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TaxTMI 
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2020 (7) TMI 306
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....Assessment order u/s 143(3), dated 31.03.2015. ITA 5523/Mum/2016 (Revenue) A.Y 2012-13 ITA 5913/Mum/2017 (Revenue) A.Y 2013-14 CIT(Appeals)-32,Mumbai - Order dated 20/06/2017. Assessment order u/s 143(3), dated 18.03.2016 As the issues involved in the abovementioned appeals are inextricably interlinked or in fact interwoven, therefore, the same are being taken up and disposed off together by way of a common order. We shall first advert to the cross-appeals for A.Y 2011-12. The impugned order has been assailed by the assesse on the following effective grounds of appeal before us: "1. The CIT(A) erred in upholding the reassessment proceedings initiated by the A.O under section 147 of the Act to be valid. 2. The CIT(A) failed to appreciate that jurisdictional pre-conditions necessary to be satisfied before assuming jurisdiction under sections 147 to 151 of the Act had not been fulfilled in the present case rendering the reassessment proceedings to be illegal and bad in law." On the other hand, the revenue has challenged the impugned order on the following grounds of appeal before us : "1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A....
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.... part project or on part fulfilment of the requirements stated in the provisions of the section." 2. Briefly stated, the assessee firm which is engaged in the business of a property developer had filed its return of income for A.Y 2011-12 on 29.09.2011, declaring its total income at Rs. Nil. Return of income filed by the assessee was processed as such u/s 143(1) of the Act. Subsequently, the case of the assessee was selected for scrutiny assessment u/s 143(2) of the Act. In the course of the assessment proceedings, it was observed by the A.O that the assessee had in its return of income claimed deduction of Rs. 29,69,84,644/- u/s 80IB(10) of the Act in respect of a housing project "Adityavardhan" that was developed by it at 186-B, Saki Vihar Road, Andheri (East), Mumbai. On the basis of the material furnished in the course of the assessment proceedings the A.O found the claim for deduction raised by the assessee u/s 80IB(10) in order, and accepted the same while framing the assessment u/s 143(3), vide his order dated 28.03.2013. 3. Subsequently, while framing the assessment for the immediately succeeding year i.e A.Y 2012-13, it was noticed by the A.O that the assessee had raised....
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....of the Act, the assessee had requested that its 'Original' return of income filed on 06.12.2011 for A.Y 2011-12 may be treated as a return filed in compliance to the same. Accepting the said request of the assessee the A.O had proceeded with the assessment and issued notices u/ss. 143(2)/142(1) of the Act. On a perusal of the assessment order, we find that the A.O had vide his office letter dated 20.07.2015 provided to the assessee a copy of the 'reasons to believe' on the basis of which its case was reopened u/s 147 of the Act. As is discernible from a perusal of the 'reasons to believe' the case of the assessee was reopened by the A.O u/s 147 of the Act for two reasons viz. (i). that in the course of the assessment proceedings in the case of the assessee for A.Y 2012-13 "fresh information" was received from MCGM that Building Completion Certificate/Occupation Certificate had not been issued to the assessee, and accordingly, the building had not been completed till date; and (ii). that the "built-up area" of some of the residential units constructed by the assessee exceeded the prescribed area allowable under Sec. 80IB(10). On receipt of the copy of the 'reasons to believe' the as....
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....e and handed over to them. It is an undisputed position that the assessee has constructed as well as handed over the road running on East side of the plot to MCGM. However the Assessee could not construct the road on the South side of the plot of land as where the road was to be constructed there is a hill on which there is a pylon i.e., a transmission tower for transmission of electricity of Tata Electric Company. Since the South side road was not constructed, MCGM has not accepted the handing over of the same. Since the housing project was approved after 01.04.2005, as per section 80-IB(10)(a)(iii) of the Act the said project ought to have been completed within 5 years from the end of the financial year in which the said project was approved i.e on or before 31.03.2012. 2. 17.06.2010 The construction of the said project was completed by the assessee before this date, as its architect Mr. Bhupendra Patrawala issued a Certificate stating that the latest amended plans for residential building had been approved by Municipal Corporation of Greater Mumbai vide its letter No. CE/4040/EPES/AL dated 17.12.2009 for which final commencement certificate had been granted on 23.12.2009. He ....
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....1.03.2011 were 54 and in respect of 44 flats the assessee had also granted possession to the purchasers. Upto 31.03.2012, the total number of flats sold stood at 92 of which possession has been granted by the assesee to the flat purchasers in respect of all the 92 flats. In respect of the flats sold by the assessee for which possession was also given to the flat purchasers, the electricity and the water bills have been met by the flat purchasers. They were also liable to share in the maintenance charges of the said building. Since the assessee had granted possession of almost 85% of flats to the flat purchasers before 31.03.2012, the presumption should be that the buildings were complete in all respects and were ready for occupation. 6. 29.09.2011 Assessee filed its return of income for A.Y 2011-12 declaring total income of Rs. Nil. Since it had fulfilled the conditions as prescribed under section 80-IB(10) of the Act it claimed deduction of Rs. 26,69,84,644/- under the said section. Accordingly, it was the claim of the assessee that since it had fulfilled all the conditions as prescribed u/s 80IB(10) of the Act, therefore, it had rightly raised the claim for deduction of Rs. 2....
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....he said project. Alongwith the said application, the assessee's architect had filed certain certificates/documents evidencing that the construction of the building was complete viz. (i). certificate from the site supervisor to the effect that the construction of the residential building was complete in accordance with regulations 45 and 46 of the Development Control Regulations; and (ii). certificate from Structural Consultants Engineers & Architects therein certifying that structural work of the building was carried out as per his structural design which complied with the requirement of I.S. Code No. 1893 for earthquake design and requirements as mentioned in clause Nos. 45 and 46 of the Development Control Regulations. Apart from that, it was submitted by the assessee that total number of flats sold upto 31.03.2011 were 54 out of which possession of 44 flats had already been given to the purchasers. Further, it was stated by the assessee that by the end of the next year i.e upto 31.03.2012 it had sold 92 flats and had delivered possession of all of them to the respective purchasers. In order to fortify its claim that the construction of the building was completed within the stipu....
