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TMI Blog2020 (8) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... se available with the A.O, the fact that source of such power had been incorrectly described would not vitiate the order passed by him. Now, in the case before us, we find that the A.O who was duly vested with the jurisdiction to frame the assesement under Sec. 143(3), had inadvertently made a mention of Sec. 153A along with Sec. 143(3) of the Act. In our considered view, the aforesaid mistake cannot be stretched to the extent for rendering the assessment framed by the A.O under Sec. 143(3), as invalid and void ab-initio on the said count. Accordingly, finding no substance in the aforesaid claim of the assessee, we decline to accept the same and uphold the view taken by the CIT(A) who had rightly dismissed the same. Addition of value of the 450 grams of gold jewellery under Sec. 69B - unexplained investment - HELD THAT:- Entire value of the 450 grams of gold jewellery which have been held by the A.O as an unexplained investment within the meaning of Sec. 69B of the Act, had been added to the income of the assessee. In our considered view, the very basis for invoking the provisions of Sec. 69B in the case of the assessee before us are found to be seriously amiss viz. (i) that, as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 153A can be issued which is mandatory for assessment under section 153A of the Act, due to which assessment becomes void. 2. That the judicial pronouncements relied upon by the assessee, have not been considered by the Ld. CIT(A). 3. That the Ld.CIT(A) has grossly erred in law and on facts of the case in sustaining the assessment order under section 153A of the Act instead of section 153C of the Act made by ACIT when there was no search authorization under section 132 of the Act in the name of the assessee without verifying the record of the revenue. 4. That the Ld. CIT(A) has erred in directing the assessee to file affidavit regarding her claim that no search authorization was in her name instead of verifying the facts from the record of revenue. 5. That the Ld. CIT(A) has grossly erred in not considering the judicial pronouncements relied upon by the assessee in case of joint operation of bank lockers and no search warrant was issued in the name of assessee then the assessing officer can not invoke the provision of section 153A of the Income Tax Act. 6. That the Ld. CIT(A) has grossly erred in law and facts of the case in sustaining the addition of ₹ 13,95,900/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid jewellery, the assessee owned 950 grams (approx.) of gold jewellery. It was the claim of the assessee that 950 grams of jewellery (including diamond) was received by her at the time of her marriage from her father (since deceased). In order to substantiate her aforesaid claim, the assessee filed with the A.O a duly attested affidavit of her brother i.e. Sh. Inderjit. However, the A.O was not inclined to accept the aforesaid claim of the assessee. It was noticed by the A.O that neither the assessee had ever filed her wealth tax returns in the earlier years nor furnished any evidence in respect of acquisition of the aforesaid jewellery. Accordingly, in the backdrop of his aforesaid observations, the A.O after giving benefit of 500 grams of gold jewellery as having been received by her as gifts over the years from relatives, therein treated the balance 450 grams of gold jewellery as unexplained. Observing, that the value of jewellery weighing 450 grams (24 carat) as on the date of search was ₹ 3,102/- per gram, the A.O valued the same at ₹ 13,95,900/-, which was held by him as the unexplained investment of the assessee under Sec. 69B of the Act. On the basis of his afo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notices issued by him u/s 143(2) and Sec. 142(1) of the Act, and the assessee had duly participated in the course of the proceedings before the A.O, the CIT(A) was not persuaded to subscribe to the claim of the assessee that as the A.O had made a mention of Sec. 153A along with Sec. 143(3), therefore, the assessment was liable to be held as invalid and void ab initio. It was observed by the CIT(A), that the Hon ble Supreme Court in the case of Isha Beevi Vs. TRO (1975) 101 ITR 449 (SC), had held that a mere wrong reference to a section under which an order is made would not vitiate the assessment order, but in fact the validity of the same has to be determined by seeking as to whether or not the A.O had any power to pass such an order. It was noticed by the CIT(A) that the Hon ble Apex Court had observed that if the power was otherwise available with the A.O, the fact that the source of the power had incorrectly been described would not vitiate the order. Accordingly, on the basis of his aforesaid observation, the CIT(A) was of the view that as the A.O had was duly vested with the power to make an assessment in the case of the assessee under Sec. 143(3), therefore, merely for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ewellery was gifted to her at the time of marriage could not be accepted, it was submitted by the assessee before the CIT(A) that as her net wealth was below the exemption limit over the years under the Wealth Tax Act, 1957, therefore, there was no obligation for her to file her wealth tax returns. However, the CIT(A) after deliberating on the aforesaid contention of the assessee was not persuaded to subscribe to the same. Observing, that as the assessee had failed to show that the said jewellery was declared to the income tax department either by her or by her father, the CIT(A) was of the view that no infirmity did emerge from the order of the A.O, who in all fairness after allowing the benefit of 500 grams of gold jewellery as having been received by the assessee as gifts from her relatives over the years, had rightly treated the balance gold jewellery of 450 grams as an unexplained investment within the meaning of Sec. 69B of the Act. Accordingly, the CIT(A) sustained the addition of ₹ 13,95,900/- made by the A.O under Sec. 69B of the Act. 6. The assessee being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. We have heard the authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to frame the assesement under Sec. 143(3), had inadvertently made a mention of Sec. 153A along with Sec. 143(3) of the Act. In our considered view, the aforesaid mistake cannot be stretched to the extent for rendering the assessment framed by the A.O under Sec. 143(3), as invalid and void ab-initio on the said count. Accordinly, finding no substance in the aforesaid claim of the assesee, we decline to accept the same and uphold the view taken by the CIT(A) who had rightly dismissed the same. Also, we are in agreement with the view taken by the CIT(A), that as a restraint order as regards operation of the bank lockers of the assesee was issued by the ADIT(Inv.), Jalandhar, therefore it could safely be concluded that a search warrant under Sec. 132 was issued in the name of the assesee. The Ground of Appeal No.1 to 5 are dismissed. 