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TMI Blog2021 (1) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... llant : Ms. Urvashi Sodhan, A.R. For the Respondent : Shri Mudit Nagpal , Sr. D.R. ORDER PER MS. MADHUMITA ROY - JM: The instant Miscellaneous Application filed by the assessee is directed against the order dated 05.09.2019 whereby and whereunder the Ground No. 2 was decided against the assessee. The Ground No. 2 of the appeal reads as under:- The Learned Commissioner (Appeal) erred in fact and in law in confirming disallowance of ₹ 2,65,40,195/- u/s 40A(2)(b) of the Income Tax Act, 1961 considering it as diversion of income by the appellant to CCCPL and from CCCPL to CCCPL s directors. 2. The Ld. Tribunal while adjudicating this ground observed as follows:- 9. It appears from the finding of the Learned CIT(A) that the authorities below has not been provided with any documentary proof that CCCPL is having any manpower to carry out any research work as mentioned in the Memorandum of Understanding. The MOU further does not specify the type of research work it would undertake. Documentary proof that CCCPL is competent to carry out research work as specified by MOU has been failed to be submitted by the assessee. It was further found that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e pharmaceutical company who is required to obtain license for research of new doctors and not the CCCPL. It was further pointed out by the Ld. Senior Counsel appearing for the assessee that the doctors of CCCPL were made payment for their professional fees for carrying out research work; such payment was made out of the received from CIMS in respect of research work as it reflects from the Profit and Loss account of the CCCPL and, therefore, no permanent employee is required to be hired by the CIMS. Apart from that it was further argued that the agreement between the appellant and the CCCPL was not for diversion of the income. The appellant having huge carry forward losses of more than ₹ 51 crores available for set off against current year income payment for research work carried out by CCCPL and in turn to doctors, the department has got taxes both from CCCPL and the doctors declaring income receipt from the appellant. On the basis of the fact available in the case in hand, the Ld. Senior Counsel appearing for the assessee further relied upon the judgment passed by the Hon ble Jurisdictional High Court in the matter of ITO vs. Hemato Oncology Clinic (Ahmedabad) (P.) (Ltd.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 to pronounce the order within 60 days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of exceptional and extraordinary circumstances of the case, the Bench shall fix a future day for pronouncement of the order, and such date shall not ordinarily (emphasis supplied by us now) be a day beyond a further period of 30 days and due notice of the day so fixed shall be given 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 15days 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 corona virus should be considered a case of natural calamity and FMC (i.e. force majeure clause) may be invoked, wherever considered appropriate, following the due procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re-fix 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. 7. On the basis of the observation made in the aforesaid judgment we exclude the period of lockdown while computing the limitation provided under Rule 34(5) of the Income Tax (Appellate Tribunal) Rule 1963. Order is, thus, pronounced in the open court. 8. In the result, Misc. Application is allowed. 9. The Registry is directed to place the matter on board for hearing upon giving notice to the respective parties. This Order pronounced in Open Court on 14/12/2020 - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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