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....foresaid deliberations concluded that the assessee had failed to comply with the mandate of Sec. 80IB(10)(a)(iii) of the Act. 8. As regards the observation of the A.O that as the built up area of all 3 BHK flats in the aforesaid project was more than 1000 sq. ft., therefore, the assessee had also violated the condition specified in Sec. 80IB(10)(c) of the Act, the same was rebutted by the assessee. It was submitted by the assessee that the area of the 3 BHK flats as per their calculation was 997 sq.ft. In order to fortify its aforesaid claim, the assessee had drawn support from the certificate of Shri. Bhupendra Patrawala, Architect, that was furnished in the course of the assessment proceedings. It was the claim of the assesee that while calculating the "built-up area" of the 3 BHK flats it had excluded the area of "dry balcony" as it was 6 inches below the floor level. On the basis of his aforesaid submissions, it was the claim of the assessee that as it had duly complied with the conditions contemplated in Sec. 80IB of the Act, therefore, its claim for deduction under the said statutory provision was in order. However, the A.O was not inclined to accept the said claim of the as....
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....re the CIT(A). As regards the claim of the assessee that the A.O had exceeded his jurisdiction in reopening the case of the assessee for the year under consideration, the CIT(A) was not inclined to accept the same. Insofar the declining of the assessee's claim for deduction u/s 80IB(10) by the A.O, for the reason, that as the "Building Completion Certificate" and "Occupation Certificate" was not obtained by the assessee from MCGM, therefore, the project viz. "Adityavardhan" could not be held to have been completed within the stipulated time period as envisaged in Sec. 80IB(10)(a)(iii) i.e latest by 31.03.2012, the same did not find favour with the CIT(A). It was observed by the CIT(A) that the withholding of the aforesaid certificates by the local authority was because the assessee which as per the approved plan was mandated to construct and hand over a 18.3 mtr wide DP road on the South side of the plot had failed to comply with the said requirement. On a perusal of the facts borne from the records, it was observed by the CIT(A) that the construction of the aforesaid road was being obstructed by a power pylon transmission line belonging to Tata Electric Company, which had to be re....
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....12. On the basis of his aforesaid deliberations, the CIT(A) after upholding the validity of the jurisdiction assumed by the A.O u/s 147 of the Act, however, on merits found favour with the claim of deduction raised by the assessee u/s 80IB(10) of the Act. 13. Both the assessee and the revenue being aggrieved with the order of the CIT(A) have carried the matter by way of cross-appeals before us. Insofar the assessee is concerned, it has assailed the order of the CIT(A), to the extent, he had upheld the validity of the jurisdiction assumed by the A.O u/s 147 of the Act. On the other hand, the revenue has challenged the order of the CIT(A) on the ground that he had erred both in law and the facts of the case in setting aside the well reasoned order of the A.O and allowing the assessee's claim for deduction u/s 80IB(10) of the Act. 14. We shall first advert to the contentions advanced by the ld. A.R in support of his claim that the A.O had traversed beyond the scope of his jurisdiction in reopening the case of the assessee. At the very outset of the hearing of the issue under consideration, it was submitted by the ld. Authorised representative (for short "A.R') for the assessee, that....
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....he 'Original' assessment proceedings (Page 13 -23 of 'APB'). Also, our attention was drawn to the "Closing stock" of Wing A & B- flats, as were lying with the assessee as on 31.03.2011 (Page 26-29 of 'APB'). The ld. A.R further took us through a letter dated 16.03.2013 filed by the assessee in the course of the assessment proceedings, wherein in compliance to the details called for by the A.O in the course of the 'Original' assessment proceedings, the assessee had furnished its reply alongwith supporting documents viz. area of land alongwith supporting documents; copy of Commencement Certificate issued by MCGM; copy of the plan of the project approved by MCGM; copy of the application filed by the assessee's architect as regards the completion of the project etc (Page 30-31 of 'APB'). Further, the ld. A.R took us through a letter of Shri Bhupendra Patrawala, Architect, dated 17.06.2010, wherein it was certified by him that the latest amended plans for residential buildings comprising of two wings of the aforesaid property had been approved by MCGM, vide its letter dated 17.12.2009, and full "Commencement Certificate" had been granted on 23.12.2009 (Page 32 of 'APB'). Also, the ld. A....
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.... placed by the ld. A.R on the judgment of the Hon'ble High Court of Bombay in the case of GKN Sinter Metals Ltd. Vs. Ms. Ramapriya Raghavan, ACIT & Ors. (2015) 371 ITR 225 (Bom) and that of the Hon'ble Supreme Court in the case of CIT Vs. Kelvinator of India Ltd. (2010) 320 ITR 561 (SC). Relying on the said judicial pronouncements, it was submitted by the ld. A.R that an assessment cannot be reopened on a mere 'change of opinion'. It was further submitted by the ld. A.R that now when the assessee in course of verification of its claim for deduction u/s 80IB(10) of the Act, had furnished the requisite details/documents as were called for by the A.O during the 'Original' assessment proceedings, thereafter it was not obligated to inform the A.O of the probable inferences that may be raised on the basis of the facts disclosed. The said contention was advanced by the ld. A.R to support his claim that though the assessee in the course of the 'Original' assessment proceedings was only obligated to furnish the requite documents/details as were called for by the A.O in respect of its claim for deduction raised u/s 80IB(10) of the Act, but thereafter, there was no obligation cast upon the as....
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....es, however, the assessee instead of complying with the said requirement had furnished the "Building Completion Certificate" issued by its architect (Page 36 of 'APB'). It was further submitted by the ld. D.R that as in the present case the reopening was done within a period of four years from the end of the assessment year, therefore, the requirement of proving that there was no full and true disclosure on the part of the assessee was not to be shown. It was submitted by the ld. D.R that the only issue which was required to be examined for verifying the validity of the reopening of the concluded assessment of the assessee for the year under consideration was as to whether was there any "tangible material" with the A.O, on the basis of which he could validly arrive at a satisfaction that the income of the assessee chargeable to tax had escaped assessment. It was submitted by the ld. D.R that the 'Original' assessment in the case of the assessee for the year under consideration i.e A.Y 2011-12 was framed by the A.O vide his order passed u/s 143(3), dated 28.03.2013, wherein the assessee's claim for deduction u/s 80IB(10) was accepted. However, it was in the course of the assessment....
