Asian Oilfield Services Ltd., Baroda V. The Dy.CIT.,Circle-1(1), Baroda

MA 114/AHD/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1457 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 7 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-12-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 12-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Additional depreciation
• Section: 43; 22; 32

Judgement Text

MA NO. 114/AHD/2018 ASSESSMENT YEAR: 2008-09 PAGE 1 OF 7 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI A BENCH, MUMBAI [CORAM: PRAMOD KUMAR (VICE PRESIDENT) AND AMARJIT SINGH (JUDICIAL MEMBER)] MA NO. 114/AHD/2018 (ARISING OUT OF ITA NO. 1266/AHD/2012) ASSESSMENT YEAR: 2008-09 M/S. ASIAN OILFIELD SERVICES LTD. .APP LICANT UNIT NO. 1110, 11 TH FLOOR, JMD MEGAPOLIS, SOHNA ROAD, SECTOR 48, GURGAON [PAN: AABCA 7958 F] VS. THE DY. CIT, CIRCLE 1(1), ..........RE SPONDENT BARODA APPEARANCES BY DHARMESH SHAH & DHAVAL SHAH FOR THE APPLICANT AVNEESH TIWARI FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : FEBRUARY 14, 2020 DATE OF PRONOUNCEMENT : DECEMBER 03, 2020 ORDER PER PRAMOD KUMAR, VP: 1. BY WAY OF THIS RECTIFICATION PETITION DATED 12 TH APRIL, 2018, THE ASSESSEE APPLICANT HAS SUBMITTED AS FOLLOWS: 1. VIDE ORDER DATED 08.12.2017, THE HON'BLE TR IBUNAL HAS DECIDED THE APPEAL FOR A.Y. 2008-09 IN ITA NO.L266/AHD/2012 THEREBY DISMISSI NG VARIOUS GROUNDS OF APPEAL RAISED BY THE APPLICANT. THE COPY OF THE SAID ORDER IS E NCLOSED HEREWITH AT ANNEXURE A. THE AFORESAID ORDER PASSED BY THE HON'BLE TRIBUNAL SUFF ERS FROM MISTAKE APPARENT ON RECORD AND THEREFORE THE APPLICANT IS FILING THE PR ESENT MISCELLANEOUS APPLICATION WITH HUMBLE PRAYER TO RECTIFY THE SAID ERROR. 2. THE MAJOR ISSUE INVOLVED IN THE PRESENT APPEAL I S WITH RESPECT TO DISALLOWANCE OF DEPRECIATION OF RS. 2,12,79,355/- IN RESPECT OF VAR IOUS ASSETS AGGREGATING TO RS. 7,09,31,184/-. IN THE GROUNDS OF APPEAL, VARIOUS IS SUES WERE RAISED BY THE APPLICANT CHALLENGING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DEPRECIATION. MA NO. 114/AHD/2018 ASSESSMENT YEAR: 2008-09 PAGE 2 OF 7 THESE GROUNDS ARE ALSO REPRODUCED BY THE HON'BLE TR IBUNAL IN PARA 2, PAGE 1 -2 OF ITS ORDER. 3. DURING THE COURSE OF HEARING, SUBMISSIONS WERE P UT-FORTH IN RESPECT OF THE ISSUE RAISED. THEREAFTER, WITH THE LEAVE OF THE BENCH, WR ITTEN SUBMISSIONS WERE ALSO FILED VIDE LETTER DATED 27.09.2017. THE COPY OF THE SAID SUBMI SSION IS ENCLOSED HEREWITH AT ANNEXURE B. 4. WE SUBMIT THAT WHILE DECIDING THE ISSUES IN THE PRESENT CASE, THE FACTS NARRATED BY THE APPLICANT AT THE TIME OF HEARING AS WELL AS THE FACTS HIGHLIGHTED IN THE WRITTEN SUBMISSION FILED BEFORE THE HON'BLE TRIBUNAL VIDE L ETTER DATED 27.09.2017 HAVE NOT BEEN FULLY CONSIDERED. IT IS SUBMITTED THAT THE HON'BLE TRIBUNAL HAS DECIDED THE ISSUE RAISED IN GROUND NO. 1 (I) AND L(II) THEREBY HOLDING THAT (I) PART OF THE EQUIPMENTS DID NOT CROSS THE CUSTOMS BORDER TILL 31.03.2008 AND THEREFORE THE APPLICANT IS NOT ELIGIBLE FOR DEPRECI ATION ON THESE ASSETS DURING THE YEAR UNDER CONSIDERATION; AND (II) THE EQUIPMENT IN QUESTION DID NOT REPRES ENT THE COMPUTER AND THEREFORE THE DEPRECIATION AT A HIGHER RATE AS CLAIMED BY THE APP LICANT WAS NOT ALLOWABLE. 