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TMI Blog2020 (10) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... PRAMOD KUMAR, VICE PRESIDENT AND SHRI AMARJIT SINGH, JUDICIAL MEMBER Assessee by: Shri Bhupendra Karkhanis (AR) Revenue by: Shri Chaudhary Arunkumar Singh.(DR) ORDER PER AMARJIT SINGH, J.M. The assessee has filed the present appeal against the order dated 20-07-2018 passed by the CIT(Appeals)-51, Mumbai relevant to the assessment year 2015-16. The assessee has raised the following grounds: 1(a) On the facts and in the circumstances of the case ad in law, the Ld. CIT(A) erred in directing ld. AO to recalculate the disallowance u/s 14A r.w. Rule 8D(2)(iii) on average investments of ₹ 39,59,06,791/- (being average of investments of ₹ 44,94,13,741/- as on 31.03.2014 and investments of ₹ 34,23,99,841 as on 31.03.2015) by considering the following investments: (a) which are capable of generating the taxable income. (b) investments wherein there is no movement made during the year. (c) on which the appellant has not received any exempt income. which wrong and contrary to the facts of the case, the provisions of the Act and Rules made there under. 2. The brief facts of the case are that the assessee filed its return of income on 30-11-2015 declaring total income of ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diture towards the exempt income u/s 14A read with Rule 8D. Learned representative of the assessee has placed reliance on the decision in the case of Vireet Investment 82 taxmann.com 415. However, on the other hand, the learned representative of the Department has refuted the said contentions. 5. The Special Bench of ITAT, Delhi in the case of Vireet Investment 82 taxmann.com. 415 has observed as under : 11.17. As far as argument relating to meaning to be ascribed to the phrase shall not used in Rule 8D(2)(iii) is concerned, the Revenue s contention is that it refers to those investments which did not yield any exempt income during the year but if income would have been yielded it would have remain exempt. There is no dispute that if an investment has yielded exempt income in a particular year then it will enter the computation of average value of investments for the purposes of Rule 8D(2)(iii). The assessee s contention that if there is no certainty that an income, which is exempt in current year, will continue to be so in future years and, therefore, that investment should also be excluded, is hypothetical and cannot be accepted. 11.18. In view of above discussion, the matter is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in pronouncement of order 6.1 Before parting, we would like to enumerate the circumstances which have led to delay in pronouncement of this order. The hearing of the matter was concluded on 07/02/2020 and in terms of Rule 34(5) of Income Tax (Appellate Tribunal) Rules, 1963, the matter was required to be pronounced within a total period of 90 days. As per sub-clause (c) of Rule 34(5), every endeavor was to be made to pronounce the order within 60 days after conclusion of hearing. However, where it is not practicable to do so on the ground of exceptional and extraordinary circumstances, the bench could fix a future date of pronouncement of the order which shall not ordinarily be a day beyond a further period of 30 days. Thus, a period of 60 days has been provided under the extant rule for pronouncement of the order. This period could be extended by the bench on the ground of exceptional and extraordinary circumstances. However, the extended period shall not ordinarily exceed a period of 30 days. 6.2 Although the order was well drafted as well as approved before the expiry of 90 days, however, unfortunately, on 24/03/2020, a nationwide lockdown was imposed by the Government of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on the notice board. 8. Quite clearly, ordinarily the order on an appeal should be pronounced by the bench within no more than 90 days from the date of concluding the hearing. It is, however, important to note that the expression ordinarily has been used in the said rule itself. This rule was inserted as a result of directions of Hon ble jurisdictional High Court in the case of Shivsagar Veg Restaurant Vs ACIT [(2009) 317 ITR 433 (Bom)] wherein Their Lordships had, inter alia, directed that We, therefore, direct the President of the Appellate Tribunal to frame and lay down the guidelines in the similar lines as are laid down by the Apex Court in the case of Anil Rai (supra) and to issue appropriate administrative directions to all the benches of the Tribunal in that behalf. We hope and trust that suitable guidelines shall be framed and issued by the President of the Appellate Tribunal within shortest reasonable time and followed strictly by all the Benches of the Tribunal. In the meanwhile(emphasis, by underlining, supplied by us now), all the revisional and appellate authorities under the Income-tax Act are directed to decide matters heard by them within a period of three months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedented 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, following the due procedure . The term force majeure has been defined in Black s Law Dictionary, as an event or effect that can be neither anticipated nor controlled When such is the position, and it is officially so notified by the Government of India and the Covid-19 epidemic has been notified as a disaster under the National Disaster Management Act, 2005, and also in the light of the discussions above, the period during which lockdown was in force can be anything but an ordinary period. 10. In the light of the above discussions, we are of the considered view that rather than taking a pedantic view of the rule requiring pronouncement of orders within 90 days, disregarding the important fact that the entire country was in lockdown, we should compute the period of 90 days by excludingat least the period during which the lockdown was in force. We must factor ground realities in mind while ..... X X X X Extracts X X X X X X X X Extracts X X X X
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