEW EXPRESSED BY THE TRIB UNAL IN THE PRECEDING ASSESSMENT YEARS, WE RESTORE THE ISSUE TO THE ASSESSING OFFICER FOR D E NOVO ADJUDICATION IN TERMS WITH THE DIRECTIONS OF THE TRIBUNAL IN PRECEDING ASSESSMENT YEARS. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. FOR THE PARITY OF REASONS, THE ISSUE IN GROUND NO. IV OF THE PRESENT APPEAL IS RESTORED BACK TO THE FILE OF ASSESSING OFFICER WITH SIMILAR DIRECTIONS. THE GROUND NO.IV OF THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE , ACCORDINGLY. 7 ITA NO.556/MUM/2018(A.Y.2013-14) 7 GROUND- V: DISALLOWANCE OF INTEREST RS.4,52,59,607/ - U/S.36(1)(III) OF THE ACT. 4.4 THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESS EE SUBMITTED THAT THE ASSESSEE HAS MADE INVESTMENTS IN ITS SUBSIDIARY CO MPANIES VIZ. CEYLON GLASS COMPANY LTD. (SRI LANKA), GUJARAT GLASS INTERNATION AL (USA). THE ASSESSING OFFICER HELD THAT THE INVESTMENTS HAVE BEEN MADE BY UTILIZING BORROWED INTEREST BEARING FUNDS IN THE AFORESAID SUBSIDIARY COMPANIES. FURTHER, IT WAS HELD THAT THE INVESTMENT IS UNRELATED TO THE BUSINE SS OF ASSESSE. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE CONTENDED THAT SINCE SUBSIDIARIES ARE IN SAME LINE OF BUSINESS THE EXPENDITURE IS ALL OWABLE ON THE BASIS OF COMMERCIAL EXPEDIENCY. THE LD.AUTHORIZED REPRESENT ATIVE OF THE ASSESSEE POINTED THAT SIMILAR DISALLOWANCE OF INTEREST UNDER SECTION 36(1)(III) OF THE ACT WAS MADE BY ASSESSING OFFICER IN ASSESSMENT YEAR 20 12-13. THE TRIBUNAL DELETED THE DISALLOWANCE BY HOLDING THAT THE INVEST MENT IN SISTER CONCERNS IS FOR THE PURPOSE OF BUSINESS. THE LD.AUTHORIZED REP RESENTATIVE OF THE ASSESSEE FURTHER POINTED THAT THE ISSUE OF DISALLOWANCE OF I NTEREST TRAVELLED TO THE HON'BLE BOMBAY HIGH COURT IN ASSESSEES OWN CASE IN INCOME TAX APPEAL NO. 556 OF 2017 FILED BY THE DEPARTMENT. THE HON'BLE B OMBAY HIGH COURT CONFIRMED THE FINDINGS OF TRIBUNAL AND DISMISSED TH E APPEAL FILED BY THE REVENUE VIDE ORDER DATED 11-06-2019. 4.4.1 THE LD. DEPARTMENTAL REPRESENTATIVE FAIRLY AD MITTED THAT THE ISSUE OF DISALLOWANCE UNDER SECTION 36(1)(III) OF THE ACT WA S CONSIDERED BY THE TRIBUNAL IN ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13(SU RPA). 4.4.2 BOTH SIDES HEARD, ORDERS OF THE AUTHORITIES B ELOW EXAMINED. WE FIND THAT IN ASSESSMENT YEAR 2012-13 DISALLOWANCE UNDER SECTION 36(1)(III) OF THE ACT WAS MADE BY THE REVENUE ON IDENTICAL SET OF FAC TS. THE CO-ORDINATE BENCH 8 ITA NO.556/MUM/2018(A.Y.2013-14) 8 OF THE TRIBUNAL FOLLOWING THE ORDER OF TRIBUNAL IN ASSESSEES OWN CASE IN PRECEDING ASSESSMENT YEARS DELETED THE DISALLOWANCE . FOR THE SAKE OF COMPLETENESS THE RELEVANT EXTRACT OF THE FINDINGS O F THE TRIBUNAL IN IT(TP)A NO.3046/MUM/2017 (SUPRA) ON THIS ISSUE ARE REPRODUC ED HEREIN BELOW:- 19. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL ON RECORD. AS COULD BE SEEN FROM THE FACTS AVAILABLE ON RECORD, THIS IS A RECURRING ISSUE BETWEEN THE ASSESSEE AND THE DEPARTMENT FROM THE ASSESSMENT YEAR 200102 ONW ARDS. WHILE DECIDING IDENTICAL ISSUE IN THE LATEST ORDER PASSED BY THE TRIBUNAL IN ASSES SEES OWN CASE FOR THE ASSESSMENT YEAR 200506 IN APPEAL FILED BY THE DEPARTMENT BEING ITA NO.4777/MUM./2016, DATED 30TH APRIL 2019, THE TRIBUNAL HAS UPHELD THE DECISION OF THE L EARNED COMMISSIONER (APPEALS) ALLOWING ASSESSEES CLAIM WITH THE FOLLOWING OBSERVATIONS: 14. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUS ED MATERIAL ON RECORD. AS COULD BE SEEN, THE ASSESSING OFFICER HAS DISALLOWED A PAR T OF INTEREST EXPENDITURE ON THE REASONING THAT INVESTMENTS MADE BY THE ASSESSEE IN SISTER CONCERNS ARE NOT FOR THE PURPOSE OF BUSINESS. HOWEVER, IT IS NOTICED THAT WH ILE DECIDING DISPUTE ARISING OUT OF SIMILAR DISALLOWANCE MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT YEAR 200102, THE TRIBUNAL IN ITA NO.9645 AND 9498/MUM./2004, DAT ED 2ND MARCH 2016, HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY HOLD ING THAT THE INVESTMENT OF FUNDS IN SISTER CONCERNS ARE FOR THE PURPOSE OF BUSINESS. TH E SAME VIEW WAS REITERATED BY THE TRIBUNAL WHILE DECIDING THE ISSUE IN ASSESSMENT YEA R 200607, VIDE ITA NO.8360/MUM./2010, DATED 16TH DECEMBER 2016, AND FO R THE ASSESSMENT YEAR 201112 IN ITA NO.157/MUM./2016, DATED 4TH JANUARY 2017. FACTS BEING IDENTICAL, FOLLOWING THE CONSISTENT VIEW OF THE TRIBUNAL IN AS SESSEES OWN CASE AS REFERRED TO ABOVE, WE UPHOLD THE DECISION OF LEARNED COMMISSION ER (APPEALS) ON THE ISSUE. GROUND RAISED IS DISMISSED. 20. FACTS BEING IDENTICAL, RESPECTFULLY FOLLOWING T HE DECISION OF THE COORDINATE BENCH IN THE PRECEDING ASSESSMENT YEARS, WE DELETE THE DISALLOWA NCE MADE BY THE ASSESSING OFFICER. IN VIEW OF ABOVE FINDINGS OF THE CO-ORDINATE BENCH AND THE PARITY OF FACTS IN THE IMPUGNED ASSESSMENT YEAR, THE GROUND NO.V OF THE APPEAL IS ALLOWED . THE ASSESSING OFFICER IS DIRECTED TO DELETE THE DISALLO WANCE MADE UNDER SECTION 36(1)(III) OF THE ACT . WITHOUT PREJUDICE TO GROUND V: GROUND - VI DISALLOWANCE OF INTEREST OF RS.4,52,59, 607 U/S.57(III) OF THE ACT: 9 ITA NO.556/MUM/2018(A.Y.2013-14) 9 4.5. THE LD.AUTHORIZED REPRESENTATIVE OF THE ASSESS EE STATED AT THE BAR THAT IN CASE GROUND NO.V OF THE APPEAL IS ALLOWED THEN G ROUND NO.VI WOULD BECOME INFRUCTUOUS. 4.5.1 SINCE WE HAVE GRANTED RELIEF TO THE ASSESSEE ON GROUND NO.V OF THE APPEAL, THE GROUND NO.VI OF THE APPEAL HAS BECOME I NFRUCTUOUS AND THE SAME IS DISMISSED AS SUCH. GROUND- VII: ADDITION ON ACCOUNT OF UNUTILIZED CRED IT FOR CENTRAL VALUE ADDED TAX (CENVAT) U/S 145A OF THE ACT AMOU NT TO RS.1,48,16,181: 4.6 THE LD.AUTHORIZED REPRESENTATIVE OF THE ASSESSE E SUBMITTED THAT THE ASSESSING OFFICER HAD MADE ADDITION OF UNUTILIZED C ENVAT OF RS.1,48,16,181/- UNDER SECTION 145A OF THE ACT ON THE GROUND THAT TH E EXCLUSIVE METHOD FOLLOWED BY THE ASSESSEE WAS NOT IN ACCORDANCE WIT H PROVISIONS OF SECTION 145A OF THE ACT. THE ASSESSEE VALUES THE OPENING AN D CLOSING STOCK OF RAW MATERIAL, STORES, SPARES AND PACKAGING MATERIAL AT COST LESS EXCISE DUTY AND OTHER TAXES. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE POINTED THAT THE ASSESSEE IS FOLLOWING AS-II FOR VALUATION OF IN VENTORIES AND THE GUIDANCE NOT ISSUED BY ICAI FOR TREATMENT FOR MODVAT/CENVAT. TH E ADJUSTMENT REQUIRED UNDER SECTION 145A OF THE ACT IS REFLECTED IN ANNEX URE-III OF THE TAX AUDIT REPORT WHICH SHOWS NET IMPACT ON THE P&L ACCOUNT AS NIL. THE DRP HAS ALSO REJECTED THE METHOD ADOPTED BY THE ASSESSEE. THE LD .AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE A SSESSEE HAS BEEN CONSISTENTLY FOLLOWING THIS METHOD FOR VALUATION OF RAW MATERIAL, INVENTORIES ETC. SIMILAR ADDITION ON ACCOUNT OF UNUTILIZED CEN VAT WAS MADE IN 2012-13. 10 ITA NO.556/MUM/2018(A.Y.2013-14) 10 THE TRIBUNAL RESTORED THE ISSUE BACK TO THE ASSESSI NG OFFICER FOR FRESH CONSIDERATION. 4.6.1 THE LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTL Y SUPPORTED THE ASSESSMENT ORDER. THE LD. DR FURTHER SUBMITTED THAT IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR THE ISSUE WAS RESTORED BA CK TO THE FILE OF ASSESSING OFFICER, THEREFORE, IN THE CURRENT ASSESSMENT YEAR ALSO IT CAN BE RESTORED BACK TO THE ASSESSING OFFICER WITH SIMILAR DIRECTIONS. 4.6.2 WE HAVE CONSIDERED THE SUBMISSIONS MADE BY RI VAL SIDES AND HAVE EXAMINED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ADDITION ON ACCOUNT OF UNUTILIZED CENVAT CREDIT WAS MADE IN ASS ESSEES CASE IN ASSESSMENT YEAR 2012-13 FOR SIMILAR REASONS. THE TRIBUNAL RESTORED THE ISSUE BACK TO THE ASSESSING OFFICER BY OBSERVING AS UNDER :- 32. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUS ED THE MATERIAL ON RECORD. IDENTICAL ISSUE AROSE IN ASSESSEES OWN CASE IN THE ASSESSMEN T YEAR 200607. THE TRIBUNAL WHILE DECIDING THE ISSUE IN ITA NO.8360/MUM./2010, DATED 16TH DECEMBER 2016, HAS HELD AS UNDER: 43. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PART IES AND PERUSED THE MATERIAL AVAILABLE ON RECORD IN THE LIGHT OF THE DECISIONS R ELIED UPON. ON A READING OF SECTION 145A OF THE ACT, IT IS TO BE NOTED THAT AS PER THE SAID PROVISION, WHILE VALUING THE OPENING STOCK AND CLOSING STOCK FURTHER ADJUSTMENT HAS TO BE MADE TO INCLUDE AMOUNT OF ANY TAX, DUTY, CESS OR FEE ACTUALLY PAID / INCURRED BY THE ASSESSEE TO BRING THE GOODS TO THE PLACE OF ITS LOCATION AND CONDITIO N AS ON THE DATE OF VALUATION. IT IS FURTHER RELEVANT TO OBSERVE, THE HON'BLE DELHI HIGH COURT IN CIT V/S MAHAVIR ALUMINIUM LTD., 168 TAXMANN.COM 27, INTERPRETING TH E PROVISIONS OF SECTION 145A HAS OBSERVED THAT ADJUSTMENT OF CLOSING STOCK BY INCLUD ING TAX, CESS, OR FEE CANNOT BE MADE WITHOUT MAKING CORRESPONDING ADJUSTMENT TO THE OPENING STOCK. THIS VIEW HAS BEEN REITERATED IN A NUMBER OF DECISIONS OF THE TRI BUNAL WHICH THE LEARNED AUTHORISED REPRESENTATIVE RELIED UPON. WE, THEREFOR E, DIRECT THE ASSESSING OFFICER TO VALUE THE CLOSING STOCK STRICTLY IN TERMS OF SECTIO N 145A, KEEPING IN VIEW THE PRINCIPLE LAID DOWN IN JUDICIAL PRECEDENTS REFERRED TO ABOVE AND ONLY AFTER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. GROUND NO.8 IS ALLOWED FOR STATISTICAL PURPOSES. 