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....8.03.2013, had raised exhaustive queries as regards the eligibility of the assessee towards claim of deduction u/s 80IB(10) of the Act. Being of the view, that the claim raised by the assessee for deduction u/s 80IB(10) was in order, the same was allowed by the A.O, as such. However, as observed by us hereinabove, it was only in the course of the assessment proceedings in the case of the assessee for A.Y 2012-13 that the A.O was informed by the MCGM vide its letter No. DyChE/BP/19415/ES, dated 19.03.2015, that the "Building Completion Certificate" and "Occupation Certificate" was not issued to the assessee on account of certain failure on the part of the latter as regards effecting compliance to the building I.O.D (Intimation of Disapproval) conditions. Accordingly, in the backdrop of the aforesaid information received subsequent to the culmination of the 'Original' assessment framed vide order passed u/s 143(3), dated 28.03.2013 for A.Y 2011-12, that the A.O had arrived at a bonafide belief that the failure on the part of the assessee to complete the project viz. "Adityavardhan" within the stipulated time period contemplated in Sec. 80IB(10)(a)(iii) of the Act, had rendered it ine....
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....he backdrop of the aforesaid settled position of law, we shall deliberate upon the aspect as to whether the A.O on the basis of "tangible material" had came to a conclusion that the income of the assessee chargeable to tax had escaped assessment, and thus reopened its concluded assessment u/s 147 of the Act, or had done so on the basis of a mere "change of opinion". As is discernible from the facts borne from the records, the assessee in the course of the "Original" assessment proceedings had despite specific direction by the A.O failed to place on record the "Completion Certificate" of its project viz. "Adityavardhan", as issued by the local authorities. In fact, as observed by us hereinabove, the assessee had filed with the A.O a building completion certificate issued by its architect i.e Mr. Bhupendra Patrawala. It was only in the course of the assessment proceedings in the case of the assessee for the immediately succeeding year i.e A.Y 2012-13 that the A.O was intimated by the MCGM vide its letter No. DyChE/BP/19415/ES, dated 19.03.2015, that the "Building Completion Certificate" and "Occupation Certificate" was not issued to the assessee, till date, on account of certain fail....
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....ajesh Jhaveri Stock Brokers (P) Ltd. (2007) 291 ITR 500 (SC). We find that it is the claim of the ld. A.R that the A.O while framing the 'Original' assessment, vide his order passed u/s 143(3), dated 28.03.2013 for the year under consideration i.e A.Y 2011-12, had accepted the 'Building Completion Certificate' issued by the assessee's architect i.e Mr. Bhupendra Patrawala, alongwith other documents that were placed on his record by the assessee, for concluding, that the assessee had completed its project viz. "Adityavardhan" within the stipulated time period i.e latest by 31.03.2012. In the backdrop of his aforesaid claim, it was submitted by the ld. A.R that the subsequent reopening of its concluded assessment on the ground that the said project was not completed till date, for the reason, that MCGM had not issued "Completion Certificate"/"Occupation Certificate" would tantamount to reopening on the basis of a mere 'change of opinion' of the successor A.O, which is not permissible in the eyes of law. We are afraid that the said contention of the ld. A.R does not find favour with us. On a bare perusal of the 'Explanation (ii)' to Sec. 80IB(10)(a) of the Act, the date of completion ....
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....yChE/BP/19415/ES, dated 19.03.2015, that the "Building Completion Certificate" and "Occupation Certificate" was not issued to the assessee on account of certain failure on its part to comply with the building I.O.D (Intimation of Disapproval) conditions. We hold a strong conviction that the said "fresh information" received by the A.O from MCGM justified formation of a bonafide belief on his part that the income of the assessee chargeable to tax had escaped assessment. Apart from that, we find that in the course of the assessment proceedings for the immediately succeeding year i.e A.Y 2012-13, specific information was gathered by the A.O that some of the residential units constructed by the assessee in its housing project viz. "Adityavardhan" exceeded the maximum area allowable u/s 80IB(10)(c) of the Act. In our considered view, the said information gathered by the A.O on the basis of verifications carried out in the course of the assessment proceedings for A.Y 2012-13, therein justifiably formed a basis for arriving at a belief that the assessee had contravened the provisions of Sec. 80IB(10)(c) of the Act, and resultantly its income chargeable to tax to the extent such deduction ....
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....chargeable to tax had escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under subsection (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year. In our considered view, as the case of the assessee before us had been reopened within a period of four years from the end of the relevant assessment year, therefore, the aforesaid judicial pronouncement being distinguishable on facts would not assist its case. (ii). GKN Sinter Metals Ltd. Vs. Ms. Ramapriya Raghavan ACIT & Ors. (2015) 371 ITR 225 (Bom) : The ld. A.R had in the course of hearing of the appeal had relied on the aforesaid judgment of the Hon'ble High Court of Bombay. Facts in brief are that the assessee petitioner had three manufacturing units - one located at Pimpri and two at Ahmednagar. The two manufacturing units of the assessee located at Ahmednagar were entitled to the benefit of tax holiday under Sec. 80-IA/80-IB of the Act, as they were situated in a backward region. Along with its return of income for A.Y 2002-03, the....
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....oncluded that the A.O in the course of the regular assessment had called upon the assessee to furnish details as regards its claim for deduction u/ss. 80-IA/80-IB of the Act. It was further noticed by the Hon'ble High Court that the A.O on being satisfied with the assessee's reply, had vide his assessment order passed u/s 143(3), dated 09.03.2005 accepted its claim for deduction u/ss. 80-IA/80-IB of Rs. 2.08 crores. As such, it was in the backdrop of the aforesaid facts that the Hon'ble High Court had observed that the A.O while passing the assessment order u/s 143(3), dated 09.03.2005, had formed an opinion in respect of allocation of expenses amongst the three manufacturing units for deduction u/ss. 80-IA/80-IB of the Act. Further, the Hon'ble High Court had also declined to accept the claim of the revenue that the reopening was based on the communication dated January 15, 2007 that was received by the A.O from the Addl. CIT who had assessed the assessee petitioner to tax for A.Y 2004-05. It was observed by the Hon'ble High Court that the aforesaid communication dated January 15, 2007, was not even referred in the reasons recorded while issuing the impugned notice dated March 14,....
