DCIT 9(3)(2), MUMBAI V. FUTURE RETAIL LTD, MUMBAI

ITA 5959/MUM/2016

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 6648 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 06-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Earning of tax free income; Capital receipt; TDS; Rule 8D
• Section: 143(3); 142(1); 14A; 40(a)(ia); 43(5); 143(1); 201; 143(2); 13; 22

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI C. N. PRASAD , J M & SHRI S . RIFAUR RAHMAN, AM ./ I.T.A. NO . 5959 / MUM/ 2016 ( / ASSESSMENT YEAR: 2012 - 13 ) M/S FUTURE RETAIL LTD. GROUND FLOOR, KNOWLEDGE HOUSE, OFF - JO GESHWARI VIKROLI LINK ROAD, SHYAM NAGAR, JOGESHWARI(E) MUMBAI - 400 060 / VS. A CIT RANGE 10(3)(2), AAYAKAR BHAVAN, M. K. ROAD, M UMBAI 400 020 ./ ./ PAN NO. A A A CP 6317 L ( / APPELLANT ) : ( / RESPONDENT ) & ./ I.T.A. NO . 867 / MUM/ 2017 ( / ASSESSMENT YEAR: 2012 - 13 ) ACIT RANGE 10(3)(2), AAYAKAR BHAVAN, M. K. ROAD, MUMBAI 400 020 / VS. M/S FUTURE RETAIL LTD. GROUND FLOOR, KNOWLEDGE HOUSE, OFF - JOGESHWARI VIKROLI LINK ROAD, SHYAM NAGAR, JOGE SHWARI(E) MUMBAI - 400 060 ./ ./ PAN NO. AAACP 6317 L ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI VIPUL JOSHI , AR / RESPONDENTBY : MRS. LEENA SHRIVASTAVA , DR 2 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. / DATE OF HEARING : 26.02 .2020 / DATE OF PRONOUNCEMENT : 1 1.08.2020 / O R D E R PER S. RIFAUR RAHMAN (ACCOUNTANT MEMBER) : THE PRESENT TWO ( 2 ) CROSS A PPEAL S HAVE BEEN FILED BY THE ASSESSEE AND REVENUE AGAINST THE ORDER OF COMMIS S IONER OF INCOME TAX ( APPEALS) - 16 , MUMBAI, I N SHO RT LD. CIT(A) DATED 30.07.2016 FOR AY 2012 - 13 RESPECTIVE LY. 2. SINC E THE ISSUES RAISED IN BOTH THE APPEALS ARE IDENTICAL, THEREFORE, FOR TH E SAKE OF CONVENIENCE, THESE APPEALS ARE CLUBBED, HEARD AND DISPOSED OF BY THIS CONSOLID ATED ORDE R. 3 . THE BRIEF FACTS OF THE CASE ARE, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND RETAILING IN READYMADE GARMENTS AND OTHER PRODUCTS AND FILED ITS RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 29.09.12 DECLARING TOTAL INC OME UNDER NORMAL PROVISIONS AT RS. 14,018,535/ - AND CLAIMED CURRENT YEAR LOSS OF RS. 157,157,446/ - . THE SAID RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1) OF THE ACT ACCEPTING ITS RETURNED 3 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. INCOME. LATER ON, THE CASE WAS SELECTED FOR SCRUTINY AND NOTI CE U/S 143(2) OF THE ACT DATED 08.08.2013 WAS ISSUED AND DULY SERVED ON THE ASSESSEE. SUBSEQUENTLY, NOTICE U/S 142(1) OF THE ACT ALONGWITH QUESTIONNAIRE AND SERVED ON THE ASSESSEE. IN RESPONSE, AR OF THE ASSESSEE ATTENDED AND FILED THE RELEVANT INFORMATION AS CALLED FOR. AFTER CONSIDERING THE SUBMISSION OF ASSESSEE, AO COMPLETED THE ASSESSMENT ORDER U/S 143(3) OF THE ACT AFTER MAKING THE VARIOUS DISALLOWANCES/ADDITIONS. 4. A GGRIEVED WITH THE ABOVE ORDER , ASSESSEE PREFERRED AN APPEAL BEFORE LD CIT(A) AND MA DE BEFORE HIM A DETAIL SUBMISSION. LD. C IT(A) AFTER CONSIDERING THE SUBMISSION OF ASSESSEE, PARTLY ALLOWED THE APPEAL OF ASSESSEE. 5 . AGGRIEVED W ITH THE ABOVE ORDER, ASSESSEE AND REVENUE ARE IN APPEAL BEFORE US. 6 . WITH REGARD TO DISALLOWANCE U/S 14A OF THE ACT, LD. AR APPEARING ON BEHALF OF THE ASSESSEE BROUGHT TO OUR NOTICE PARA 8 OF AO AND PARA 6.2 OF ORDER OF LD. CIT(A) AND SUBMITTED BEFORE US THAT THIS GROUND IS SQUARELY COVERED BY THE ORDER OF COORDINATE 4 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. BENCH OF HONBLE ITAT IN ITA 5594/MUM/2013 & 5476 /MUM/2013 FOR AY 2010 - 11 IN ASSESSEES OWN CASE, WHICH IS REPRODUCED BELOW: - WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THIS GROUND AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. SINCE FACTS OF