33. FACTS BEING IDENTICAL, RESPECTFULLY FOLLOWING T HE AFORESAID DECISION OF THE TRIBUNAL, WE RESTORE THE ISSUE TO THE ASSESSING OFFICER FOR DECI DING AFRESH IN TERMS WITH THE DIRECTIONS OF THE TRIBUNAL IN ASSESSMENT YEAR 200607. 11 ITA NO.556/MUM/2018(A.Y.2013-14) 11 SINCE THE FACT IN THE ASSESSMENT YEAR UNDER APPEAL ARE IDENTICAL, WE DEEM IT APPROPRIATE TO RESTORE THIS ISSUE BACK TO THE FILE OF ASSESSING OFFICER FOR DE- NOVO ADJUDICATION, IN LINE WITH THE ORDER OF THE T RIBUNAL FOR ASSESSMENT YEAR 2012-13. THE GROUND NO.VII OF THE APPEAL IS ACCORDINGLY ALLOW ED FOR STATISTICAL PURPOSE. GROUND NO.VIII: ADDITION TO ARMS LENGTH PRICE OF I NTERNATIONAL TRANSACTIONS BASED ON TRANSFER PRICING OFFICERS OR DER U/S 92CA(3) OF RS.5,04,90,052: 4.7 THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESS EE SUBMITTED THAT THE GROUND NO.VIII OF THE APPEAL IS IN RESPECT OF TP AD JUSTMENT MADE ON ACCOUNT OF CORPORATE GUARANTEE COMMISSION RS.4,56,46,772/- AND INTEREST ON LOAN EXTENDED TO SUBSIDIARY PIRAMAL GLASS UK LTD. RS.45, 39832/-. IN THE INSTANT ASSESSMENT YEAR THE ASSESSEE SUO-MOTU MADE ADJUSTME NT OF 0.25% IN RESPECT OF CORPORATE GUARANTEE. THE LD. AUTHORIZED REPRESEN TATIVE OF THE ASSESSEE POINTED THAT BOTH THESE ISSUES HAD COME UP FOR ADJU DICATION BEFORE THE TRIBUNAL IN ASSESSMENT YEAR 2012-13. THE TRIBUNAL DIRECTED TO CHARGE INTEREST ON INTEREST FREE LOANS ADVANCED TO AE AT LIBOR + 20 0 BASE POINTS AND IN RESPECT OF CORPORATE GUARANTEE COMMISSION THE TRIBUNAL DIRE CTED THE ASSESSING OFFICER TO COMPUTE THE SAME @0.5%. 4.7.1 THE LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTL Y SUPPORTED THE FINDINGS OF ASSESSING OFFICER/DRP IN RESPECT OF TP ADJUSTMEN TS. HOWEVER, THE LD.DEPARTMENTAL REPRESENTATIVE FAIRLY ADMITTED THAT SIMILAR ISSUE HAD COME UP BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSES SMENT YEAR 2012-13. 12 ITA NO.556/MUM/2018(A.Y.2013-14) 12 4.7.2 WE HAVE CONSIDERED THE SUBMISSIONS MADE BY RI VAL SIDES AND HAVE EXAMINED THE ORDERS OF AUTHORITIES BELOW. WE HAVE ALSO CONSIDERED THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN AS SESSEES OWN CASE IN ITA NO.3046/MUM/2017(SUPRA). WE FIND THAT IN ASSESSMEN T YEAR 2012-13 TP ADJUSTMENT WAS MADE FOR THE SIMILAR REASONS. THE T RIBUNAL DECIDED THE ISSUE BY HOLDING AS UNDER:- 40. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD. AS REGARDS THE RATE AT WHICH INTEREST ON INTEREST FREE LOAN IS TO BE COMPUTED, WE FIND THAT LEARNED DRP HAS DIRECTED THE ASSESSING OFFICER TO COMPUTE INTER EST AT LIBOR PLUS 3%. WE FIND THAT WHILE DECIDING IDENTICAL ISSUE IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 200708 IN ITA NO.4778/MUM./2016, DATED 30TH APRIL 2019, THE TRIBU NAL HAS DIRECTED TO COMPUTE INTEREST ON INTEREST FREE LOAN ADVANCED TO THE AE AT LIBOR PLUS 200 BASIS POINTS. INSOFAR AS ADJUSTMENT ON ACCOUNT OF CORPORATE GUARANTEE COMMIS SION IS CONCERNED, THE TRIBUNAL HAS DIRECTED THE