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....'. As such, holding a conviction that the A.O had rightly assumed jurisdiction and reopened the case of the assessee u/s 147 of the Act, we uphold the same to the said extent. Grounds of appeal Nos. 1 & 2 are dismissed. 20. Resultantly, the appeal of the assessee is dismissed. ITA No. 5912/Mum/2017 A.Y 2011-12 (Revenue's appeal) 21. We shall now take up the appeal of the revenue for A.Y 2011-12. The Revenue has assailed the order of the CIT(A), to the extent he had set aside the order of the A.O and held the assessee's claim for deduction u/s 80IB as being in order. As elaborated at length by us hereinabove, the A.O vide his reassessment order passed u/s. 143(3) r.w.s 147 of the Act, dated 18.03.2016, had withdrawn the assessee's claim for deduction of Rs. 26,69,84,644/- u/s 80IB of the Act. The A.O had held the assessee to have failed to carry out a cumulative satisfaction of the requisite conditions contemplated in Sec. 80IB(10) of the Act, on two counts viz. (a). that as per intimation received by the A.O from the MCGM vide its letter No. DyChE/BP/19415/ES, dated 19.03.2015, as the "Building Completion Certificate" and "Occupation Certificate" was not issued to the assessee....
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....t statutorily has to be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority. Further, it was submitted by the ld. D.R that as the built-up area of all 3 BHK residential units and flats in the assessee's housing project viz. "Adityavardhan" had exceeded the maximum allowable area of 1000 sq. feet, therefore, the assessee having violated the conditions of Sec. 80IB(10)(c) of the Act, was thus rightly held by the A.O to be ineligible for claim of deduction under the said statutory provision. In the backdrop of his aforesaid contentions, it was submitted by the ld. D.R that the CIT(A) was in error in setting aside the well reasoned order of the A.O in context of the issue under consideration and holding the assessee as eligible for claim of deduction u/s 80IB(10) of the Act. 23. Per contra, the ld. A.R supported the order of the CIT(A), to the extent he had held that the assessee's claim for deduction u/s 80IB of the Act was in order. It was submitted by the ld. A.R, that as it had obtained "Commencement Certificate" from MCGM on 18.07.2006 for its project viz. "Adityavardhan" which comprised of 2 wings each of s....
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....Proposal, MCGM, dated 02.07.2010 that the drainage system in the project was complete; (iv). provision of water connection in the buildings w.e.f 23.12.2011; and (v). confirmation of the Assistant Commissioner L-Ward in MCGM, dated 15.11.2011 that the flats of the housing project were occupied. Ld. A.R further submitted that the fact that out of 108 flats in the housing project the assessee had sold and given possession of 92 flats by 31.03.2012, in itself proved to the hilt that the construction of the housing project was complete well within the stipulated time period. The ld. A.R also took us through the certificates of independent professionals viz. (i). certificate of its architect viz. Mr. Bhupendra Patrawala, stating that the onsite works of the project i.e "Adityavardhan" were completed as regards the residential buildings in all respects and the flats were ready for occupation; (ii).application filed by the architect with MCGM for grant of "Occupation Certificate" in respect of the residential buildings in the said project; (iii). certificate from the site supervisor to the effect that the construction of the residential building was complete in accordance with regulations....
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.... and PCIT Vs. Aarham Softronics (2019) 261 Taxman 529 (SC). Also, reliance was placed by the ld. A.R on the orders of the coordinate benches of Tribunal in the case of (i). Puran Ratilal Mehta Vs. ACIT, Circle 23(3), Mumbai (2019) 175 ITD 190 (Mum); and (ii). Ashiana Amar Developers Vs. ITO (2016) 178 TTJ 474 (Kol). Further, rebutting the observation of the A.O that the built up area of all 3 BHK flats in the aforesaid project was more than 1000 sq. ft., it was submitted by the ld. A.R that the area of the 3 BHK flats as per their calculation was 997 sq.ft. In order to fortify his aforesaid claim, the ld. A.R had drawn our attention to the certificate of Shri. Bhupendra Patrawala, Architect, that was filed with the A.O in the course of the assessment proceedings. It was the claim of the ld. A.R that while calculating the "built-up area" of the 3 BHK flats it had excluded the "dry balcony area" as it was 6 inches below the floor level. It was submitted by the ld. A.R that as per the definition of the term "built-up area" in Sec. 80IB(14)(a), only that area which is at floor level has to be counted. Further, it was averred by the ld. A.R that the "dry balcony area" did not form part....
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....t encompass such literalism which would lead to absurdity and go against the legislative intent. Accordingly, it was submitted by the ld. A.R that the rule of strict interpretation was to be utilised in a manner to decipher the legislative intent and thereafter provide an appropriate interpretation for the exemption provided under the provisions of the Act which would be neither too narrow nor too broad. It was further submitted by the ld. A.R that the Hon'ble Apex Court had observed that the doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardships in cases where a party does all that can reasonably be expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the "essence" or the "substance" of the requirements. The ld. A.R drawing support from the aforesaid observations of the Hon'ble Apex Court, therein submitted, that now when the assessee by having completed the construction of the housing project within the stipulated time period i.e latest by 31.03.2012, had substantially complied with the mandate of Sec. 80IB(10) of the Act, then merely for the reason that as per the approved p....
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.... the local authority on or after the 1st day of April, 2004 [but not later than the 31st day of March, 2005], within four years from the end of the financial year in which the housing project is approved by the local authority. [(iii) in a case where a housing project has been approved by the local authority on or after the 1st day of April, 2005, within five years from the end of the financial year in which the housing project is approved by the local authority.] Explanation.-For the purposes of this clause,- (i) in a case where the approval in respect of the housing project is obtained more than once, such housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with ....
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....y the local authority. As is discernible from the records, the A.O while framing the assessment had observed that as the assessee in the course of the assessment proceedings for A.Y 2012-13 despite specific directions had failed to furnish evidence in respect of completion of the project by placing on record the "Building Completion Certificate" as well as the "Occupation Certificate" issued by the local authority, therefore, the A.O had called for the requisite information by issuing notice u/s 133(6) of the Act to MCGM. Information was received by the A.O from MCGM vide its letter No. DyChE/BP/19415/ES, dated 19.03.2015, which revealed that the "Building Completion Certificate" and "Occupation Certificate" was not issued to the assessee, till date, on account of certain failure on its part as regards complying with the building I.O.D (Intimation of Disapproval) conditions. The letter dated 19.03.2015 received by the A.O from MCGM read as under: "MUNICIPAL CORPORATION OF GREATER MUMBAI No. DyChE/BP/19415/ES, dated 19.03.2015 Office of the Dy. Chief Engineer (Building Proposal) E.S., Near Raj Legacy Paper Mill Compund L.B.S Marg, Vikhroli (West), Mumbai - 400083 To, Shri Du....