THE CASE ARE EXACTLY SIMILAR TO THE A.Y. 2008 - 09& A.Y. 2009 - 10 FOR WHICH WE HAVE ALREADY GIVEN OUR FINDING INORDER OF A.Y. 2008 - 09. THEREFORE, WE HEREBY HOLD THAT IN THE CASE OF THE ASSESSEE, THE PROVISIONS OF SECTION14A R.W.R. 8D WILL NOT BE APPLICABLE IN REGARD TO INVESTMENTS MADE IN GROUP CONCERNI.E. SUBSIDIARY, ASSOCIATE CONCERN ETC. ACCORDINGLY, WE REMIT THE MATTER BACK TO THE FILE OF THE AO WITH A DIRECTION TO RE - COMPUTE THE DISALLOWANCE U/S 14A R.W.R. 8D AFTER DELETING INVESTMENTS MA DE BY THE ASSESSEE IN GROUP CONCERNI.E. SUBSIDIARY, ASSOCIATE CONCERN ETC FOR COMPUTING AVERAGE VALUE OF INVESTMENT. THE COMPANY HAS SUFFICIENT OWN FUNDS THEREFORE DISALLOWANCE UNDER SECOND LIMB OF RULE 8D (2) IS ALSO NOT WARRANTED. THEREFORE, THIS GROUND RAISED BY THE REVENUE IS DISMISSED. 7. LD. AR FURTHER SUBMITTED BEFORE US THAT THIS GROUND IS ALSO COVERED BY THE ORDER OF COORDINATE BENCH OF HONBLE ITAT IN 5 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. ITA NO. 1826 & 1435 /MUM/201 5 FOR AY 201 1 - 12 IN ASSESSEES OWN CASE, WHICH IS REPRODUCED BELOW: - WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THIS GROUND AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. SINCE FACTS OF THE CASE ARE EXACTLY SIMILAR TO THE A.Y. 2008 - 09, A.Y. 2009 - 10& 20 10 - 11 FOR WHICH WE HAVE ALREADY GIVEN OUR FINDING IN ORDER OF A.Y. 2008 - 09. THEREFORE, WE HEREBY HOLD THAT IN THE CASE OF THE ASSESSEE, THE PROVISIONS OF SECTION14A R.W.R. 8D WILL NOT BE APPLICABLE IN REGARD TO INVESTMENTS MADE IN GROUP CONCERN I.E. SUBSI DIARY, JOINT VENTURE, ASSOCIATE CONCERN ETC. ACCORDINGLY, WE REMIT THE MATTER BACK TO THE FILE OF THE AO WITH A DIRECTION TO RE - COMPUTE THE DISALLOWANCE U/S 14A R.W.R. 8D AFTER DELETING INVESTMENTS MADE BY THE ASSESSEE IN GROUP CONCERN I.E. SUBSIDIARY, JOI NT VENTURE, ASSOCIATE CONCERN ETC. THE COMPANY HAS SUFFICIENT OWN FUNDS THEREFORE DISALLOWANCE UNDER SECOND LIMB OF RULE 8D (2) IS ALSO NOT WARRANTED. IN VIEW OF THE ABOVE DETAILED FINDING, THIS GROUND OF APPEAL IS DISMISSED. 8 . LD. AR SUMMARIZED THE LEGA L PROPOSITION ON THE ISSUE OF 14A AS UNDER: - 6 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. 1. ADMITTEDLY THE LD. AO HAS NOT RECORDED ANY SATISFACTION BEFORE REJECTING THE CLAIM OF THE ASSESSEE. WHILE MAKING DISALLOWANCE U/S 14A, THE ASSESSING OFFICER HAS TO RECORD HIS OBJECTIVE SATISFACTION AND GIVE A CLEAR CUT FINDING AS TO HOW THE DISALLOWANCE COMPUTED BY THE ASSESSEE IS NOT CORRECT. WITHOUT SUCH EXERCISE, NO DISALLOWANCE U/S 14A CAN BE SUSTAINED. 2. WHERE THE ASSESSEE HAD OWNED / INTEREST FREE FUNDS MORE THAN THE AMOUNT OF INVESTMENTS MADE THE PRESUMPTION IS THAT THE INVESTMENTS WERE MADE OUT OF SUCH OWNED / INTEREST FREE FUNDS AND NOT BORROWED FUNDS. IN SUCH A SITUATION, NO DISALLOWANCE U/S 14A R.W.R. 8D (2) (II) COULD BE MADE. REF: CIT V/S RELIANCE UTILITIES AND POWER LTD. - [(2009) 3 13 ITR 340 (BOM)] AND CIT V/S HDFC BANK LTD. - [(2014) 366 ITR 0505 (BOM)] 3. ALMOST ENTIRE INVESTMENTS MADE BY THE ASSESSEE ARE IN SUBSIDIARY COMPANIES / GROUP CONCERNS WITH WHICH THE ASSESSEE HAD ENTERED INTO JOINT VENTURE / STRATEGIC ALLIANCE FOR STRATEGIC BUSINESS PURPOSES IN ORDER TO PROMOTE THE ASSESSEE'S BUSINESS AND ALSO HELP THE ASSESSEE GAIN CERTAIN MARKET SHARE IN THE BUSINESS SO AS TO STREAMLINE THE OPERATIONS OF THE GROUP AS A WHOLE. NEITHER THE AO NOR THE CIT (A) HAVE DISPUTED THESE BASI C FACTS. INVESTMENTS MADE IN ASSOCIATES / SUBSIDIARIES FOR STRATEGIC BUSINESS PURPOSES CANNOT BE CONSIDERED FOR THE PURPOSE OF DISALLOWANCE U/S 14A READ WITH RULE 8D. 4. FURTHER THE ASSESSEE HAS NOT INCURRED ANY EXPENDITURE FOR EARNING EXEMPT INCOME SINCE THE ENTIRE DIVIDEND WAS RECEIVED THROUGH ECS AND HENCE NO DISALLOWANCE CAN BE MADE FOR 7 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. ADMINISTRATIVE EXPENDITURE. - CANARA BANK V/S. ACIT - [(2014) 99 DTK 0036 (KAR)]: [(2015) 228 TAXMAN 0212 (KARN)] 5. IN ANY CASE AND WITHOUT PREJUDICE TO THE ABOVE, THE DISALLOWANCE CANNOT EXCEED THE AMOUNT OF THE EXEMPT INCOME EARNED. SECTION 14A OR RULE 8D CANNOT BE INTERPRETED TO MEAN THAT THE ENTIRE TAX EXEMPT INCOME IS TO BE DISALLOWED. THE PROVISION CANNOT BE READ IN SUCH A MANNER THAT IT SWALLOWS THE ENTIRE EXEMPT INCOME EARNED WITHIN ITS DEFINITION. 