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TMI Blog2020 (7) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... sment as well as on merits. Hence the ground of appeal of the assessee is allowed. Order being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [ 2020 (5) TMI 359 - ITAT MUMBAI ] - Shri Waseem Ahmed, Accountant Member And Shri Madhumita Roy, Judicial Member For the Appellant : Shri P.C. Yadav, Advocate And Dinesh Rupareliya CA For the Respondent : Shri M.N Maury, CIT/ D.R. ORDER PER BENCH, 1. These appeals filed by the Assessee are directed against the order of the Ld. CIT(A)-11, Ahmedabad dated 29.01.2015 pertaining to A.Y. 2011-12 ITA 97/Rjt/2015 Dinesh bhai 2. The assessee has raised the following grounds of appeal: 1. The learned Commissioner of Income Tax (Appeals) - 11, Ahmedabad erred in confirming addition of ₹ 35,67,200/- made by the assessing officer by way of unexplained cash found during search. 2. The learned Commissioner of Income Tax (Appeals) - 11, Ahmedabad erred in confirming the action of the assessing officer in treating proceeds from sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as framed under section 143(3) of the Act. However, the provision of section 153D of the Act mandates that the approval of the joint Commissioner has to be obtained before passing the assessment order. The relevant provisions of section 153D of the Act reads as under: 153D. No order of assessment or reassessment shall be passed by an Assessing Officer below the rank of Joint Commissioner in respect of each assessment year referred to in clause (b) of sub-section (1) of section 153A or the assessment year referred to in clause (b) of sub-section (1) of section 153B, except with the prior approval of the Joint Commissioner 7. The provisions specified in clause (b) of subsection (1) of section 153B has a direct bearing on the issue raised by the assessee in the additional ground of appeal. The relevant extract of the provisions of clause (b) of subsection (1) to section 153B reads as under: 153B. (1) Notwithstanding anything contained in section 153, the Assessing Officer shall make an order of assessment or reassessment,- (a) *********** (b) in respect of the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Assessing Officer below the rank of Joint Commissioner in respect of each assessment year referred to in clause (b) of section 153A or the assessment year referred to in clause (b) of subsection (1) of section 153B, except with the prior approval of the Joint Commissioner. Provided that nothing contained in this section shall apply where the assessment or reassessment order, as the case maybe, is required to be passed by the Assessing Officer with the prior approval of the Commissioner under sub-section (12) of section 144BA. 5. A perusal of the above provisions would show that the legislature has used the word shall in section 153-D, which means that the provisions of section 153D are mandatory. Further the Manual of procedure as mandated by the CBDT, applicable in search assessment would show that the CBDT has categorically mentioned in the provisions that assessment order would be passed only after the receipt of the approval. Copy of Manual of Procedures is annexed in decisions Paper Book Page No-36. 6. It is next submitted that now it is settled law as laid down by various High Courts that the provisions of section 153D are mandatory. A reference can be made to the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ridabad dated 30th January 2014 was forwarded to the /Add/. CIT, Chandigarh on 30th January 2014. No reply was given to assessee as to when the letter of the assessing officer was received by /Add/. CIT, Chandigarh. It was also intimated that no such record is available in the .office of Assessing Officer regarding mode by which assessment record along with the letter of the assessing officer dated 30th January 2014 were forwarded to the /Add/. CIT, Chandigarh. No details/explanation were furnished as to on which date the assessment record was received by the /Add/. CIT, Chandigarh. The assessee, on inspection of the record, intimated the assessing officer that no original approval under section 153D is available on record. Learned Counsel for. the Assessee referred to PB 48, which is Fax message received on 5th February 2014, communicating the approval of /Add/. CIT to the assessing officer........... In Para-14 Hon'ble Bench has further observed as under :- The Addl. CIT, Chandigarh did not mention in his approval dated 31st January 2014 (supra), if he has gone through the assessment record or that assessment record was produced before him. Since no details are available on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed hereinabove. From the above, it is very much clear that the approving authority i.e. the Id JCIT has not even bothered to mention that he has perused the relevant assessment records and draft assessment orders for which he has granted approval u/s.153D of the Act as per the mandatory requirements of the said provisions of the Act. In view of foregoing discussion, we are inclined to hold that the Id JCIT has granted approval under section 153D of the Act in a mechanical manner without application of mind to the relevant assessment records and draft assessment orders submitted before him by the AO for grant of approval u/s.153D of the Act before passing the relevant assessment orders u/s.153A r.w.s 143(3) of the Act In Conculsive portion Hon'ble ITAT has observed as under:- From the relevant approval orders dated 23.11.2017, it is vivid that Id JCIT has not mentioned in the approval orders that he has gone through the relevant assessment records/files/folders and draft assessment orders for granting approval. These facts clearly show that the approval had been granted in a mechanical manner without application of mind and, thus, no valid approval has been granted by the Id JCI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rement of obtaining the prior approval of the Joint Commissioner under section 153D of the Act was absolute. The Tribunal, however, has recorded a finding of fact that there is nothing on record to indicate that the prior approval of the Joint Commissioner was obtained. As a natural corollary therefore, in the absence of the requirement of prior approval of the Joint Commissioner being satisfied, the whole proceeding would stand invalidated. The Tribunal was, therefore, wholly justified in holding that the impugned order of assessment would stand vitiated in view of non-compliance of the provisions of section 153D of the Act. On this count also, therefore, the appeal, does not merit acceptance. 12. For the foregoing reasons, it is not possible to state that the impugned order passed by the Tribunal gives rise to any question of law, much less, a substantial question of law, so as to warrant interference. The appeals, therefore, fail and are summarily dismissed. 13. At the time of hearing, the learned DR for the revenue has not brought anything on record contrary to the arguments advanced by the learned AR for the assessee. As the assessee succeeds on the preliminary issue raised by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pread 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 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 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 arises shall be extended for a period of 15 days after the lifting of lockdown . Hon ble 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Hon ble jurisdictional High Court and Hon ble Supreme Court also indicate that this period 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 ordinarily , in the light of the above analysis of the legal position, the period during which 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 order thereon is being finalized, but then, in our considere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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