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.... Act, we find that the assessee was obligated to complete the construction of the housing project latest by 31.03.2012. As observed by us hereinabove, the legislature in all its wisdom, vide the Finance (No.2) Act, 2004, w.e.f 01.04.2005 had carried out an intentional, purposive and conscious insertion of an "Explanation" to Clause (a) of Sec. 80IB(10) of the Act. On a perusal of clause (ii) of the "Explanation", we find that it has been therein provided that the date of completion of construction of the housing project shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority. As such, an assessee w.e.f A.Y 2005-06 is obligated to substantiate its claim of having completed the housing project within the stipulated time period by placing on record the completion certificate issued by the local authority. Although, we are in agreement with the contention of the ld. A.R that in cases where but for certain technical reasons the completion certificate is not issued by the local authority, say for instance the assessee having completed the housing project within the stipulated time period had applied for the com....
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....our considered view, the assessee was obligated to complete the construction of the housing project as per the approved plan and comply with the I.O.D conditions, and by no means could be permitted to construe the completion of the construction of buildings as completion of the housing project. 28. We shall now advert to the claim of the ld. A.R that as the failure to construct and hand over 18.30 mt wide D.P Road passing through the south side of the plot to MCGM as per the I.O.D conditions was for reasons beyond its control, therefore, it could not have been justifiably be denied of its claim for deduction u/s 80IB(10) of the Act. We are unable to agree with the said claim of the assessee. As observed by us hereinabove, the obligation to construct and hand over 18.30 mt wide D.P Road passing through the south side of the plot to MCGM as per the I.O.D conditions was there at the time of approval of plan. In other words, the obligation to construct the 18.30 mt wide D.P Road passing through the south side of the plot to MCGM formed part of the I.O.D conditions, and was not an obligation that was subsequently cast upon the assessee. In fact, the assessee at the time of approval of ....
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....admittedly failed to comply with the building I.O.D (Intimation of Disapproval) conditions, and had not completed the "housing project" as per the approved plan. On the basis of our aforesaid observations, we are of the considered view that as the aforesaid case is distinguishable on facts, therefore, the same would not assist the case of the assessee before us. (ii). CIT Vs. Tarnetar Corporation (2014) 362 ITR 174 (Guj) (a). In the aforesaid case, the fact that the assessee had completed the construction of the "housing project" within the stipulated time period i.e well before 31.03.2008, was not in doubt. In fact, the assessee had not only completed the construction two years before the final date and had applied for the "Building Use" (for short "BU") permission, which was rejected not on the ground that the construction was not completed but on some other technical ground. However, thereafter upon revised efforts of the assessee the "BU" was granted by the local authority vide its order dated March 19,2009. Accordingly, it was in the backdrop of the aforesaid facts that the Hon'ble High Court while allowing the assessee's claim for deduction, had observed, that where subst....
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....on the certificate from the local authority would only result in impossibility of performance on the part of the assessee. Observing, that the "housing project" was completed within the allotted time frame and the possession certificate was also duly furnished before the A.O, the Tribunal concluded that the deduction u/s 80-IB(10) could not be denied on the ground of non-production of "completion Certificate" from the local authority. (b) As in the aforesaid case, the assessee had admittedly completed the "housing project" within the stipulated time period, therefore, the Tribunal had concluded that the assesse's claim for deduction u/s 80-IB(10) could not be declined on the basis of a technical issue. In the case before us, as the assessee had admittedly failed to complete its "housing project" viz. Adityavardhan within the stipulated time period, therefore, the said fact in itself places the facts of the case before us as distinguishable in comparison to those before the Tribunal in the aforesaid matter. Accordingly, we are afraid that the reliance placed by the ld. A.R on the aforesaid order of the ITAT, being distinguishable on facts would not be of any assistance for adjud....
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....y pressing into service the "Principles of Statutory Interpretation" by Justice G.P Singh, submitted, that the general rule that non-compliance of mandatory requirements results in nullification of the act is inter alia subject to an exception viz. where the performance of the requirement is impossible, then the performance of the same is to be excused. Accordingly, it was submitted by the ld. A.R that the failure on the part of the assessee to construct the 18.30 mt wide D.P Road passing through the south side of the plot, being an act which could not possibly be performed, would clearly fall within the exceptions to the mandatory requirements envisaged in Sec. 80IB(10) of the Act. To sum up, it was averred by the ld. A.R that as the assessee had substantially complied with the mandate of Sec. 80IB(10) and had completed the construction of the "housing project" viz. Adityavardhan within the prescribed time limit, therefore, it could not be divested of its claim for deduction contemplated under the said statutory provision. We have given a thoughtful consideration to the aforesaid claim of the ld. A.R and in the backdrop of the facts of the case before us are unable to persuade our....
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....of the aforesaid judgment, we find that the Hon'ble Apex Court had deliberated on the aspect as to how a concession/exemption/incentive/rebate/subsidy notifications or provisions are to be construed. In its said judgment the Hon'ble Apex Court had observed that before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section, and if the words of the charging section are ambiguous or open to two interpretations then the benefit of interpretation of such charging provisions has to be given to the assessee. In so far interpretation of an exemption proviso is concerned, the Hon'ble Apex Court had observed that in case of any ambiguity in interpretation of an exemption notification or exemption clause, the benefit of such ambiguity must go in favour of the Revenue/State. Apart from that, it was observed by the Hon'ble Apex Court that the benefit of proving applicability of exemption would be on the assessee who would be obligated to show that his case comes squarely within the parameters of the exemption notification or exemption clause. As regards the stages involved in interpreting an exemption provision, it was obser....