ASSESSING OFFICER TO COMPUTE THE CORPO RATE GUARANTEE FEE @ 0.5%. SIMILAR VIEW WAS EXPRESSED BY THE TRIBUNAL WHILE DECIDING ASSESS EES APPEAL IN ASSESSMENT YEAR 201112. RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS OF T HE CO ORDINATE BENCH, WE DIRECT THE ASSESSING OFFICER TO COMPUTE INTEREST ON INTEREST F REE LOAN TO AE AT LIBOR PLUS 200 BASIS POINTS AND CORPORATE GUARANTEE COMMISSION @ 0.5%. [EMPHASISED BY US] SINCE THERE IS NO CHANGE IN THE FACTS IN THE ASSESS MENT YEAR UNDER APPEAL, WE RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDIN ATE BENCH PARTLY ALLOW GROUND NO.VIII OF THE APPEAL IN SAME TERMS. THEREFORE, GROUND NO.VIII OF THE APPEAL IS PARTLY ALLOWED. GROUND IX: ASSESSING OFFER ERRED IN NOT FOLLOWING THE DIRECTIONS OF HONBLE DRP: WITHOUT PREJUDICE TO GROUND IX: GROUND X: DISALLOWANCE U/S 14A OF THE ACT AMOUNTING TO RS.53,680/- 4.8 THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESS EE SUBMITTED THAT GROUND NO.IX & X OF THE APPEAL ARE IN RESPECT OF DI SALLOWANCE MADE UNDER 13 ITA NO.556/MUM/2018(A.Y.2013-14) 13 SECTION 14A R.W.R 8D. BOTH THE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. THE LD.AUTHORIZED REPRESENTATIVE OF THE ASSESSEE PO INTED THAT THE DRP HAD DIRECTED THE ASSESSING OFFICER TO DELETE THE DISALL OWANCE OF RS.48,680/-. THE LD.AUTHORIZED REPRESENTATIVE OF THE ASSESSEE REFERR ED TO PARA 46.1 OF THE DRP DIRECTIONS. THE LD.AUTHORIZED REPRESENTATIVE OF TH E ASSESSEE POINTED THAT WHILE PASSING THE FINAL ASSESSMENT ORDER THE ASSESS ING OFFICER HAS NOT GIVEN EFFECT TO THE DIRECTIONS OF THE DRP. IF THE DIRECT IONS OF THE DRP ARE GIVEN EFFECT, THE AMOUNT OF DISALLOWANCE WOULD BE RESTRIC TED TO RS.5,000/- ONLY. 4.8.1 THE LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTL Y SUPPORTED THE ASSESSMENT ORDER. HOWEVER, THE LD.DEPARTMENTAL REP RESENTATIVE SUBMITTED THAT THE ISSUE CAN BE RESTORED TO ASSESSING OFFICER FOR VERIFICATION. 4.8.2 BOTH SIDES HEARD. WE FIND THAT THE DRP IN PA RA 46 OF THE DIRECTION HAS GIVEN ITS FINDINGS ON THE ISSUE. THE DRP HAS DIREC TED THE ASSESSING OFFICER TO DELETE THE DISALLOWANCE OF RS.48,680/-. HOWEVER, I T APPEARS THAT THE ASSESSING OFFICER HAS FAILED TO GIVE EFFECT TO WITH THE DIREC TIONS OF THE DRP ON THIS ISSUE. THE GROUND NO.IX & X OF THE APPEAL ARE RESTORED TO THE ASSESSING OFFICER TO GIVE EFFECT TO THE DIRECTIONS OF THE DRP ON THE ISS UE OF DISALLOWANCE UNDER SECTION 14A R.W.R. 8D. THE GROUNDS NO.IX AND X ARE ALLOWED FOR STATISTICAL PURPOSE IN THE TERMS AFORESAID . GROUND XI: ADDITION OF DISALLOWANCE U/S . 14A FOR T HE PURPOSE OF COMPUTING BOOK PROFIT U/S . 115JB OF THE ACT: RS. 53860/-. 