6. IN ANY CASE, INVESTMENTS WHICH DO NOT YIELD EXEMPT INCOME HAVE TO BE EXCLUDED FOR THE PURPOSE OF COMPUTING DISALLOWANCE U/S 14A OF THE ACT. 9. ON THE OTHER H AND, LD. DR FAIRLY CONCEDED THAT THE GROUND RAISED BY REV ENUE IS COVERED BY THE ORDER OF ITAT AND WITH REGARD TO APPEAL FILED BY ASSESSEE, HE SUPPORTED THE FINDINGS OF LD. CIT(A). 10 . CONSIDERED THE RIVAL SUBMISSION AND MATERIAL PLACED ON RECORD. WE FIND FROM THE RECORDS THAT THE IDENTICAL GROUND RAISED IN THE PRESENT APPEAL HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF ITAT IN ITA NO. 5594/MUM/2013 & 5476/MUM/2013 FOR AY 2010 - 11 AND ITA NO. 1826 & 1435/MUM/2015 FOR AY 2011 - 12 IN ASSESSEES OWN CASE. 8 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. 11 . T HEREFORE , RESPECTFULLY FOLLOWING THE ABOVE DECISIO N OF COORDINATE BENCH OF ITAT IN ASSESSEES OWN CASE WHICH IS APPLICABLE MUTATIS MUTANDIS IN THE PRESENT CASE, WE ARE INCLINED TO ACCEPT THE SUBMISSION OF LD. AR. ACCORDINGLY, THE GROUND NO. 1 RAISED BY THE REVENUE IS DISMISSED. 12. WITH REGARD TO GROUND NO. 1 RAISED BY THE ASSESSEE, WE NOTICE THAT LD. CIT(A) REMITTED THE ISSUE BACK TO AO BY FOLLOWING THE DIRECTION OF LD. CIT(A) IN EARLIER ASSESSMENT YEARS. ON CAREFUL VERIFICATION OF FACTS, WE ARE INCLINED TO ACCEPT THE DIRECTION OF LD. CIT(A) THAT ASSESSE E HAS INCURRED ADMINISTRATIVE EXPENSES P URELY FOR ADMINISTRATION OF ITS AFFAIRS. WE DO NOT AGREE WITH THE SUBMISSION OF LD. AR THAT ASSESSEE HAS NOT INCURRED ANY EXPENDITURE AND NOT WARRANTED TO REMIT THIS ISSUE BACK TO AO. THE INVESTMENT DOES REQUI RE CONS TANT MONITORING EVEN THOUGH IT IS MADE WITHIN THE GROUP CONCERN. SOMETIMES, THE METHOD APPLIED AS PER RULE 8D(2)(III) GIVES ABSURD RESULT, LIKE THE DISALLOWANCE IS MORE THAN THE ACTUAL ADMINISTRATIVE EXPENSES. THEREFORE, WE ARE DIRECTING AO TO DETERMINE TH E TOTAL ADMINISTRATIVE EXPENSES AND ALSO DETERMINE THE TOTAL INCOME 9 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. EARNED BY ASSESSEE INCLUDING TAXABLE AND EXEMPT INCOME , APPLY THE RATIO OF INCOME TO DETERMINE THE ADMINISTRATIVE EXPENSES AND CAN BE APPORTIONED TO EXEMPT INCOME. SIMULTANEOUSLY, CALCULAT E 0.5% OF THE INV ESTMENT AS PER RULE 8D(2)(III) OF THE RULE, IN APPLYING THE RULES, HE SHOULD CONSIDER ONLY THOSE INVESTMENT S WHICH HAS ACTUALLY EARNED DIVIDEND /EXEMPT INCOME. THEN COMPARE THE BOTH METHOD OF CALCULATION AND IN ORDER TO APPLY PROVISION OF SECTION 14A, HE SHOULD CONSIDER THE AMOUNT CALCULATED ABOVE SAID TWO METHODS WHICHEVER IS LESS . ACCORDINGLY, GROUND NO. 1 RAISED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 1 3 . WITH REGARD TO DISALLOWANCE U/S 40(A)(IA) OF THE ACT ON ACCOUNT OF NON - DE DUCTION OF TDS ON CREDIT CARD COMMISSION CHARGED BY BANK ON CREDIT CARD TRANSACTIONS, LD. AR APPEARING ON BEHALF OF THE ASSESSEE BROUGHT TO OUR NOTICE PARA 7 OF AO AND PARA 6.3.2 OF ORDER OF LD. CIT(A) AND SUBMITTED BEFORE US THAT THIS GROUND IS SQUARELY C OVERED BY THE ORDER OF COORDINATE BENCH OF HONBLE ITAT IN ITA 5594/MUM/2013 & 5476/MUM/2013 FOR AY 2010 - 11 IN ASSESSEES OWN CASE, WHICH IS REPRODUCED BELOW: - 10 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THIS GROUND