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....d that the Hon'ble Apex Court had observed that the doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive non-compliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. It was further observed, that an exemption from taxation is to be allowed based wholly by the language of the notification and exemption cannot be gathered by necessary implication or by construction of words. In other words one has to look to the language alone and the object and purpose for granting exemption is irrelevant and immaterial. 32. In the backdrop of the aforesaid observations of the Hon'ble Supreme Court in the case of Commissioner Customs (Imports), Mumbai Vs. Dilip Kumar And Company And Others (2018) 9 SCC 1, we are in agreement with the contention advanced by the ld. D.R that if the words used in a statute are clear, plain and unambiguous and only one meaning can be inferred, the courts are bound to give effect to the said meaning irrespective of co....
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.... could be brought within the meaning of an unimportant or tangential requirement, as had been canvassed by the ld. A.R before us. In fact, we are of a strong conviction that completion of the construction of a "housing project" by an assessee developer, as per the approved plan, within the prescribed time frame forms the very basis for the eligibility of an assessee to claim deduction u/s 80IB(10) of the Act. On the basis of our aforesaid observations, we are of the considered view that the assessee had failed to strictly comply with the conditions or requirements that were important to render it eligible for deduction u/s 80IB(10) of the Act. Also, we do not find favour the claim of the ld. A.R that applying of the rule of plain meaning of Sec. 80IB(10) would result into hardship or inconvenience to the assessee, as the said fact in our understanding would not have any bearing on the entitlement or eligibility of the assessee for claim of deduction under the said statutory provision. As observed by the Hon'ble Apex Court in the case of Dilip Kumar (supra), the fact that applying of the rule of plain meaning had resulted into any hardship or inconvenience cannot be allowed to form ....
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....of the Act. Accordingly, in our considered view, the A.O had rightly concluded that de hors satisfaction of the conditions contemplated in Sec. 80IB(10) of the Act, the assessee was not entitled for claim of deduction under the said statutory provision. We thus not finding favour with the order of the CIT(A), to the extent he had concluded that the assessee had satisfied the conditions contemplated in Sec. 80IB(10) of the Act, 'set aside' his order. The Grounds of appeal No. 1 & 4 raised by the revenue are allowed. 33. We shall now take up the grievance of the revenue that the CIT(A) has erred in law and the facts of the case in concluding that the assessee had fulfilled the conditions laid down in Sec. 80IB(10)(c) of the Act, despite the fact that area of some of the flats was more than the prescribed area. On a perusal of Clause (c) of Sec. 80IB(10) of the Act, we find that the same reads as under : "80IB(10) The amount of deduction in the case of an undertaking developing and building housing projects approved before the [31st day of March, 2008], by a local authority shall be hundred per cent of the profits derived in the previous year relevant to any assessment year from su....
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....its aforesaid claim, the assessee had drawn support from the certificate of Shri. Bhupendra Patrawala, Architect, that was furnished in the course of the assessment proceedings. It was submitted by the assessee that while calculating the "builtup area" of the 3 BHK flats it had excluded the "dry balcony area" as it was 6 inches below the floor level. On the basis of its aforesaid submissions, it was the claim of the assessee that it had duly complied with the conditions contemplated in Sec. 80IB(10)(c) of the Act. However, the A.O was not inclined to accept the said claim of the assessee. Observing, that unlike the flower bed area which was approximately 2 feet below the floor level and was not usable, the A.O held a conviction that the "dry balcony" area was only 6 inches below the floor level and was usable. Also, on the basis of a report of his inspector who had undertaken an open field enquiry u/s 142(2) of the Act, and had carried out physical verification of a flat (held by the assessee as stock-in-trade), it was gathered by the A.O that the 'dry balcony' area was almost at the floor level and was in the nature of a usable area. Apart from that, it was observed by the A.O t....
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....(10)(c) of the Act. We find that the definition of the term "built-up area" has been made available on the statute vide the Finance (No.2) Act, 2004, w.e.f 01.04.2005, and the said term thereafter stands defined in Sec. 80IB(14)(a) of the Act, as under: "80IB(14) For the purposes of this section,- (a) "built-up area" means the inner measurements of the residential unit at the floor level, including the projections and balconies, as increased by the thickness of the walls but does not include the common areas shared with other residential units; As the "housing project" of the assessee viz. Adityavardhan was approved by MCGM after 01.04.2005, therefore, the aforesaid definition of the term "built-up area" would be applicable in its case. 36. In order to deal with the issue in hand, it would be relevant to briefly cull out the reasons which had led the legislature to make available the definition of the term "built-up area" in the statute. As observed by the Hon'ble Supreme Court in the case of CIT Vs. Sarkar Builders (2015) 375 ITR 392 (SC), prior to insertion of Section 80IB(14)(a), in many of the rules and regulations of the local authority approving the housing project "bui....
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....nced that under the new DCR, areas for balcony, flower-beds, terrace, voids, niches would be counted in the FSI. Hence, even as per the rules of the local authority, the area for balcony is to be added for computation of the 'built-up area'. 37. As observed by us hereinabove, the CIT(A) accepted the claim of the assessee that the area of neither of the flats exceeded the prescribed limit of 1000 sq. ft. It was observed by the CIT(A) that as claimed by the assessee, as per the definition of "built-up area" in Sec. 80IB(14)(a) only that area which was at floor level was to be counted, therefore, the "dry balcony" which was 6 inches below the floor level was liable to be excluded. Referring to Clause 25 - Page 25 of an "agreement to sell", it was further observed by the CIT(A) that the "dry balcony" area did not form part of the residential unit which was the subject matter of sale. It was thus observed by the CIT(A), that the service projection neither formed part of the residential unit nor was sold to the flat purchaser. As such, the CIT(A) was of the view that the "dry balcony" area was in the nature of a service projection which was relevant from the point of view of servicing t....
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...., Mumbai in the case of ITO Vs. Siddhivinayak Homes, ITA No. 8726/Mum/2010 - A.Y 2007-08 & ITA No. 5986/Mum/2011-A.Y 2008-09 AND ITAT, Hyderabad in the case of Modi Builders & Realtors (P) Ltd., (2011) 12 taxmann.com 129 (Hyd), as had been relied upon by the A.O. In so far the observation of the CIT(A) that the "dry balcony" has not been sold by the assessee to the flat purchaser, the said fact as per records remains so. But then, we are unable to comprehend that de hors transfer of ownership of the same, on what basis the said area was being exclusively enjoyed by a specific flat purchaser. Although, in case the "dry balcony" formed part of a common area that was shared by the flat purchaser with other residential units, then the same would clearly fall in the exclusion contemplated in the definition of "built-up area" in Sec. 80IB(14). We find that though the CIT(A) had observed that the "dry balcony" was a service projection, which as per him would be relevant from the point of view of servicing the building in case of any emergency or when repairs are required to be carried out, but then what was the basis for arriving at such a conclusion is not discernible from record. On th....