4.9 THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESS EE SUBMITTED THAT THE ASSESSING OFFICER HAS ERRED IN CONSIDERING DISALLOW ANCE UNDER SECTION 14A OF THE ACT FOR THE PURPOSE OF COMPUTING PROFIT BOOK PR OFITS UNDER SECTION 115JB 14 ITA NO.556/MUM/2018(A.Y.2013-14) 14 OF THE ACT. THE LD.AUTHORIZED REPRESENTATIVE OF TH E ASSESSEE POINTED THAT IN VIEW OF RECENT DECISION OF SPECIAL BENCH IN THE CAS E OF ACIT VS. VIREET INVESTMENTS PVT. LTD. REPORTED AS 188 TTJ 1(DEL-TRI B)(SB), THE COMPUTATION OF BOOK PROFIT UNDER SECTION 115JB ARE TO BE MADE WITH OUT RESORTING TO COMPUTATION AS CONTEMPLATED UNDER SECTION 14A R.W. R. 8D. 4.9.1 THE LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTL Y SUPPORTED THE FINDINGS OF ASSESSING OFFICER AND PRAYED FOR DISMISSING THIS GROUND OF APPEAL. 4.9.2 BOTH SIDES HEARD. SINCE WE HAVE ALREADY RESTO RED THE ISSUE OF DISALLOWANCE UNDER SECTION 14A R.W.R. 8D TO THE ASS ESSING OFFICER FOR GIVING EFFECT TO THE ORDER OF DRP, THE GROUND NO.XI IS ALS O RESTORED BACK TO THE ASSESSING OFFICER FOR RECONSIDERATION IN LINE WITH THE DECISION OF SPECIAL BENCH IN THE CASE OF ACIT VS. VIREET INVESTMENTS PVT. LTD .(SUPRA). THE GROUND NO.XI OF THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. GROUND XII: SHORT GRANT OF TAX DEDUCTED AT SOURCE ( TDS) AMOUNTING TO RS.53,942/- 4.10 IN GROUND NO.XII, THE ASSESSEE HAS ASSAILED TH E ACTION OF ASSESSING OFFICER IN ALLOWING SHORT CREDIT OF TDS BY RS.53,94 2/-. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE SUBMITTED THAT THE I SSUE CAN BE RESTORED BACK TO THE ASSESSING OFFICER FOR VERIFICATION AND GRANT OF TDS CREDIT ACCORDINGLY. 4.10.1 THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITT ED THAT HE HAS NO OBJECTION IF THE ISSUE IS RESTORED TO ASSESSING OFF ICER FOR VERIFICATION. 4.10.2 THE LIMITED ISSUE IN GROUNDNO.XII OF THE AP PEAL IS WITH RESPECT TO SHORT GRANT OF TDS. THIS ISSUE IS RESTORED BACK TO ASSESSING OFFICER FOR 15 ITA NO.556/MUM/2018(A.Y.2013-14) 15 REVERIFICATION. THE ASSESSING OFFICER IS DIRECTED T O ALLOW TDS CREDIT AS PER ACTUAL RECORDS. THE GROUND OF APPEAL NO.XII IS ALLOWED FOR STATISTICA L PURPOSE. GROUND XIII: SHORT GRANT OF INTEREST U/S 244A OF TH E ACT: 4.11 IN GROUND NO.XIII OF THE APPEAL, THE ASSESSEE HAS ASSAILED THE FINDING OF ASSESSING OFFICER IN GRANTING SHORT INTEREST UNDER SECTION 244A OF THE ACT. THIS GROUND IS CONSEQUENTIAL. THEREFORE, THE SAME IS DISMISSED . 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLO WED IN THE TERMS AFORESAID. 6. THIS APPEAL WAS HEARD ON 22/01/2020. 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 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 TIME LIMIT FOR 16 ITA NO.556/MUM/2018(A.Y.2013-14) 16 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. THUS, IN LIGHT OF ABOVE FACTS AND THE DECISION OF C OORDINATE BENCH, THE PRESENT ORDER IS PRONOUNCED BEYOND THE PERIOD OF 90 DAYS. 17 ITA NO.556/MUM/2018(A.Y.2013-14) 17 7. THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. OR DER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) R ULES, 1962, BY PLACING THE DETAILS ON THE NOTICE BOARD. ORDER PRONOUNCED ON MONDAY THE 22ND DAY OF JUNE, 2 020. SD/- SD/- (N.K.PRADHAN) (VIKAS AWASTHY) $ / ACCOUNTANT MEMBER / JUDICIAL MEMBER / MUMBAI, 5 '/ DATED 22/06/2020 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