Manas Ranjan Mohanty, Bhubaneswar V. ACIT, Circle-1(2), Bhubaneswar

ITSSA 52/CTK/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 0723 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 04-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 19-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K GAUTAM
• Assessee Lawyers: P C SETHI
• Keywords: Search and seizure; Reassessment proceedings
• Section: 143(3); 153A; 153C; 132

Judgement Text

P A G E 1 | 10 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI CHANDRA MOHAN GARG , JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER IT (SS) A NO S . 52 & 53 /CTK/201 7 ASSESSMENT YEAR S : 20 03 - 2004 & 2005 - 06 MANAS RANJAN MOHANTY, PLOT NO.1680, NILAKANTHA NAGAR, BHUBANESWAR. VS. ACIT, CIRCLE - 1(2), BHUBANESWAR. PAN/GIR NO. AHCPM 5298 B (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.C.SETHI , AR REVENUE BY : SHRI M.K.GAUTAM, CIT DR DATE OF HEARING : 19 / 0 2 / 20 20 DATE OF PRONOUNCEMENT : 04 / 0 6 /20 20 O R D E R PER C.M.GARG,JM TH ESE ARE APPEAL S FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDER S OF THE CIT(A), 2 , BHUBANESWAR BOTH DATED 10.3.2017 FOR THE ASSESSMENT YEAR S 2003 - 04 & 2005 - 06 . ADMISSION OF ADDITIONAL GROUNDS : 2 . WE HAVE HEARD THE RIVAL SUBMISSIONS ON THE APPLICATION SUBMITTED BY THE ASSESSEE FOR ADMISSION OF ADDITIONAL GROUND S RAISED IN BOTH THE ASSESSMENT YEARS . LD A.R. SUBMITTED THAT THE ASSESSEE WANTS TO RAISE A LEGAL GROUND BY WAY OF ADDITIONAL GROUND CHALLENGING THE INITIATION OF REASSESSMENT PROCEEDINGS U/S.153C R.W.S 153A OF THE ACT. PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NTP C, 229 ITR 383 (SC), LD COUNSEL SUBMITTED THAT WINCE THE GROUND SOUGHT TO BE RAISED BY THE ASSESSEE IS PURELY A LEGAL GROUND, WHICH CAN BE IT(SS)A NO.52 & 53 /CTK/2017 ASSESSMENT YEAR S : 2003 - 2004 & 2005 - 06 P A G E 2 | 10 ADMITTED AND ADJUDICATED ON THE BASIS OF MATERIAL ALREADY AVAILABLE ON RECORD WITHOUT ANY EXTRANEOUS MATERIAL, THEREF ORE, SAME MAY KINDLY BE ADMITTED FOR CONSIDERATION AND ADJUDICATION. 3 . OPPOSING TO THE APPLICATION FOR ADMISSION OF ADDITIONAL GROUND, LD CIT DR SUBMITTED THAT SINCE THIS LEGAL PROVISION HAS NOT BEEN RAISED BY THE ASSESSEE NEITHER BEFORE THE LD CIT(A) NO R BEFORE THE AO, THEREFORE, SAME CANNOT BE ALLOWED TO BE CONSIDERED AT THIS BELATED STAGE BEFORE THE TRIBUNAL. 4 . PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NTPC (SUPRA), LD A.R. SUBMITTED THAT THE ASSESSEE IS ALLOWABLE TO RAI SE OR AGITATE LEGAL GROUND FOR THE FIRST TIME BEFORE THE TRIBUNAL AND THE SAME GOES TO THE ROOT OF THE MATTER AND CAN BE DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD, THEREFORE, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE MAY KINDLY BE ADMITTED FO R CONSIDERATION AND ADJUDICATION. 