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....f the A.O for fresh adjudication. In case, the flat purchaser is de facto in exclusive possession/enjoyment of the "dry balcony" attached with the flat, then the area of the same shall be included while computing the "built-up area" of such flat. However, if such projection is either in the nature of a service projection to be used for servicing the building or carrying out repairs of the building, or a common area shared with the other residential units, then the same would not be included in the "built-up area" of the flat. Before parting, we may herein observe that the ld. A.R in the course of hearing of the appeal had relied on the judgment of the Hon'ble High Court of Bombay in the case of Commissioner of Incometax Vs. M/s Ravirakj Kothari Punjabi Associates [ITA No. 1628 of 2013; dated 24.04.2015] and that of the Hon'ble High Court of Madras in the case of CIT, Chennai Vs. Mahalakshmi Housing (2014) 222 Taxman 356 (Mad). On a perusal of the said judgments, we find that in both the cases the issue before the Hon'ble High Courts was as to whether or not open terrace/exclusive terrace would form part of the "built-up area". However, as the issue before us is as to whether or no....
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....Vs DCIT, 22 DTR 1 (Pune); (ix). Jindal Mittal Griha (2017) 51 CCH 240 (Pune); Nirman Pvt. Ltd. Vs. ITO and (x). Varun Developers Vs DCIT, 7 Taxcorp (AT) 1978 (Pune). Before parting, we may herein observe that our findings recorded in context of the issue under consideration, are without prejudice to our observations recorded as regards the eligibility of the assessee towards deduction u/s 80IB(10)(a), as dealt with at length hereinabove.The Ground of appeal No. 5 raised by the revenue is dismissed in terms of our aforesaid observations 40. We shall now advert to the grievance of the revenue that the CIT(A) has erred in allowing deduction u/s 80IB(10) of the Act, despite the fact that the assessee had claimed high gross profit of 63.08%. As is discernible from the orders of the lower authorities, we find that the A.O taking note of the fact that the assessee had shown a GP rate of 63.08% which was excessive in its line of business, had stopped short of deciding the matter against the assessee on the said ground alone. We have perused the order of the CIT(A) and concur with his view that the A.O had failed to point out any arrangement of business between the assessee and any other p....
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....the assessee had not fulfilled all the conditions laid down in the provisions of the Act. 2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing deduction under section 80IB(10) of the Act to the assessee inspite of the fact that the assessee did not complete its project within the time as stipulated in the provisions of section 80IB(10)(a)(iii) of the Act. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in allowing deduction under section 80IB(10) of the Act to the assessee when the assessee had failed to produce the Building Completion Certificate and the Occupation Certificate as required under 80IB(10)(a)(iii) r.w explanation (ii) of the Act. 4. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in relying upon the judgment of Hon'ble Bombay High Court decision in the case of CIT Vs. Hindustan Samuh Awas Ltd. (2015) 62 Taxmann.com 175 (Bom) without appreciating that the facts of the present case are totally different from the facts of the case in the above decision. In Hindustan Samuh Awas Ltd. (supra), the Hon'ble High Cout held that since the assessee had com....
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....t craves leave to amend or alter any ground or add a new ground." 43. Briefly stated, the assessee firm had e-filed its return of income for A.Y 2012-13 on 29.09.2012, declaring its total income at Rs. Nil. Subsequently, the case of the assessee was selected for scrutiny assessment u/s 143(2) of the Act. In the course of the assessment proceedings, it was observed by the A.O that the assessee had in its return of income claimed deduction of Rs. 19,20,04,491/- u/s 80IB(10) of the Act in respect of a housing project, viz. "Adityavardhan" that was developed by it at 186-B, Saki Vihar Road, Andheri (East), Mumbai. 44. In the course of the assessment proceedings it was observed by the A.O that the assessee had failed to comply with the requisite conditions envisaged in Sec. 80IB(10) of the Act. As per the details gathered by the A.O in the course of the assessment proceedings, it stood revealed viz. (a). that the assessee had not completed its housing project viz. "Adityavardhan" within the stipulated period contemplated in Sec. 80IB(10)(a)(iii) of the Act; and (b). that the built up area of all 3 BHK flats in the said project was more than 1000 sq. ft. which was in violation of the c....
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....), therein observed that the facts borne from the records viz. purchasers of the flats had taken possession and were residing in the said flats; approvals were obtained by the assessee from the Fire Brigade authority, Lift Inspector, Asst. Engineer MCGM for drainage works etc., evidenced that the assessee had completed the physical construction of the project. Accordingly, the CIT(A) holding a conviction that the assessee had completed its project viz. "Adityavardhan" within the time allowed u/s 80IB(10)(a)(iii), therein vacated the adverse inferences that were drawn by the A.O. 46. As regards the view of the A.O that the area of certain flats in the project of the assessee exceeded the prescribed limit of 1000 sq. ft, it was observed by the CIT(A) that the judicial pronouncements relied upon by the assessee being distinguishable on facts would not assist the case of the assessee. Observing, that the issue involved in the present appeal was squarely covered by the order of the ITAT, Mumbai in the case of ITAT, Mumbai in the case of ITO Vs. Siddhivinayak Homes, ITA No. 8726/Mum/2010, A.Y 2007-08 & ITA No. 5986/Mum/2011, A.Y 2008-09, the CIT(A) concluded that the "dry balcony" area ....
