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TMI Blog2020 (7) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... ief are that the assessee in the present case is a private limited company and engaged in the business of civil constructions. The assessee for the year under consideration has filed its return of income declaring income at Rs. 1,75,27,310/- which was assessed under section 143(3) of the Act, at Rs. 1,77,21,620/- after making the addition for Rs. 1,51,000/-to the total income of the assessee vide order dated 28.03.2014. 5. However, the learned principle CIT subsequently on verification of the assessment records found that the assessee has shown less amount of gross receipts in comparison to the amount of gross receipt shown in the form 26AS. Such amount of difference was of Rs. 32,35,658/-. As per the learned principle CIT this fact for the difference in the amount of gross receipt was not verified by the AO during the assessment proceedings. Accordingly, he held that the order passed by the AO under section 143(3) of the Act, is erroneous insofar prejudicial to the interest of Revenue. Hence he directed the AO to make fresh assessment in the light of the above discussion after making necessary enquiries. 6. Being aggrieved by the order of the learned principle CIT the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reported in form 26AS. The copy of such reconciliation statement is placed on page 11 of the paper book. 13. From the above, it is transpired that the queries were raised by the AO during the assessment proceedings about the mismatch of the TDS credit claimed by the assessee viz a viz the TDS credit reported in the form 26AS. Similarly, the query was raised regarding the contracts which were completed in the year under consideration. Thus we note that there was no enquiries raised by the AO about the mismatch in the amount of gross receipts shown by the assessee viz a viz reported in the form 26AS on which TDS was deducted. Accordingly, we are of the view that there was no verification carried out by the AO during the assessment proceedings with respect to the amount of gross receipt shown by the assessee viz a viz the gross receipt reported in the form 26AS. It is the settled law that the order of the AO can be held as erroneous insofar prejudicial to the interest of revenue if there was no enquiry conducted by the AO during the assessment proceedings. In this regard we find support and guidance from the judgment of Hon'ble Supreme Court in case of Malabar Industries Co. Ltd. v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the revenue. In the instant case, the Commissioner noted that the ITO passed the order of nil assessment without application of mind. Indeed, the High Court recorded the finding that the ITO failed to apply his mind to the case in all perspective and the order passed by him was erroneous. It appeared that the resolution passed by the board of the appellantcompany was not placed before the Assessing Officer. Thus, there was no material to support the claim of the appellant that the said amount represented compensation for loss of agricultural income. He accepted the entry in the statement of the account filed by the appellant in the absence of any supporting material and without making any inquiry. On these facts the conclusion that the order of the ITO was erroneous was irresistible. Therefore, the High Court had rightly held that the exercise of the jurisdiction by the Commissioner under section 263(1) was justified. 14. In view of the above, we do not find any infirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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, follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 notice board. Considering the above, we express to pronounce the order beyond the period of 90 days. Accordingly, we proceed to pronounce the order as on date. 16. In the result appeal of the assessee is dismissed Order pronounced in Open Court on 01 - 06- 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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