5 . ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS, FIRST OF ALL, WE MAY POINT OUT THAT THE ASSESSEE WANTS TO RAISE FOLLOWING LEGAL GROUNDS FOR ADMISSION AND CONSIDERATION: THAT NO SEARCH AND SEIZURE HAS BEEN CONDUCTED IN THE PREMISES OF SIKHYA O ANUSANDHAN FROM WHERE THE ALLEGED BOOKS OF ACCOUNT AND DOCUMENTS HAS BEEN SEIZED ON THE BASIS OF WHICH NOTICE UNDER SECTION 153C OF THE ACT HAS BEEN ISSUED AND FOR WHICH THE ASSESSMENT ORDER IS LIABLE TO BE QUASHED. 6 . ON A VIGIL ANT READING OF ABOVE GROUND SOUGHT TO BE RAISED BY THE ASSESSEE FOR THE FIRST TIME BEFORE THE TRIBUNAL, WE CLEARLY OBSERVE THAT THE ASSESSEE WANTS TO AGITATE AND RAISE A LEGAL ISSUE BY CONTENDING THAT NO SEARCH AND SEIZURE OPERATIONS HAVE BEEN CONDUCTED IN THE PREMISES OF SIKSHA O ANUSANDHAN FROM IT(SS)A NO.52 & 53 /CTK/2017 ASSESSMENT YEAR S : 2003 - 2004 & 2005 - 06 P A G E 3 | 10 WHERE ALLEGED BOOKS AND DOCUMENTS HAVE BEEN SEIZED ON THE BASIS OF WHICH, NOTICE U/S.153C OF THE ACT HAS BEEN ISSUED TO THE ASSESSEE. IN SUPPORT OF SAID LEGAL GROUND, THE ASSESSEE HAS SUBMITTED A COPY OF THE DECIS ION OF HONBLE ORISSA HIGH COURT IN THE CASE OF SIKSHA O ANUSANDHAN(SUPRA). 7 . ON A CAREFUL CONSIDERATION OF RIVAL SUBMISSIONS AND RESPECTFULLY PERUSING THE JUDGMENT OF HONBLE ORISSA HIGH COURT IN THE CASE OF SIKSHA O ANUSANDHAN(SUPRA), WE OBSERVE THAT AS PER THE PROPOSITION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF NTPC (SUPRA), THE ASSESSEE CAN RAISED LEGAL GROUND BEFORE THE TRIBUNAL FOR THE FIRST TIME, WHICH WAS NOT AGITATED BY HIM BEFORE THE LD CIT(A). THE LEGAL GROUND RAISED BY THE ASSESSEE ON THE BASIS OF JUDGMENT OF HONBLE ORISSA HIGH COURT IN THE CASE OF SIKSHA O ANUSANDHAN(SUPRA) GOES TO THE ROOT OF THE MATTER, THEREFORE, ADDITIONAL GROUND RAISED BY THE ASSESSEE IS ADMITTED FOR CONSIDERATION. 8. LD A.R. OF THE ASSESSEE PLACING DECISION OF HONBLE ORISSA HIGH COURT DATED 2.7.2010 IN THE CASE OF SIKSHA O ANUSANDHAN VS CIT IN ITA NOS.71,72,73,74,75,76 & 77 OF 2009 SUBMITTED THAT THE HONBLE HIGH COURT IN PARA 10 HELD THAT THERE WAS NO SEARCH WARRANT IN THE NAME OF THE APPELLANT I.E. SIKSHA O ANUSANDHAN, THEN IT WOULD BE OPEN TO THE DEPARTMENT TO MAKE ASSESSMENT IN A MANNER OTHER THAN SECTION 153A, IF PERMISSIBLE UNDER THE LAW. LD A.R. SUBMITTED THAT HONBLE HIGH COURT HAS APPROVED THE VIEW TAKEN BY T HE TRIBUNAL IN THIS REGARD GETTING SUPPORT FROM THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF POORAN MAL VS DIRECTOR OF