5. THE APPLICANT SUBMIT THAT THE ORDER PASSE D BY THE HON'BLE TRIBUNAL SUFFERS FROM THE FOLLOWING MISTAKES APPARENT ON RECORD. 6. THE APPLICANT SUBMITS THAT THE WRITTEN S UBMISSIONS DATED 27.09.2017 COMPRISED OF CONTENTIONS OF THE APPLICANT ON ALL THE GROUNDS. HOWEVER, IT APPEARS THAT INADVERTENTLY THESE SUBMISSIONS ARE OVERLOOKED AND THE ORDER HAS BEEN PASSED HOLDING THAT OTHER GROUNDS WERE NOT PRESSED BEFORE THE HON' BLE TRIBUNAL. CONSEQUENTLY, THE FOLLOWING GROUNDS WERE LEFT TO BE ADJUDICATED:- A) IN THE GROUND NO. L (III), THE APPLICANT HAD CHALLENGED THE DISALLOWANCE OF DEPRECIATION EVEN ON THE ASSETS WHICH WERE ACQUIRED AND PUT TO USE PRIOR TO 31.03.2008, IT WAS STATED THAT THE ISSUE WITH RESPECT TO THE DA TE OF 'PUT TO USE' WAS ONLY IN CONNECTION WITH THE ASSETS USED FOR THE PROJECT UNDERTAKEN BY THE APPLICANT FOR THE OIL INDIA LTD AT MIZORAM. HOWEVER, THE DISALLOWANCE OF DEPRECIATION HAS ALSO BEEN MADE BY THE ASSESSING OFFICER IN RESPECT OF THE ASSETS USED FOR THE PROJECT UNDERTAKEN FOR THE ONGC LTD WHICH WERE INSTALLED AT NAGALAND. THE SAID ISSU E WAS ALSO EXPLAINED AT PARA 9-10 OF THE WRITTEN SUBMISSION. B) IN GROUND NO.3, THE APPLICANT HAD CLAIMED THAT ASSETS INSTALLED AND USED DURING THE YEAR QUALIFIED FOR ADDITIONAL DEPRECIATION U/S. 32 OF THE ACT. THE SAID ISSUE WAS ALSO EXPLAINED AT PARA 23 - 25 OF THE WRITTEN SUBMISSION . C) IN GROUND NO.4, THE APPLICANT HAD MADE AN ALTERNATE CLAIM THAT THE DEPRECIATION OUGHT TO HAVE BEEN GRANTED @ 60% SINCE THE APPLICAN T WAS A MINERAL OIL CONCERN AND THAT THE PLANT USED BY THE MINERAL OIL CONCERNS ARE ENTITLED FOR THE HIGHER DEPRECIATION OF 60%. THE DETAILED SUBMISSIONS WITH RESPECT TO SAID CLAIM OF DEPRECIATION WERE MADE AT PARA 17 - 22 OF THE WRITTEN SUBMISSION. D) IN GROUND NO.5, 5.1 AND 5.2, THE APPLICANT HAD CHALLENGED THE DENIAL OF DEPRECIATION @. 60% IN RESPECT OF GEOPHONE STINGS A ND SEISMIC CABLES. THE SUBMISSIONS WITH RESPECT TO THE SAID ISSUE WERE MADE AT 26 - 29 OF THE WRITTEN SUBMISSION. MA NO. 114/AHD/2018 ASSESSMENT YEAR: 2008-09 PAGE 3 OF 7 7. THE APPLICANT SUBMITS THAT VARIOUS GROUND S OF APPEAL RAISED BEFORE THE HON'BLE TRIBUNAL HAVE THEREFORE LEFT TO BE DECIDED AND ADJU DICATED UPON IN THE ORDER. 8. IN LIGHT OF THE ABOVE, THE APPLICANT SUBM ITS THAT THE SAID NON-ADJUDICATION OF THE GROUNDS REPRESENTS MISTAKE APPARENT ON RECORD AND T HEREFORE SAME MAY KINDLY BE RECTIFIED. 