AND WE HAVE ALSO PERUSED THE MATE RIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. AT THE OUTSET, WE FIND THAT THE ASSESSEE HAS CORRECTLY PLACED RELIANCE ON THE DECISION OF THE CO - ORDINATE BENCH IN THE CASE OF ACIT V. JET AIRWAYS INDIA LTD (146 ITD 682) WHEREI N IT WAS HELD THAT PAYMENTS TO BANKS FOR UTILIZATION OF CREDIT CARD FACILITIES ARE IN NATURE OF BANK CHARGES, AND NOT COMMISSION, AND THEREFORE, NO TAX IS DEDUCTIBLE AT SOURCE UNDER SECTION 194H. THE DELHI HIGH COURT IN THE CASE OF JDS APPARELS (P.) LTD (370 ITR 454) HAS HELD THAT COMMISSION' TO BANK ON PAYMENTS RECEIVED FROM CUSTOMERS WHO HAD MADE PURCHASES THROUGH CREDIT CARDS IS NOT LIABLE TO TDS UNDER SECTION 194H OF THE ACT. THIS ISSUE HAS ALSO BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY VARIOUS TRIB UNALS IN THE FOLLOWING CASES: GEMS PARADISE V. ACIT [IT APPEAL NO. 746 (JP) OF 2011, DATED 2.2.2012] BHANDARI JEWELLERS V. ACIT [IT APPEAL NO. 745 (JP) OF 2011, DATED 2 - 2 - 2012] TATA TELESERVICES LTD. V. DY. CIT [2013] 140 ITD 451/29 TAXMANN.COM 261 (BAN G.) (PARA 8) AND DY. CIT V. VAH MAGNA RETAIL (P.) LTD [IT APPEAL NO.905 (HYD.) OF 2011, DATED 10 - 4 - 2012] 11 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. RESPECTFULLY FOLLOWING THE DECISIONS CITED ABOVE, IT IS HELD THAT THE COMMISSION PAID TO THE CREDIT CARD COMPANIES IS NOT SUBJECT TO THE TDS PROVISIO NS OF THE ACT. ACCORDINGLY THE DISALLOWANCE MADE BY THE ASSESSING OFFICER CANNOT BE SUSTAINED AND THE ORDER OF THE CIT(APPEALS) DELETING THE AFORESAID DISALLOWANCE, IS UPHELD. THEREFORE, THESE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 14 . LD. AR FURTHER SUBMITTED BEFORE US THAT THIS GROUND IS ALSO COVERED BY THE ORDER OF COORDINATE BENCH OF HONBLE ITAT IN ITA NO. 1826 & 1435/MUM/2015 FOR AY 2011 - 12 IN ASSESSEES OWN CASE, WHICH IS REPRODUCED BELOW: - WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THIS GROUND AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. SINCE FACTS OF THE CASE ARE EXACTLY SIMILAR TO THE A.Y. 2010 - 11 FOR WHICH WE HAVE ALREADY GIVEN OUR FINDING IN THE SAID ABOVE ORDER. ACC ORDINGLY THE DISALLOWANCE MADE BY THE ASSESSING OFFICER CANNOT BE SUSTAINED AND THE ORDER OF THE CIT(APPEALS) DELETING THE AFORESAID DISALLOWANCE, IS UPHELD. ACCORDINGLY THESE GROUNDS STANDS DISMISSED. 15 . ON THE OTHER HAND, LD. DR FAIRLY CONCEDED THAT THI S GROUND IS COVERED BY THE ORDER OF ITAT. 12 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. 16 . CONSIDERED THE RIVAL SUBMISSION AND MATERIAL PLACED ON RECORD. WE FIND FROM THE RECORDS THAT THE IDENTICAL GROUND RAISED IN THE PRESENT APPEAL HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF ITAT IN ITA NO . 5594/MUM/2013 & 5476/MUM/2013 FOR AY 2010 - 11 AND ITA NO. 1826 & 1435/MUM/2015 FOR AY 2011 - 12 IN ASSESSEES OWN CASE. 1 7 . T HEREFORE , RESPECTFULLY FOLLOWING THE ABOVE DECISION OF COORDINATE BENCH OF ITAT IN ASSESSEES OWN CASE WHICH IS APPLICABLE MUTATIS M UTANDIS IN THE PRESENT CASE, WE ARE INCLINED TO ACCEPT THE SUBMISSION OF LD. AR. ACCORDINGLY, GROUND NO. 2 TO 3 FILED BY THE REVENUE ARE DISMISSED. 1 8 . WITH REGARD TO ADDITION OF AMOUNT FORFEITED BY ASSESSEE ON SHARE WARRANTS U/S 43(5) OF THE ACT, LD. AR APPEARING ON BEHALF OF THE ASSESSEE BROUGHT TO OUR NOTICE PARA 6 OF AO AND PARA 6.4.4 TO 6.4.5 OF ORDER OF LD. CIT(A) AND SUBMITTED BEFORE US THAT THIS GROUND IS SQUARELY COVERED BY THE ORDER OF COORDINATE BENCH OF HONBLE ITAT IN ITA 5594/MUM/2013 & 5476/ MUM/2013 FOR AY 2010 - 11 IN ASSESSEES OWN CASE, WHICH IS REPRODUCED BELOW: - 13 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THESE GROUNDS AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE REVENUE AUTHORITIES. LD. DR RELIED UPON