INSPECTION (INVESTIGATION) & ORS (1974) 93 ITR 505 (SC). LD COUNSEL FURTHER POINTED OUT THAT IN THE PRESENT CASE, FROM THE COPY OF THE ASSESSMENT ORDER DATED IT(SS)A NO.52 & 53 /CTK/2017 ASSESSMENT YEAR S : 2003 - 2004 & 2005 - 06 P A G E 4 | 10 28.3.2014, IT IS CLEARLY DISCERNIBLE THAT SINCE THE ASSESSEE WAS DOING CONTRACT WORK UNDER SIKSHA O ANUSANDHAN AND SOME VALUABLE DOCUMENTS OF SHRI MANAS RANJAN MOHANTY, PRESENT ASSESSEE WERE SEIZED DURING THE SEARCH HELD ON 9 .8.2005 IN THE CASE OF SIKSHA O ANUSANDHAN, ACCORDINGLY, NOTICE U/S.153C R.W.S. 153A WAS ISSUED AND SERVED UPON THE ASSESSEE. LD COUNSEL VEHEMENTLY SUBMITTED THAT WHEN THERE WAS NO SEARCH IN THE CASE OF SIKSHA O ANUSANDHAN, THEN HOW PROVISIONS OF SECTION 153C OF THE ACT CAN BE INITIATED AND REASSESSMENT ORDER CAN BE PASSED BY INVOKING SECTION 153C R.W.S 153A OF THE ACT IN THE CASE OF THE ASSESSEE IN THE STATUS OF PERSON OTHER THAN THE PERSON SEARCHED. 9. LASTLY, LD A.R. SUBMITTED THAT SINCE THERE WAS NO SE ARCH AND SEIZURE OPERATION ON 9.8.2005 IN THE CASE OF SIKSHA O ANUSANDHAN, AS PER THE JUDGMENT OF HONBLE ORISSA HIGH COURT, THEREFORE, THE INITIATION OF REASSESSMENT PROCEEDINGS BY WAY OF ISSUE OF NOTICE U/S.153C OF THE ACT AND FRAMING ASSESSMENT U./S.254 /147/153C R.W. SECTION 153A AND 143(3) OF THE ACT CANNOT BE HELD AS SUSTAINABLE AND SAME MAY KINDLY BE QUASHED. 10. REPLYING TO ABOVE, LD CIT DR STRONGLY SUPPORTED THE ASSESSMENT AND CIT(A) ORDER AND SUBMITTED THAT WHEY THE ADDITIONAL GROUND WAS NOT RAISED BEFORE THE LD CIT(A) AND ORDER OF HONBLE ORISSA HIGH COURT DATED 2.7.2010 WAS NOT PLACED BEFORE THE AUTHORITIES BELOW. THEREFORE, THE BENEFIT OF SUCH JUDGEMENT CANNOT BE PROVIDED TO THE ASSESSEE AT THIS BELATED STAGE BY WAY OF ADJUDICATION OF ADDITIONAL GROUND. LD CIT DR SUBMITTED THAT SHRI MANAS RANJAN MOHANTY, MANAGING TRUSTEE OF SIKSHA O ANUSANDHAN , REGISTERED OFFICE OF THE TRUST AT 224, DHARMA VIHAR, KHANDAGIRI, BHUBANESWAR WAS RESIDING ON THE SAME PREMISES, IT(SS)A NO.52 & 53 /CTK/2017 ASSESSMENT YEAR S : 2003 - 2004 & 2005 - 06 P A G E 5 | 10 WHERE SEARCH WAS CONDUCTED AND, THEREFORE, ASSESSEES CASE COVERS U/S.153C OF THE ACT. LD CIT DR SUBMITTED THAT THERE IS NO IOTA OF FACT THAT SEARCH HAS BEEN CONDUCTED IN THE C ASE OF SIKSHA O ANUSANDHAN, THEREFORE, THE SEARCH AND SEIZURE OPERATION CANNOT BE HELD AS INVALID. 