9. THE APPLICANT THEREFORE PRAYS THAT THE AP PEAL DECIDED BY THE HON'BLE TRIBUNAL MAY KINDLY BE RECTIFIED AND THE ORDER OF THE HON'BL E TRIBUNAL MAY KINDLY BE RECALLED SO AS TO ADJUDICATE THESE GROUNDS OF APPEAL. 10. FOR THIS ACT OF KINDNESS, THE APPLICANT SH ALL EVER PRAY. 2. HEARD THE PARTIES, PERUSED THE MATERIAL ON RECOR D AND DULY CONSIDERED THE FACTS OF THE CASE, IN THE LIGHT OF THE APPLICABLE LEGAL POSITION . 3. WE FIND THAT WHILE DECIDING THE APPEAL IN QUESTI ONS, THE CO-ORDINATE BENCH HAD, SPEAKING THROUGH ONE OF US (I.E., THE VICE PRESIDEN T), OBSERVED AS FOLLOWS: 7. LEARNED COUNSEL HAS LAID A LOT OF EMPHASIS UPO N THE TEST REPORT DATED 27.02.2008 SIGNED BY THE PSU CLIENTS WHO WERE RENDERED SEISMIC SURVEY SERVICES. HE SUBMITS THAT THE DATE ON THE BILL OF ENTRY IS NOTHING MORE THAN A TYPOGRAPHICAL ERROR, AND THAT, IN ANY EVENT, ONCE THE GOVT OFFICIALS CONFIRM THAT THE EQU IPMENT WAS DULY INSTALLED AND FUNCTIONAL ON 27.02.2008, NOTHING REALLY TURNS ON T HE BILL OF ENTRY. THIS PLEA, HOWEVER, DOES NOT IMPRESS US. ONCE THERE IS A REASONABLE EVI DENCE, AS IN THIS CASE, THAT A PART OF EQUIPMENT DID NOT EVEN CROSS THE CUSTOMS BEFORE 31. 03.2008, THE DEPRECIATION ON SUCH EQUIPMENT CANNOT BE ALLOWED IN THE RELEVANT PREVIOU S YEAR. IF THE DATE GIVEN IN THE BILL OF ENTRY IS INCORRECT, IT IS FOR THE ASSESSES TO OBTAI N NECESSARY CLARIFICATIONS FROM THE CUSTOMS AUTHORITIES. THIS DATE CANNOT BE IGNORED ON THE BASIS OF A RATHER VAGUE AND UNSUBSTANTIATED CONFIRMATION THAT 'EXPERIMENTAL SHOOTING COMPLETED AND PRODUCTION SHOOTING COMMENCED ON 27.02.2008' AND, IN ANY CASE, IT DOES NOT EVIDENCE THAT THE RELATED SPECIFIC EQUIPMENT WAS ACTUALLY USED ON 27. 02.2008, LEARNED CIT(A) HAS VERY WELL ANALYZED AIL THESE ASPECTS AND WE ARE IN CONSI DERED AGREEMENT WITH HIS REASONING AND CONCLUSIONS ON THIS POINT. SIMILARLY, LEARNED C IT(A)'S STAND ABOUT ADMISSIBILITY OF 15% DEPRECIATION ALSO MEETS OUR APPROVAL. JUST BECA USE THE EQUIPMENT HAS AN ELEMENT OF DATA PROCESSING, WHICH IS PRESENT IN MOST MODEM EQUIPMENTS, IT CANNOT BE TREATED AS A COMPUTER. THE VISUALS SHOWN TO US BY THE TEAMED C OUNSEL DO NOT HELP US TO CONCLUDE THAT THE EQUIPMENT IS NOTHING BUT A HIGH END COMPUT ER. UNDOUBTEDLY, IT DOES INVOLVE FEEDING THE INFORMATION THROUGH VARIOUS INPUT CONSO LES AND PROCESSING THE SAME BUT THEN ESSENTIALLY THE EQUIPMENT IS A SEISMIC SURVEY EQUIPMENT AND PRESENCE OF PROCESSING WOULD NOT ALTER ITS CHARACTER. ON THIS POINT ALSO, WE APPROVE THE STAND OF THE AUTHORITIES BELOW. 8. IN VIEW OF THE ABOVE DISCUSSION, AND BEARI NG IN MIND ENTIRETY OF THE CASE, WE APPROVE THE ORDERS OF THE AUTHORITIES BELOW AND DEC LINE TO INTERFERE IN THE MATTER. 