THE ORDER OF THE AO. WHEREAS ON THE CONTRARY LD. AR SUBMITTED THAT THE AFORESAID AMOUNT RECEIVED ON THE ISSUE OF OPTIONALLY CONVERTIBLE WARRANTS UNDISPUTEDLY IS A CAPITAL RECEIPT AND THE CHARACTER OF SUCH RECEIPT ON FORFEITURE ON ACCOUNT OF THE NON EXERCISE OF THE OPTION TO CONVERT THE WARRANT TO EQUITY SHARES COULD NOT CHANGE THE CHARACTER OF RECEIPT. THE SAME REFLECTED IN THE BOOKS UNDER THE HEAD 'CAPITAL RESERVE' AND THIS FACT HAS ALSO BEEN REFERRED BY THE AUDITORS IN THEIR REPORT. W E HAVE ALSO CAREFULLY CONSIDERED THE SUBMISSIONS AND PERUSED THE RECORDS. IN THE PRESENT CASE, IT IS UNDISPUTED THAT THE AMOUNT OF RS. 63,25,97,200/ - HAD BEEN RECEIVED BY THE ASSESSEE ON ACCOUNT OF FORFEITURE OF OPTIONALLY CONVERTIBLE WARRANTS WHICH HAD BE EN SHOWN AS CAPITAL RECEIPTS BY THE ASSESSEE . THE COMPANY HAD ISSUED WARRANTS DURING THE FINANCIAL YEAR 2007 - 08 ON ACCOUNT OF WHICH THE INITIAL AMOUNT OF RS. 50/ - EACH WARRANT HAD BEEN RECEIVED BY THE COMPANY AND SINCE THE INVESTORS WERE UNABLE TO PAY THE SUBSEQUENT AMOUNTS, THE ASSESSEE COMPANY FORFEITED THE OPTIONALLY CONVERTIBLE WARRANTS AFTER GIVING A FINAL SHOW CAUSE TO THEM. THE ASSESSING 14 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. OFFICER HAD PROVIDED OPPORTUNITY TO THE ASSESSEE TO EXPLAIN AS TO WHY THE AMOUNT OF RS. 63,25,97,200/ - SHOULD NOT BE CONSIDERED AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. THE ASSESSING OFFICER CONCLUDED THAT IN THE INSTANT CASE ASSESSEE MADE RICHER BY THE AMOUNT OF FORFEITURE. KEEPING IN THE VIEW THE FACTS MENTIONED HERE, RS. 63,25,97,200/ - IS CONSIDERED AS REVENUE RECEIPT AND INCOME IN THE HANDS OF THE ASSESSEE UNDER THE HEAD INCOME FROM OTHER SOURCES FOR THE CURRENT YEAR. WE FURTHER FIND THAT IT IS NOT CLEAR AS TO HOW THE RECEIPT ON ACCOUNT OF FORFEITURE OF WARRANTS HAS BEEN TREATED AS INCOME FROM OTH ER SOURCES. IT IS UNDISPUTED THAT THE AMOUNT RECEIVED BY THE ASSESSEE WAS ON ACCOUNT OF PART PAYMENT OF CONVERTIBLE WARRANTS. FROM THE NATURE OF THE RECEIPT IT IS ABUNDANTLY CLEAR THAT THE AMOUNT WHICH HAS BEEN RECEIVED IS IN THE NATURE OF CAPITAL RECEIPTS . SEVERAL JUDICIAL PRONOUNCEMENTS WERE RELIED UPON BY THE LD. COUNSEL OF THE ASSESSEE AND THE LD. CIT(A) FOR THE PROPOSITION THAT RECEIPT ON ACCOUNT OF FORFEITURE HAS TO BE CONSIDERED ONLY AS A CAPITAL RECEIPT WHICH ARE AS UNDER. A. MULTAN ELECTRIC UPPLY CO. LTD. [(1945) 13 ITR 457 (LAH)] B. ASIATIC OXYGEN LTD. V/S. DY. CIT [(1994) 49 ITD 355 (CAL)] 15 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. C. PRISM CEMENT LTD. V/S. JCIT [(2006) 101 ITD 103 (MUM)] D. DEPAKFERTILISERS AND PETROCHEMICALS COPN. LTD. V/S. DCIT [(2009) 116 ITD 372 (MUM)] E. DCIT V/S. BRIJLAXMI LEASING & FINANCE LTD. [(2009) 118 ITD 546 (AHD)] F. GRAVISS HOSPITALITY LTD. V/S. DY. CIT [(2015) 53 TAXMANN.COM 63 (MUM TRIB.)] G. SUNITA GUPTA SHARE BORKERS LIMITED VS. ACIT IN ITA NO.4188/DEL/2010 VIDE ORDER DATED 7.12.2011. THE ABOVE CASE LAWS AMP LY SUPPORT THE PROPOSITION THAT AMOUNT RECEIVED AS A CAPITAL RECEIPT TOWARD FINANCIAL INSTRUMENTS LIKE WARRANTS, SHARE CAPITAL ETC. CANNOT BE TREATED AS REVENUE RECEIPTS. SINCE THE ASSESSEE COMPANY IS NOT IN THE BUSINESS OF SELLING OF SHARES. IT HAS BEEN H ELD IN THE JUDICIAL PRONOUNCEMENTS THAT IN THE CASE OF ANY SUCH FORFEITURE MADE, THE SAME CANNOT BE TAXED AS A REVENUE RECEIPT IF THIS AMOUNT HAS BEEN TRANSFERRED TO THE CAPITAL RESERVE ACCOUNT IN THE BALANCE SHEET. IN THE PRESENT SET OF FACTS IT IS OBSERV ED THAT THE VARIOUS FACTS RELATED TO ISSUE OF WARRANT PART PAYMENT OF THE AMOUNTS BY THE INVESTORS, NOTICE FOR FORFEITURE ETC. HAVE NOT BEEN DISPUTED BY THE ASSESSING OFFICER. THE BASIC NATURE OF THE TRANSACTION RELATES TO RAISING OF CAPITAL THROUGH 16 