11. PLACING REJOINDER TO ABOVE SUBMISSION OF LD CIT DR, LD A.R. DREW OUR ATTENTION TOWARDS OBSERVATION OF HONBLE HIGH COURT IN PARA 7 OF THE JUDGMENT IN THE CASE OF SIKSHA O ANUSANDHAN AND SUBMITTED THAT THEIR LORDSHIPS SPEAKING FOR THE JURISDICTIONAL HIGH COURT HAS CATEGORICALLY HELD THAT IN ABSENCE OF ANY SEARCH WARRANT IN THE CASE OF THE ASSESSEE, SEARCH CONDUCTED IN ITS PREMISES IS NOT A VALID SEARCH AS C ONTEMPLATED UNDER SECTION 132 OF THE I.T.ACT, 1961. THEREFORE, NO PRESUMPTION CAN BE DRAWN THAT THERE WAS A VALID SEARCH IN THE CASE OF SIKSHA O ANUSANDHAN AND, THEREFORE, NO PROCEEDINGS U/S.153C OF THE ACT CAN BE INITIATED IN THE CASE OF THE PRESENT ASSE SSEE. 12. ON CAREFUL CONSIDERATION OF RIVAL SUBMISSIONS, WE ARE OF THE CONSIDERED VIEW THAT IN THE LAST SENTENCE AT PARA 7, THEIR LORDSHIPS OBSERVED THUS: THAT, WE ARE OF THE VIEW THAT IN ABSENCE OF ANY SEARCH WARRANT IN THE NAME OF AN ASSESSEE, SEARCH CO NDUCTED IN ITS PREMISES IS NOT A VALID SEARCH AS CONTEMPLATED UNDER SECTION 132 OF THE I.T.ACT, 1961. 13. THEREFORE, WE HAVE NO HESITATION TO HOLD THAT THEIR LORDSHIPS SPEAKING FOR THE JURISDICTIONAL HIGH COURT HELD THAT IN ABSENCE OF ANY SEARCH WARRANT I N THE NAME OF AN ASSESSEE, SEARCH CONDUCTED IN ITS PREMISES IS NOT A VALID SEARCH AS CONTEMPLATED UNDER SECTION 132 OF THE I.T.ACT, 1961. WHEN THE ALLEGED SEARCH IN THE CASE OF SIKSHA O ANUSANDHAN HAS BEEN HELD AS INVALID THEN ALL CONSEQUENT PROCEEDINGS I N THE CASE OF PERSON SEARCH U/S.153A OF THE ACT AND IN THE CASE OF IT(SS)A NO.52 & 53 /CTK/2017 ASSESSMENT YEAR S : 2003 - 2004 & 2005 - 06 P A G E 6 | 10 THE PERSON OTHER THAN THE PERSON SEARCH I.E. THE ASSESSEE U/S.153C OF THE ACT CANNOT BE HELD AS VALID AND IN ABSENCE OF SEARCH WARRANT IN THE CASE OF PERSON SEARCHED, INITIATION OF REASSESS MENT PROCEEDINGS U/S.153C OF THE ACT BY WAY OF ISSUE OF NOTICE AND CONSEQUENT PROCEEDINGS AND ORDERS HAVE TO BE HELD AS BAD IN LAW AND INVALID AND WE HOLD SO. ACCORDINGLY, ADDITIONAL GROUND OF THE ASSESSEE IS ALLOWED. 14. SINCE, WE HAVE QUASHED REASSESSME NT PROCEEDINGS U/S.254/147/153C R.W.S. 153A /143(3) OF THE ACT BY ALLOWING ADDITIONAL GROUND OF APPEAL, THEREFORE, OTHER GROUNDS HAVE BECOME ACADEMIC AND INFRUCTUOUS. 15 BEFORE PARTING, WE MAY HEREIN DEAL WITH A PROCEDURAL ISSUE THAT THOUGH THE HEARING OF THE CAPTIONED APPEAL WAS CONCLUDED ON 7.2.2020, HOWEVER, THIS ORDER IS BEING PRONOUNCED MUCH AFTER THE EXPIRY OF 90 DAYS FROM THE DATE OF CONCLUSION OF HEARING. WE FIND THAT RULE 34(5) OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1962, WHICH ENVISAGES THE PROCEDURE FOR PRONOUNCEMENT ORDERS, PROVIDES AS FOLLOWS: (5) THE PRONOUNCEMENT MAY BE IN ANY OF THE FOLLOWING MANNERS: - (A) THE BENCH MAY PRONOUNCE THE ORDER IMMEDIATELY UPON THE CONCLUSION OF HEARING (B) IN CASE WHERE THE ORDER IS NOT PRONOUNCED IMMEDIAT ELY ON THE CONCLUSION OF THE HEARING, THE BENCH SHALL GIVE A DATE OF PRONOUNCEMENT. 