9. AS WE PART WITH THE MATTER, WE PLACE ON RECORD T HE FACT THAT THE ONLY GRIEVANCES AGITATED BEFORE US WERE WITH RESPECT TO ADMISSIBILI TY OF DEPRECIATION IN RESPECT OF THE EQUIPMENT, WHICH, AS PER THE B/E NOTING, DID NOT EV EN CROSS CUSTOM CHECK BEFORE THE END OF THE RELEVANT PREVIOUS YEAR AND WITH RESPECT TO A DMISSIBILITY OF DEPRECIATION @ 60% AS MA NO. 114/AHD/2018 ASSESSMENT YEAR: 2008-09 PAGE 4 OF 7 AGAINST DEPRECIATION @ 15% ALLOWED BY THE AUTHORITI ES BELOW. NO OTHER ISSUE WAS PRESSED BEFORE US. 4. ON A PERUSAL OF THE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE APPLICANT HAD FILED CERTAIN WRITTEN SUBMISSIONS WHICH HAVE NOT BEEN DEA LT WITH BY THE TRIBUNAL. ACCORDINGLY, THOSE FACETS OF THE MATTER HAVE REMAINED UNDISPOSED OF, AND IT WAS INADVERTENTLY NOTED BY THE TRIBUNAL THAT NO OTHER ISSUE WAS PRESSED BEFORE US . ACCORDINGLY, WE DEEM IT FIT AND PROPER TO RECALL THE MATTER FOR THE LIMITED PURPOSE OF DIS POSING OF THESE GROUNDS OF APPEAL NAMELY GROUNDS NOS. 1(III), 3, 4 AND 5. ORDERED, ACCORDING LY. REGISTRY IS DIRECTED TO FIX THE APPEAL FOR THE LIMITED PURPOSES AS ABOVE, ON 30 TH DECEMBER, 2020, ISSUE NOTICE. 5. HOWEVER, BEFORE WE PART WITH THE MATTER, WE MAY ADD THAT WHILE HEARING OF THIS APPLICATION WAS CONCLUDED ON 14 TH FEBRUARY, 2020, THIS ORDER IS BEING PRONOUNCED ON 3 RD DECEMBER, 2020. HOWEVER, IN LIGHT OF CO-ORDINATE BE NCH DECISION IN THE CASE OF DCIT VS. JSW LTD. (116 TAXMANN.COM 565), AND EXCLUDING THE P ERIOD IN TERMS OF HONBLE BOMBAY HIGH COURTS DIRECTIONS SET OUT THEREIN, THE TIME L IMIT REQUIREMENT DOES NOT COME IN THE WAY IN THIS ORDER. THE RELEVANT OBSERVATIONS ARE AS FOL LOWS: 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 14TH DAY OF MAY, 2020, MU CH 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 PRO NOUNCEMENT OF ORDERS, PROVIDES AS FOLLOWS: (5) THE PRONOUNCEMENT MAY BE IN ANY OF THE FOLLOWIN G MANNERS :-- (A) THE BENCH MAY PRONOUNCE THE ORDER IMMEDIATELY U PON THE CONCLUSION OF THE HEARING. (B) IN CASE WHERE THE ORDER IS NOT PRONOUNCED IMMED IATELY ON THE CONCLUSION OF THE HEARING, THE BENCH SHALL GIVE A DATE FOR PRONOUNCEM ENT. ITA NO. 6103 AND 6264/MUM/18 ASSESSMENT YEAR: 2013- 14 (C) IN A CASE WHERE NO DATE OF PRONOUNCEMENT IS GIV EN BY THE BENCH, EVERY ENDEAVOUR SHALL BE MADE BY THE BENCH TO PRONOUNCE THE ORDER W ITHIN 60 DAYS FROM THE DATE ON WHICH THE HEARING OF THE CASE WAS CONCLUDED BUT, WH ERE IT IS NOT PRACTICABLE SO TO DO ON THE GROUND OF EXCEPTIONAL AND EXTRAORDINARY CIRC UMSTANCES OF THE CASE, THE BENCH SHALL FIX A FUTURE DAY FOR PRONOUNCEMENT OF THE ORD ER, AND SUCH DATE SHALL NOT ORDINARILY (EMPHASIS SUPPLIED BY US NOW) BE A DAY B EYOND A FURTHER PERIOD OF 30 DAYS AND DUE NOTICE OF THE DAY SO FIXED SHALL BE GIVEN O N THE NOTICE BOARD. 