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. CONVER TIBLE WARRANTS. THE AMOUNT FORFEITED ON ACCOUNT OF NON PAYMENT OF SUBSEQUENT AMOUNTS CANNOT BE TREATED AS A INCOME OF THE ASSESSEE IN VIEW OF THE VARIOUS JUDICIAL PRONOUNCEMENTS AS WELL AS THE BASIC NATURE OF THE RECEIPT. THUS, WE HOLD THAT AMOUNT RECEIVED ON ACCOUNT OF FORFEITURE OF AMOUNT DUE TO NON PAYMENT TOWARDS WARRANTS ISSUE HAS TO BE TREATED AS CAPITAL RECEIPT AND SINCE THE ASSESSEE HAS ALSO TRANSFERRED IT TO THE CAPITAL RESERVE ACCOUNT IN THE BALANCE SHEET, THE AMOUNT CANNOT BE TAXED AS INCOME. WE FURTHER FIND THAT ASSESSING OFFICER HAS OBSERVED IN THE ASSESSMENT ORDER THAT THIS ADDITION SHOULD BE TREATED AS INCOME FROM OTHER SOURCES AS THE ASSESSEE HAS BECOME RICHER BUT THE DEPARTMENTAL REPRESENTATIVE COULD NOT THROW ANY LIGHT ON THIS ASPECT. IT SO LELY INDICATES THAT ASSESSING OFFICER WAS NOT CERTAIN ABOUT THE NATURE OF THESE RECEIPTS. THUS, CONSIDERING THE ABOVE FACTS, WE COME TO THE CONCLUSION THAT THE NATURE OF RECEIPT IN THIS CASE OF RS. 63,25,97,200/ - HAS CLEARLY BEEN ESTABLISHED AS BEING THE C APITAL RECEIPT. THE PROVISION OF INCOME TAX ACT DOES NOT PROVIDE FOR TAXATION OF SUCH CAPITAL RECEIPT, EVEN IF IT IS FORFEITURE OF AMOUNT. ACCORDINGLY, IN THE BACKGROUND OF THE AFORESAID DISCUSSIONS AND PRECEDENTS, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). ACCORDINGLY, WE UPHOLD THE SAME. 17 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. THEREFORE, THESE GROUNDS RAISED BY THE REVENUE ARE DISMISSED. 19 . ON THE OTHER HAND, LD. DR FAIRLY CONCEDED THAT THIS GROUND IS COVERED BY THE ORDER OF ITAT. 20 . CONSIDERED THE RIVAL SUBMISSION AND MATE RIAL PLACED ON RECORD. WE FIND FROM THE RECORDS THAT THE IDENTICAL GROUND RAISED IN THE PRESENT APPEAL HAS ALREADY BEEN DECIDED BY THE COORDINATE BENCH OF ITAT IN ITA NO. 5594/MUM/2013 & 5476/MUM/2013 FOR AY 2010 - 11 IN ASSESSEES OWN CASE. 21 . T HEREFORE , R ESPECTFULLY FOLLOWING THE ABOVE DECISION OF COORDINATE BENCH OF ITAT IN ASSESSEES OWN CASE WHICH IS APPLICABLE MUTATIS MUTANDIS IN THE PRESENT CASE, WE ARE INCLINED TO ACCEPT THE SUBMISS ION OF LD. AR. ACCORDINGLY, THE GROUND NO 4 TO 7 RAISED BY REVENUE AR E DISMISSED. 22 . IN THE NET RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL FILED BY THE REVENUE IS DISMISSED . 18 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. 23 . IT IS PERTINENT TO MENTION HERE THAT THIS ORDER IS PRONOUNCED AFTER A PERIOD OF 90 DAYS FROM TH E DATE OF CONCLUSION OF THE HEARING. IN THIS REGARD, WE PLACE RELIANCE ON THE DECISION OF CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF JSW LTD IN ITA NOS. 6264 & 6103/MUM/2018 DATED 14.5.2020, WHEREIN THIS ISSUE HAS BEEN ADDRESSED IN DETAIL ALLOWING T IME TO PRONOUNCE THE ORDER BEYOND 90 DAYS FROM THE DATE OF CONCLUSION OF HEARING BY EXCLUDING THE DAYS FOR WHICH THE LOCKDOWN ANNOUNCED BY THE GOVERNMENT WAS IN FORCE. THE RELEVANT OBSERVATIONS OF THIS TRIBUNAL IN THE SAID BINDING PRECEDENT ARE AS UNDER: - 7. HOWEVER, BEFORE WE PART WITH THE MATTER, WE MUST DEAL WITH ONE PROCEDURAL ISSUE AS WELL. WHILE HEARING OF THESE APPEALS WAS CONCLUDED ON 7TH JANUARY 2020, THIS ORDER THEREON IS BEING PRONOUNCED TODAY ON 14 TH DAY OF MAY, 2020, MUCH AFTER THE EXPIRY OF 90 DAYS FROM THE DATE OF CONCLUSION OF HEARING. WE ARE ALSO ALIVE TO THE FACT THAT RULE 34(5) OF THE INCOME TAX APPELLATE TRIBUNAL RULES 1963, WHICH DEALS WITH PRONOUNCEMENT OF ORDERS, PROVIDES AS FOLLOWS: (5) THE PRONOUNCEMENT MAY BE IN ANY OF THE FOLLOWING MAN NERS: (A) THE BENCH MAY PRONOUNCE THE ORDER IMMEDIATELY UPON THE CONCLUSION OF THEHEARING. 