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 AND EXTRAORDINARY CIRCUMSTANCES OF THE CASE, THE BENCH SHALL FIX A FUTURE DAY FOR PRONOUNCEMENT OF THE ORDER, AND SUCH DATE SHALL NOT ORDINARILY BE A IT(SS)A NO.52 & 53 /CTK/2017 ASSESSMENT YEAR S : 2003 - 2004 & 2005 - 06 P A G E 7 | 10 D AY BEYOND A FURTHER PERIOD OF 30 DAYS AND DUE NOTICE OF THE DAY SO FIXED SHALL BE GIVEN ON THE NOTICE BOARD. AS SUCH, ORDINARILY, THE ORDER ON AN APPEAL SHOULD BE PRONOUNCED BY THE BENCH WITHIN NO MORE THAN 90 DAYS FROM THE DATE OF CONCLUDING THE HEARIN G. IT IS, HOWEVER, IMPORTANT TO NOTE THAT THE EXPRESSION ORDINARILY HAS BEEN USED IN THE SAID RULE ITSELF. THIS RULE WAS INSERTED AS A RESULT OF DIRECTIONS OF HONBLE HIGH COURT IN THE CASE OF SHIVSAGAR VEG RESTAURANT VS ACIT (2009) 319 ITR 433 (BOM), WHEREIN, IT WAS, INTER ALIA, OBSERVED AS UNDER: WE, 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 APPROP RIATE 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 (EMPHASIS, 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 FRAMED, 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. 1 6 . WE FIND THAT THE AFORESAID ISSUE AFTER EXHAUSTIVE DELIBERATIONS HAD BEEN ANSWERED BY A COORDINATE BENCH OF THE TRIBUNAL VIZ; ITAT, MUMBAI F BENCH IN DCIT, CENTRAL CIRC LE - 3(2), MUMBAI VS JSW LIMITED & ORS (ITA NO.6264/MUM/18 DATED 14.5.2020, WHEREIN, IT WAS OBSERVED AS UNDER: 9. LET US IN THIS LIGHT REVERT TO THE PREVAILING SITUATION IN THE COUNTRY. ON 24TH MARCH, 2020, HONBLE PRIME MINISTER OF INDIA TOOK THE BOLD STE P OF IMPOSING A NATIONWIDE LOCKDOWN, FOR 21 DAYS, TO PREVENT THE SPREAD OF COVID 19 EPIDEMIC, AND THIS LOCKDOWN WAS EXTENDED FROM TIME TO TIME. AS A MATTER OF FACT, EVEN BEFORE THIS FORMAL NATIONWIDE LOCKDOWN, THE IT(SS)A NO.52 & 53 /CTK/2017 ASSESSMENT YEAR S : 2003 - 2004 & 2005 - 06 P A G E 8 | 10 FUNCTIONING OF THE INCOME TAX APPELLATE TR IBUNAL AT MUMBAI WAS SEVERELY RESTRICTED ON ACCOUNT OF LOCKDOWN BY THE MAHARASHTRA 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 UNPRECEDENTED 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 MA CHINERY, 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 T O, AND AFTER, THE LOCKDOWN BY OBSERVING THAT IN CASE THE LIMITATION HAS EXPIRED 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 A RISES 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 WHIL E 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 TILL 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 19TH FEBRUARY 2020, TAKEN THE STAND THAT, THE CORONAVIRUS SHOULD BE CONSIDERED A CASE OF NATURAL 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 DICT IONARY, AS AN EVENT OR EFFECT THAT CAN BE NEITHER ANTICIPATED NOR 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 MANA GEMENT ACT, 2005, AND ALSO IN THE LIGHT OF THE DISCUSSIONS ABOVE, THE PERIOD DURING WHICH LOCKDOWN WAS IN FORCE CAN BE ANYTHING BUT AN ORDINARY PERIOD. 