8. QUITE CLEARLY, 'ORDINARILY' THE ORDER ON AN APPE AL SHOULD BE PRONOUNCED BY THE BENCH WITHIN NO MORE THAN 90 DAYS FROM THE DATE OF CONCLU DING THE HEARING. IT IS, HOWEVER, IMPORTANT TO NOTE THAT THE EXPRESSION 'ORDINARILY' HAS BEEN USED IN THE SAID RULE ITSELF. THIS MA NO. 114/AHD/2018 ASSESSMENT YEAR: 2008-09 PAGE 5 OF 7 RULE WAS INSERTED AS A RESULT OF DIRECTIONS OF HON' BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHIVSAGAR VEG RESTAURANT VS ACIT [(2009) 317 ITR 43 3 (BOM)] WHEREIN THEIR LORDSHIPS HAD, INTER ALIA, DIRECTED THAT 'WE, THEREFORE, DIRE CT THE PRESIDENT OF THE APPELLATE TRIBUNAL TO FRAME AND LAY DOWN THE GUIDELINES IN THE SIMILAR LI NES AS ARE LAID DOWN BY THE APEX COURT IN THE CASE OF ANIL RAI (SUPRA) AND TO ISSUE APPROPRIA TE 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 TRI BUNAL. IN THE MEANWHILE (EMPHASIS, BY UNDERLINING, SUPPLIED BY US NOW), ALL THE REVISIONA L AND APPELLATE AUTHORITIES UNDER THE INCOME-TAX ACT ARE DIRECTED TO DECIDE MATTERS H EARD 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 IN SERTED 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 'EXTRAO RDINARY' CIRCUMSTANCES. 9. LET US IN THIS LIGHT REVERT TO THE PREVAILING SI TUATION IN THE COUNTRY. ON 24TH MARCH, 2020, HON'BLE PRIME MINISTER OF INDIA TOOK THE BOLD STEP OF IMPOSING A NATIONWIDE LOCKDOWN, FOR 21 DAYS, TO PREVENT THE SPREAD OF COVID 19 EPIDEMIC, A ND THIS LOCKDOWN WAS EXTENDED FROM TIME TO TIME. AS A MATTER OF FACT, EVEN BEFORE THIS FORM AL NATIONWIDE LOCKDOWN, THE FUNCTIONING OF THE INCOME TAX APPELLATE TRIBUNAL AT MUMBAI WAS SEV ERELY RESTRICTED ON ACCOUNT OF LOCKDOWN BY THE MAHARASHTRA GOVERNMENT, AND ON ACCO UNT 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 D ISRUPTION IN THE FUNCTIONING OF JUDICIAL MACHINERY, THAT HON'BLE 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 ITA NO. 6103 AND 6264/MUM/18 ASSESSMENT YEAR: 2013-14 EXPIRED AFTER 15.03.2020 T HEN THE PERIOD FROM 15.03.2020 TILL THE DATE ON WHICH THE LOCKDOWN IS LIFTED IN THE JURISDI CTIONAL 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'. HON'BLE BOMBAY HIGH COURT, IN AN ORDER D ATED 15TH APRIL 2020, HAS, BESIDES EXTENDING THE VALIDITY OF ALL INTERIM ORDERS, HAS A LSO 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 CO NTINUE FURTHER TILL 15TH JUNE 2020'. IT HAS BEEN AN UNPRECEDENTED SITUATION NOT ONLY IN INDIA B UT ALL OVER THE WORLD. GOVERNMENT OF INDIA HAS, VIDE NOTIFICATION DATED 19TH FEBRUARY 2020, TA KEN 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 BLACK'S LAW DICTIONARY, AS 'AN EVENT OR EFFECT THAT CAN BE NEITHER ANTICIPATED NOR CONTROLLED' WHEN SUCH IS THE POSITI ON, AND IT IS OFFICIALLY SO NOTIFIED BY THE GOVERNMENT OF INDIA AND THE COVID-19 EPIDEMIC HAS B EEN NOTIFIED AS A DISASTER UNDER THE NATIONAL DISASTER MANAGEMENT ACT, 2005, AND ALS O IN THE LIGHT OF THE DISCUSSIONS ABOVE, THE PERIOD DURING WHICH LOCKDOWN WAS IN FORCE CAN B E ANYTHING BUT AN 'ORDINARY' PERIOD. 