7. We shall now advert to the claim of the assessee that the lower authorities had erred in treating 450 grams of gold jewellery (out of 950 grams) as an unexplained investment under Sec. 69B of the Act, resulting to an addition of its impugned value of ₹ 13,95,900/- to the returned income of the assessee. As observed by us hereinabove, in the cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and her family members could be specifically related to the assessee. In fact, it was only pursuant to the claim of the assessee that she had received 950 grams of gold jewellery (including diamond) at the time of her marriage from her father(since deceased), that the A.O on the basis of such standalone statement of her had related the ownership of 950 grams of gold jewellery (out of 2272.30 grams) to the assessee. In sum and substance, the basis for holding the assessee as the owner of 950 grams of gold jewellery (including diamond) was her claim filed before the A.O. In our considered view, if the claim of the assessee which she had supported on the basis of an affidavit of her brother Sh. Inderjit, that she was the owner of 950 grams of gold jewellery (out of 2272.30 grams) was to be accepted, then we find no reason that as to why the source of her ownership forming part of the same statement was not to be accepted. Apart from that, we find that now when the assessee had explained the source of acquisition of 950 grams of gold jewellery on the basis of the affidavit of her brother Sh. Inderjit, therein it was obligatory on the part of the A.O to have verified the said factual p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Wealth Tax Act, 1957, as under :- Assessment Year Weight of Jewellery in gram Value of Jewellery at the Market rate of respective Assessment Year and as per method of valuation of Gold Ornaments Initial exemption limit 1993-94 950 GRAMS 3,10,707/- 15,00,000/ 1994-95 950 GRAMS 3,45,980/- 15,00,000/ 1995-96 950 GRAMS 3,51,234/- 15,00,000/ 1996-97 950 GRAMS 3,90,260/- 15,00,000/ 1997-98 950 GRAMS 3,60,240/- 15,00,000/ 1998-99 950 GRAMS 3,03,577/- 15,00,000/ 1999-00 950 GRAMS 3,20,839/- 15,00,000/ 2000-01 950 GRAMS 3,27,969/- 15,00,000/ 2001-02 950 GRAMS 3,06,579/- 15,00,000/ 2002-03 950 GRAMS 3,79,753/- 15,00,000/ 2003-04 950 GRAMS 3,94,763/- 15,00,000/ 2004-05 950 GRAMS 4,54,053/- 15,00,000/ 2005-06 950 GRAMS 4,63,809/- 15,00,000/ 2006-07 950 GRAMS 6,29,069/- 15,00,000/ 2007-08 950 GRAMS 6,97,965/- 15,00,000/ 2008-09 950 GRAMS 8,94,596/- 15,00,000/ 2009-10 950 GRAMS 11,35,657/- 15,00,000/ 2010-11 950 GRAMS 12,29,319/- 30,00,000/- 2011-12 950 GRAMS 15,84,906/- 30,00,000/ 2012-13 950 GRAMS 21,11,081/- 30,00,000/ 2013-14 950 GRAMS 22,22,230/- 30,00,000/ ,2014-15 950 GRAMS 21,36,673/- 30,00,000/ 2015-16 950 GRAMS 19,88,825/- 30,00,000/ On a perusal of the aforesaid details, we find ours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of account maintained by the assessee for any source of income, and the assessee offers no explanation about such excess amount or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the excess amount may be deemed to be the income of the assessee for such financial year . On a perusal of the aforesaid statutory provision, we find that the same can be invoked only where the assessee had made investment or is found to be the owner of any bullion, jewellery or other valuable article and the A.O finds that the amount expended on making such investments or in acquiring such bullion, jewellery or other valuable article exceeds the amount recorded in this behalf in the books of account maintained by the assessee for any source of income, and the assessee offers no explanation about such excess amount or the explanation offered by him is not, in the opinion of the A.O, satisfactory, then the excess amount may be deemed to be the income of the assessee for such financial year. As such, for the purpose of making an addition under Sec. 69B, certain conditions therein envisaged are required to be satisfied viz. (i) that, the assessee has made invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, we are of a strong conviction that in the totality of the facts of the case the A.O could not have made the addition as regards the impugned value of the 450 grams of gold jewellery under Sec. 69B of the Act. As such, we are in agreement with the contention advanced by the Ld. A.R that the impugned addition could not have been made by the A.O under Sec. 69B of the Act. In the backdrop of our aforesaid observations, we herein conclude that the impugned addition of ₹ 13,95,900/- made by the A.O as regards the 450 grams of gold jewellery under Sec. 69B of the Act cannot also be sustained for want of jurisdiction. The Grounds of Appeal No. 6 to 11 are allowed in terms of our aforesaid observations. 10. The Ground of Appeal No. 12 being general is dismissed as not pressed. 11. Before parting, we may herein deal with a procedural issue that though the hearing of the captioned appeal was concluded on 06/02/2020, 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 of orders, provides as follows: (5) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... austive deliberations had been answered by a coordinate bench of the Tribunal viz. ITAT, Mumbai F Bench in DCIT, Central Circle-3(2), Mumbai Vs. JSW Limited Ors. [ITA No. 6264/Mum/18; dated 14/05/2020, wherein it was observed as under: Let us in this light revert to the prevailing situation 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, and this lockdown was extended from time to time. The epidemic situation 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 expired after 15.03.2020 then the period from 15. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Disaster Management 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)], Hon ble 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 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 the Hon ble 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- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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