10. IN THE LIGHT OF THE ABOVE DISCUSSIONS, WE ARE OF THE CONSIDERED VIEW THAT RATHER THAN TAKING A PED ANTIC VIEW OF THE RULE REQUIRING PRONOUNCEMENT OF ORDERS WITHIN 90 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 FORC E. 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 PRAGMAT ISM, AND THAT IS HOW THE LAW IS REQUIRED TO INTERPRETED. THE INTERPRETATION 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 IT(SS)A NO.52 & 53 /CTK/2017 ASSESSMENT YEAR S : 2003 - 2004 & 2005 - 06 P A G E 9 | 10 TIME WHEN A DISASTER, NOTIFIED UNDER THE DISASTER MANAGEM ENT ACT 2005, IS CAUSING UNPRECEDENTED DISRUPTION 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 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, 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 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 JURISDICTIONAL HIGH COURT AND HONBLE SUPREME COURT ALSO INDICATE THAT THIS PERIOD OF LO CKDOWN 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 ORDINARILY, IN THE LIGHT OF THE ABOVE ANALYSIS OF THE LEGAL POSITION, THE PERIOD DURING WHICH LOCKO UT 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 PRONOUNC EMENT OF ORDERS WITHIN NINETY DAYS, CLEARLY COMES INTO PLAY IN THE PRESENT CASE. 17. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE AFORESAID OBSERVATIONS OF THE TRIBUNAL AND FINDING OURSELVES TO BE IN AGREEMENT WITH THE SAME, THEREIN RESPECTFULLY FOLL OW THE SAME. AS SUCH, WE ARE OF THE CONSIDERED VIEW THAT THE PERIOD DURING WHICH THE LOCK DOWN WAS IN FORCE SHALL STAND EXCLUDED FOR THE PURPOSE OF WORKING OUT THE TIME LIMIT FOR PRONOUNCEMENT OF ORDERS, AS ENVISAGED IN RULE 34(5) OF THE APPELLATE TRIBUNAL RULES, 1963. 1 8 . IN THE RESULT, BOTH THE APPEAL S OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED ON 04 / 0 6 /20 20 . S D/ - SD/ - (LAXMI PRASAD SAHU) ( CHANDRA MOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER CUTTACK; DATED 04 / 0 6 /20 20 B.K.PARIDA, SPS IT(SS)A NO.52 & 53 /CTK/2017 ASSESSMENT YEAR S : 2003 - 2004 & 2005 - 06 P A G E 10 | 10 COPY OF THE ORDER FORWARDED TO : BY ORDER SR . PVT. S ECRETARY ITAT, CUTTACK 1. THE APPELLANT : MANAS RANJAN MOHANTY, PLOT NO.1680, NILAKANTHA NAGAR, BHUBANESWAR 2. THE RESPONDENT: ACIT, CIRCLE - 1(2), BHUBANESWAR. 3. THE CIT(A) - 2, BHUBANESWAR 4. PR.CIT - 2 , BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//