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TMI Blog2020 (9) TMI 1123X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regards to disallowance of selling and marketing expenses paid of Rs. 1,20,19,260/- stating that the receipt from sale of FSI is not offered to tax, hence corresponding expenses also cannot be allowed for the year under consideration. It is therefore submitted that such disallowance of selling & marketing expenses is unreasonable and unjustified and therefore, such disallowance should be deleted. 3. Without Prejudice to the above, it is submitted that if the said expenses is disallowed for the year under consideration then the same should be allowed to take the deduction in the subsequent year when the revenue for sale of FSI is recognized. 4. Your appellant craves to add, alter, or amend any of the grounds of appeal on or before the date of hearing of appeal." 3. The brief facts of the case are that the assessee filed its return of income on 29.09.2012 declaring total loss at Rs. Nil for the A.Y.2012-13. The return was processed u/s 143(1) of the Income Tax Act, 1961. The case was selected for scrutiny. Notices u/s 143(2) & 142(1) of the I. T. Act, 1961 were issued and served upon the assessee. The assessee company was incorporated to construct, purchase, acquire, hire, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand, the Ld. Representative of the Department has refuted the said contention. The factual position is not in dispute. The assessee company has paid 2% commission on sale of FSI 53.33 crores for the year under consideration. The commission has been booked against these transactions in the year under consideration. Since the FSI was not offered in the current year, therefore, the AO has declined the claim. It nowhere seems justifiable in view of the decision in the case of Mysore Tobacco Co. Ltd. Vs. CIT (1978) 115 ITR 698 (Kar) in which it is held that the accepting certain specific provisions relating to amortization of initial expenses in certain cases, there is no other statutory provision for allowing revenue expenses in a phased or spread out manner. On the other hand, the expenses are required to be claimed and allowed only in the year in which the expenses are incurred or the liability towards such expenses accrued. Revenue expenditure is essentially allowable in the year to which it pertains or in which it is incurred. However, to support his claim, the assessee has also relied upon the decision in the case of Calico Dyeing & Printing Works Vs. CIT (1958) 34 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g pronounced now after the re-opening of the offices. 6.3 Faced with similar facts and circumstances, the co-ordinate bench of this Tribunal comprising-off of Hon'ble President and Hon'ble Vice President, in its recent decision titled as DCIT V/s JSW Limited (ITA Nos. 6264 & 6103/Mum/2018) order dated 14/05/2020 held as under: - 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, much 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 pronouncement of 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 the hearing. (b) In case where the order is not pronounced immediately on the conclusion of the hearing, the Bench shall give a date for pronouncement. (c) In a case where no date of pronouncement is given by the Bench, every endeavour shall be made by the Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Tribunal 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal 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 timebound 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 refi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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