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....r of the CIT(A) has carried the matter in appeal before us. We shall first deal with the grievance of the assessee. The assessee has assailed the order of the CIT(A), for the reason, that he had erred in disallowing the assesses claim for deduction of Rs. 4,52,95,102/- u/s 80IB(10) in respect of flat nos. 1,2 and 7 on each floor of the building. The genesis of the controversy involved pertains to the construing of the term "built-up area" by the CIT(A), who as per the assessee had erred in concurring with the A.O that the area of the "dry balcony" is to be included for the purpose of calculating the "built-up area" of the flats within the meaning of Sec. 80IB(14)(a) of the Act. As observed by us hereinabove, it is only pursuant to inclusion of the area of "dry balcony" (30 sq. ft), that the "built-up area" of the flat nos. 1, 2 and 7 on each floor of the building is found to have exceeded the prescribed limit of 1000 sq.ft. As such, the disallowance of the assesse's claim for deduction of Rs. 4,52,95,102/- pertains to the flat nos. 1,2 and 7 on each floor of the building in the assessee's project. We find that the construing of the term "built-up area" as envisaged in Sec. 80IB(14)....
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....e CIT(A) had erred in allowing pro rata deduction u/s 80IB(10), failing to appreciate that the provisions of Sec. 80IB(10) allowed deduction only upon completion of the entire project and not on part project or on part fulfilment of the requirements stated in the provisions of the section; and (iii). that the CIT(A) had erred in relying on the order of the tribunal in the case of M/s Ekta Sankalp Developers, Mumbai, as the same was distinguishable on facts. 51. We shall first advert to the claim of the revenue that the CIT(A) had erred in concluding that the assessee had duly complied with the provisions of Sec. 80IB(10)(a)(iii) of the Act, and completed the construction of its housing project within the prescribed limit. As the facts and the issue involved in the present appeal of the assessee in context of the issue under consideration remains the same as were there before us in the appeal of the revenue in the assessee's own case for the immediately preceding year i.e A.Y 2011-12, in ITA No. 5912/Mum/2017, therefore, our order therein passed while disposing off the Grounds of appeal No. 1 & 4 in the said appeal, shall apply mutatis mutandis for the purpose of disposal of Groun....
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....onstruction of the housing project within the meaning of Sec. 80IB(10)(a)(iii), therefore, its claim for deduction u/s 80IB would fail on the said count itself. The Ground of appeal No. 5 is disposed off in terms of our aforesaid observations. 54. We shall now advert to the grievance of the revenue that the CIT(A) has erred in allowing deduction u/s 80IB(10) of the Act, despite the fact that the assessee had claimed high gross profit of 61.99%. As the said issue had been adjudicated by us in the appeal filed by the revenue in the case of the assessee for the immediately preceding year i.e A.Y 2011-12 in ITA No. 5912/Mum/2017, therefore, our order passed while disposing off the Ground of appeal No. 3 in revenue's appeal in the assessee's own case for A.Y 2011-12, ITA No. 5912/Mum/2017 shall apply mutatis mutandis for the purpose of disposing off the Ground of appeal No. 1 of the present appeal of the revenue for A.Y 2012-13. Accordingly, the Ground of appeal No. 1 raised by the revenue are on the same terms dismissed. 55. Resultantly, the appeal of the revenue is partly allowed in terms of our aforesaid observations. A.Y 2013-14 ITA 5913/Mum/2017 [Revenue's appeal] 56. We shal....
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....red in allowing deduction u/s 80IB(10) of the IT Act, 1961 to the assessee on those flats which were less than 1000 sq. feet in size, when the provisions of section 80IB(10) of the Act allow deduction only upon completion of the entire project and not on part project or on part fulfilment of the requirements stated in the provisions of the section." 57. Briefly stated, the assessee firm had e-filed its return of income for A.Y 2013-14 on 28.09.2013, declaring its total income at Rs. Nil. Subsequently, the case of the assessee was selected for scrutiny assessment u/s 143(2) of the Act. In the course of the assessment proceedings, it was observed by the A.O that the assessee had in its return of income claimed deduction of Rs. 7,85,16,411/- u/s 80IB(10) of the Act in respect of a housing project "Adityavardhan" that was developed by it at 186-B, Saki Vihar Road, Andheri (East), Mumbai. 58. In the course of the assessment proceedings it was observed by the A.O that the assessee had failed to comply with the requisite conditions envisaged in Sec. 80IB(10) of the Act. It was observed by the A.O that details gathered in the course of the assessment proceedings for the immediately prece....
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....of an act which was impossible of performance, and that the Building Completion Certificate/Occupation Certificate could not be obtained for reasons beyond its control. The CIT(A) further drawing support from the judgment of the Hon'ble High Court of Bombay in the case of CIT Vs. Hindustan Samuh Awas Ltd. (2015) 62 taxmann.com 175 (Bom), therein observed that the facts borne from the records viz. purchasers of the flats had taken possession and were residing in the said flats; approvals were obtained by the assessee from the Fire Brigade authority, Lift Inspector, Asst. Engineer MCGM for drainage works etc., evidenced that the assessee had completed the physical construction of the project. Accordingly, the CIT(A) holding a conviction that the assessee had completed its project viz. "Adityavardhan" within the time allowed u/s 80IB(10)(a)(iii), therein vacated the adverse inferences that were drawn by the A.O. 60. As regards the view of the A.O that the area of certain flats in the project of the assessee exceeded the prescribed limit of 1000 sq. ft, it was observed by the CIT(A) that the assessee had not sold the 'dry balcony area' to the purchasers and the same represented servic....
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....y the CIT(A), had been assailed by the revenue in its appeal in the assessee's own case for the preceding year i.e A.Y 2011-12 in ITA No. 5912/Mum/2017. As in year under consideration, in A.Y 2011-12 also the CIT(A) had found favour with the claim of the assessee that the area of "dry balcony" was not to be included while calculating the "built-up area" of the flats in the assessee's project. As such, on the basis of his said observations, the CIT(A) while disposing off the appeal for A.Y 2011-12, had concluded, that the area of all the residential units was well within the prescribed limit of 1000 sq.ft. As we have after exhaustive deliberations not found favour with the manner as per which the CIT(A) had construed the term "built-up area" which stands defined in Sec. 80IB(14)(a), therefore, with specific directions we have restored the matter to the file of the A.O for fresh adjudication. Accordingly, we are of the considered view that on the same terms the matter in the present appeal also requires to be restored to the file of the A.O, who is directed to adjudicate the issue afresh considering our observations/directions recorded while disposing off the Grounds of appeal Nos. 2....
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.... 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 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. As such, "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 High Court in the case of Shivsagar Veg Restaurant Vs ACIT [(2009) 317 ITR 433 (Bom)] wherein it was inter alia, observed as under: "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 fo....
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....e 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 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 t....