19 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. (B) IN CASE WHERE THE ORDER IS NOT PRONOUNCED IMMEDIATELY ON THE CONCLUSION OF THE HEARING, THE BENCH SHALL GIVE A DATE FORPRONOUNCEMENT. (C ) IN A CASE WHERE NO DATE OF PRONOUNCEMENT IS GIVEN BY THE BENCH, EVERY ENDEAVOUR SHALL BE MADE BY THE BENCH TO PRONOUNCE THE ORDER WITHIN 60 DAYS FROM THE DATE ON WHICH THE HEARING OF THE CASE WAS CONCLUDED BUT, WHERE IT IS NOT PRACTICABLE SO TO DO ON THE GROUND OF EXCEPTIONAL AN D EXTRAORDINARY CIRCUMSTANCES OF THE CASE, THE BENCH SHALL FIX A FUTURE DAY FOR PRONOUNCEMENT OF THE ORDER, AND SUCH DATE SHALL NOT ORDINARILY (EMPHASIS SUPPLIED BY US NOW) BE A DAY BEYOND A FURTHER PERIOD OF 30 DAYS AND DUE NOTICE OF THE DAY SO FIXED SHALL BE GIVEN ON THE NOTICEBOARD. 8 . QUITE CLEARLY, ORDINARILY THE ORDER ON AN APPEAL SHOULD BE PRONOUNCED BY THE BENCH WITHIN NO MORE THAN 90 DAYS FROM THE DATE OF CONCLUDING THE HEARING. IT IS, HOWEVER, IMPORTANT TO NOTE THAT THE EXPRESSION ORDINARILY HA S BEEN USED IN THE SAID RULE ITSELF. THIS RULE WAS INSERTED AS A RESULT OF DIRECTIONS OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHIVSAGAR VEG RESTAURANT VS ACIT [(2009) 317 ITR 433 (BOM)] WHEREIN THEIR LORDSHIPS HAD, INTER ALIA, DIRECTED THAT W E, THEREFORE, DIRECT THE PRESIDENT OF THE APPELLATE TRIBUNAL TO FRAME AND LAY DOWN THE GUIDELINES IN THE SIMILAR LINES AS ARE LAID DOWN BY THE APEX COURT IN THE CASE OF ANIL RAI (SUPRA) AND TO ISSUE APPROPRIATE ADMINISTRATIVE DIRECTIONS TO ALL THE BENCHES OF THE TRIBUNAL IN THAT BEHALF . WE HOPE AND TRUST THAT SUITABLE GUIDELINES SHALL BE FRAMED AND ISSUED BY THE PRESIDENT OF THE APPELLATE TRIBUNAL WITHIN SHORTEST REASONABLE TIME AND FOLLOWED STRICTLY BY ALL THE BENCHES OF THE TRIBUNAL. IN THE MEANWHILE ( EMP HASIS, BY UNDERLINING, SUPPLIED BY US NOW ), ALL THE REVISIONAL AND APPELLATE AUTHORITIES UNDER THE INCOME - TAX ACT ARE DIRECTED TO DECIDE MATTERS HEARD BY THEM WITHIN A PERIOD OF THREE MONTHS FROM THE DATE CASE IS CLOSED FOR JUDGMENT . IN THE RULED SO FRAME D, AS A RESULT OF THESE DIRECTIONS, THE EXPRESSION ORDINARILY HAS BEEN INSERTED IN THE REQUIREMENT TO PRONOUNCE THE ORDER WITHIN A PERIOD OF 90 DAYS. THE QUESTION THEN ARISES WHETHER THE PASSING OF THIS ORDER, BEYOND NINETY DAYS, WAS NECESSITATED BY ANY EXTRAORDINARY CIRCUMSTANCES. 9 . LET US IN THIS LIGHT REVERT TO THE PREVAILING SITUATION IN THE 20 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. COUNTRY. ON 24TH MARCH, 2020, HONBLE PRIME MINISTER OF INDIA TOOK THE BOLD STEP OF IMPOSING A NATIONWIDE LOCKDOWN, FOR 21 DAYS, TO PREVENT THE SPREAD OF COV ID 19 EPIDEMIC, AND THIS LOCKDOWN WAS EXTENDED FROM TIME TO TIME. AS A MATTER OF FACT, EVEN BEFORE THIS FORMAL NATIONWIDE LOCKDOWN, THE FUNCTIONING OF THE INCOME TAX APPELLATE TRIBUNAL AT MUMBAI WAS SEVERELY RESTRICTED ON ACCOUNT OF LOCKDOWN BY THE MAHARAS HTRA GOVERNMENT, AND ON ACCOUNT OF STRICT ENFORCEMENT OF HEALTH ADVISORIES WITH A VIEW OF CHECKING SPREAD OF COVID 19. THE EPIDEMIC SITUATION IN MUMBAI BEING GRAVE, THERE WAS NOT MUCH OF A RELAXATION IN SUBSEQUENT LOCKDOWNS ALSO. IN ANY CASE, THERE WAS UNP RECEDENTED DISRUPTION OF JUDICIAL WOK ALL OVER THE COUNTRY. AS A MATTER OF FACT, IT HAS BEEN SUCH AN UNPRECEDENTED SITUATION, CAUSING DISRUPTION IN THE FUNCTIONING OF JUDICIAL MACHINERY, THAT HONBLE SUPREME COURT OF INDIA, IN AN UNPRECEDENTED ORDER IN THE HISTORY OF INDIA AND VIDE ORDER DATED 6.5.2020 READ WITH ORDER DATED 23.3.2020, EXTENDED THE LIMITATION TO EXCLUDE NOT ONLY THIS LOCKDOWN PERIOD BUT ALSO A FEW MORE DAYS PRIOR TO, AND AFTER, THE LOCKDOWN BY OBSERVING THAT IN CASE THE LIMITATION HAS EXPI RED AFTER 15.03.2020 THEN THE PERIOD FROM 15.03.2020 TILL THE DATE ON WHICH THE LOCKDOWN IS LIFTED IN THE JURISDICTIONAL AREA WHERE THE DISPUTE LIES OR WHERE THE CAUSE OF ACTION ARISES SHALL BE EXTENDED FOR A PERIOD OF 15 DAYS AFTER THE LIFTING OF LOCKDOWN . HONBLE BOMBAY HIGH COURT, IN AN ORDER DATED 15TH APRIL 2020, HAS, BESIDES EXTENDING THE VALIDITY OF ALL INTERIM ORDERS, HAS ALSO OBSERVED THAT, IT IS ALSO CLARIFIED THAT WHILE CALCULATING 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 , AND ALSO OBSERVED THAT ARRANGEMENT CONTINUED BY AN ORDER DATED 26TH MARCH 2020 TILL 30TH APRIL 2020 SHALL CONTINUE FURTHER TI LL 15TH JUNE 2020 . IT HAS BEEN AN UNPRECEDENTED SITUATION NOT ONLY IN INDIA BUT ALL OVER THE WORLD. GOVERNMENT OF INDIA HAS, VIDE NOTIFICATION DATED 19 TH FEBRUARY 2020, TAKEN THE STAND THAT, THE CORONAVIRUS SHOULD BE CONSIDERED A CASE OF NA TURAL CALAMITY AND FMC (I.E. FORCE MAJEURE CLAUSE) MAYBE INVOKED, WHEREVER CONSIDERED APPROPRIATE, FOLLOWING THE DUE PROCEDURE. THE TERM FORCE MAJEURE HAS BEEN DEFINED IN BLACKS LAW DICTIONARY, AS AN EVENT OR EFFECT THAT CAN BE NEITHER ANTICIPATED NO R CONTROLLED WHEN SUCH IS THE POSITION, AND IT IS OFFICIALLY SO NOTIFIED BY THE GOVERNMENT OF INDIA AND THE COVID - 19 EPIDEMIC HAS BEEN NOTIFIED AS A DISASTER UNDER THE NATIONAL DISASTER MANAGEMENT ACT, 2005, AND ALSO IN THE LIGHT OF THE DISCUSSIONS ABOVE, THE 21 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. PERIOD DURING WHICH LOCKDOWN WAS IN FORCE CAN BE ANYTHING BUT AN ORDINARYPERIOD. 1 0 .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 9 0 DAYS, DISREGARDING 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 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 THE BASIS OF PRAGMATISM, AND THAT IS HOW THE LAW IS REQUIRED TO INTERPRETED. THE INTE RPRETATION SO ASSIGNED BY US IS NOT ONLY IN CONSONANCE WITH THE LETTER AND SPIRIT 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 UNPRECEDENTED DISRUPTION IN THE FUNCTION ING OF OUR JUSTICE DELIVERY SYSTEM. UNDOUBTEDLY, IN THE CASE OF OTTERS CLUB VS DIT [(2017) 392 ITR 244 (BOM)] , HONBLE BOMBAY HIGH COURT DID NOT APPROVE AN ORDER BEING PASSED BY THE TRIBUNAL BEYOND A PERIOD OF 90 DAYS, BUT THEN IN THE PRESENT SITUATION HON BLE BOMBAY HIGH COURT ITSELF HAS, VIDE JUDGMENT DATED 15 TH 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 SUOMOTU 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 N ORMAL TIME LIMITS ARE TO REMAIN IN FORCE. IN OUR CONSIDERED VIEW, EVEN WITHOUT THE WORDS ORDINARILY,INTHELIGHTOFTHEABOVEANALYSISOFTHELEGALPOSITION, THEPERIODDURINGWHICH 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 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 CANNOT 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 WHEN THE HEARING IS CONCLUDED AND THE POINT OF TIME WHEN THE 22 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. ORDER THE REON IS BEING FINALIZED, BUT THEN, IN OUR CONSIDERED VIEW, NO SUCH EXERCISE WAS REQUIRED TO BE CARRIED OUT ON THE FACTS OF THIS CASE. 11. TO SUM UP, THE APPEAL OF THE ASSESSEE IS ALLOWED, AND APPEAL OF THE ASSESSING OFFICER IS DISMISSED. ORDER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1962, BY PLACING THE DETAILS ON THE NOTICEBOARD. 24 . RESPECTFULLY FOLLOWING THE AFORESAID JUDICIAL PRECEDENT, WE PROCEED TO PRONOUNCE THIS ORDER BEYOND A PERIOD OF 90 DAYS FROM THE DATE OF CONCLUSION OF HEARING. 25 . ORDER PRONOUNCED AS PER RULE 34(5) OF ITAT RULES AND BY PLACING THE PRONOUNCEME NT LIS T IN THE NOTICE BOARD ON 11.08.2020 . S D/ - S D/ - (C. N. PRASAD) (S. RIFAUR RAHMAN ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED : 11.08 .2020 SR.PS. DHANANJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDEN T 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 23 I.T.A. NO. 5959/MUM/2016 & ITA NO. 867/MUM/2017 M/S FUTURE RETAIL LTD. 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MU MBAI