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TMI Blog2020 (10) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... e Respondent : None ORDER PER S. RIFAUR RAHMAN, ACCOUNTANT MEMBER: These Appeals have been filed by the revenue against the order of Ld. Commissioner of Income Tax (Appeals) - 2 in short referred as Ld. CIT(A) , Thane, dated 03.12.2018 for Assessment Year (in short AY) 2009-10 2010-11. 2. At the outset, it is noticed that none appeared on behalf of assessee in spite of calls and even no application for adjournment was moved. On the other hand, Ld. DR is present in the court and is ready with arguments. Therefore, we have decided to proceed with the hearing of the case ex-parte with the assistance of the Ld. DR and the material placed on record. 3. It is noticed that the tax effect of the relief granted by the Ld. Commissioner of Income Tax (Appeals) is below ₹ 50 lacs and as per Circular No.17 of 2019 dated 08.08.2019 issued by the Central Board of Direct Taxes (CBDT), Department of Revenue, Ministry of Finance, Government of India, the CBDT has revised the monetary limit for filing appeals before the ITAT from the existing limit of ₹ 20 lacs to ₹ 50 lacs. 4. Further, we notice from the record that the department has filed the present a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was made by estimating value of rice husk without any concrete evidence, levy of penalty on such addition was not sustainable. In Commissioner of Income-tax v. Brahmaputra Consortium Ltd. (Del):Penalty-concealment of income-disallowance of claim for deduction of expenditure and depreciation-finding that claims were erroneous and there was no concealment of income or furnishing of inaccurate particulars-- penalty could not be levied-income-tax act, 1961, s. 271(1)(c). In Commissioner of Income-tax v. P. Roles (Mad), it was held that the levy of penalty was based on the estimation of income. There cannot be any imposition of penalty based on estimation of income. In Naresh Chand Agarwal v. Commissioner of Income-tax (All):Penalty under section 271(1)(c) could not be imposed on the basis of estimating sales and making addition by applying net profit rate-Same was rightly sustained by Tribunal and no substantial question of law arises. In Commissioner of Income-tax v. P. H. I. Seeds India Ltd., 120081 301 ITR 0013-(DeI):It was held that Section 271 (1) (C) of the Income-tax Act, 1961, is attracted only in those instances where the assessee has concealed the particulars of his in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is pronounced after a period of 90 days from the date of conclusion of the hearing. In this regard, we place reliance on the decision of co-ordinate bench of this Tribunal in the case of JSW Ltd in ITA Nos. 6264 6103/Mum/2018 dated 14.5.2020, wherein this issue has been addressed in detail allowing time to pronounce the order beyond 90 days from the date of conclusion of hearing by excluding the days for which the lockdown announced by the Government was in force. The relevant observations of this tribunal in the said binding precedent are 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osing a nationwide lockdown, for 21 days, to prevent the spread of Covid 19 epidemic, and this lockdown was extended from time to time. As a matter of fact, even before this formal nationwide lockdown, the functioning of the Income Tax Appellate 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 j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 suomotu 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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