10. IN THE LIGHT OF THE ABOVE DISCUSSIONS, WE ARE O F THE CONSIDERED VIEW THAT RATHER THAN TAKING A PEDANTIC VIEW OF THE RULE REQUIRING PRONOUNCEMENT OF ORDERS WITHIN 90 DAYS, DISREGARDING THE IMPORTANT FACT THAT THE ENTIRE COUNTRY WAS IN L OCKDOWN, WE SHOULD COMPUTE THE PERIOD OF 90 DAYS BY EXCLUDING AT LEAST THE PERIOD DURING WHI CH THE LOCKDOWN WAS IN FORCE. WE MUST FACTOR GROUND REALITIES IN MIND WHILE INTERPRETING THE TIME LIMIT FOR THE PRONOUNCEMENT OF THE MA NO. 114/AHD/2018 ASSESSMENT YEAR: 2008-09 PAGE 6 OF 7 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 PRA GMATISM, AND THAT IS HOW THE LAW IS REQUIRED TO INTERPRETED. THE INTERPRETATION SO ASSI GNED BY US IS NOT ONLY IN CONSONANCE WITH THE LETTER AND SPIRIT OF RULE 34(5) BUT IS ALSO A P RAGMATIC APPROACH AT A TIME WHEN A DISASTER, NOTIFIED UNDER THE DISASTER MANAGEMENT ACT 2005, IS CAUSING UNPRECEDENTED DISRUPTION IN THE FUNCTIONING OF OUR JUSTICE DELIVERY SYSTEM. UNDOUBT EDLY, IN THE CASE OF OTTERS CLUB VS DIT [(2017) 392 ITR 244 (BOM)], HON'BLE BOMBAY HIGH COU RT DID NOT APPROVE AN ORDER BEING PASSED BY THE TRIBUNAL BEYOND A PERIOD OF 90 DAYS, BUT THEN IN THE PRESENT SITUATION HON'BLE BOMBAY HIGH COURT ITSELF HAS, VIDE JUDGMENT DATED 1 5TH APRIL 2020, HELD THAT DIRECTED 'WHILE CALCULATING THE TIME FOR DISPOSAL OF MATTERS MADE T IME- 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 STEP S TAKEN SUO MOTU BY HON'BLE JURISDICTIONAL HIGH COURT AND HON'BLE SUPREME COURT ALSO INDICATE THAT THIS PERIOD OF LOCKDOWN CANNOT BE TREATED AS AN ORDINARY PERIOD DU RING WHICH THE NORMAL TIME LIMITS ARE TO REMAIN IN FORCE. IN OUR CONSIDERED VIEW, EVEN WITHO UT THE WORDS 'ORDINARILY', IN THE LIGHT OF THE ABOVE ANALYSIS OF THE LEGAL POSITION, THE PERIO D DURING WHICH ITA NO. 6103 AND 6264/MUM/18 ASSESSMENT YEAR: 2013-14 LOCKOUT WAS IN FORCE IS TO EXCLUDED FOR THE PURPOSE OF TIME LIMITS SET OUT IN RULE 34(5) OF THE APPELLA TE TRIBUNAL RULES, 1963. VIEWED THUS, THE EXCEPTION, TO 90-DAY TIME-LIMIT FOR PRONOUNCEMENT O F ORDERS, INHERENT IN RULE 34(5)(C), WITH RESPECT TO THE PRONOUNCEMENT OF ORDERS WITHIN NINET Y DAYS, CLEARLY COMES INTO PLAY IN THE PRESENT CASE. OF COURSE, THERE IS NO, AND THERE CAN NOT BE ANY, BAR ON THE DISCRETION OF THE BENCHES TO REFIX THE MATTERS FOR CLARIFICATIONS BEC AUSE OF CONSIDERABLE TIME LAG BETWEEN THE POINT OF TIME WHEN THE HEARING IS CONCLUDED 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. 6. IT IS IN THESE EXTRA ORDINARY CIRCUMSTANCES THAT THE PRONOUNCEMENT HAS BEEN DELAYED. IT MAY ALSO BE ADDED THAT ONE OF US WAS FURTHER ON TWO MONTH MEDICAL LEAVES, WHICH IS YET ANOTHER FACTOR CONTRIBUTING TO THIS INADVERTENT DEL AY. HOWEVER, GIVEN THE ABOVE LEGAL POSITION, THAT MUST NOT COME IN THE WAY OF PRONOUNCING OUR OR DER NOW. 7. IN THE RESULT, RECTIFICATION PETITION IS ALLOWED IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON THE 3 RD DAY OF DECEMBER, 2020 SD/- SD/- AMARJIT SINGH PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) MUMBAI, DATED THE 3 RD DAY OF DECEMBER, 2020 ROSHANI, SR. PS COPIES TO: (1) THE APPLICANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBA I