TaxTMI 
TaxTMI 
2020 (8) TMI 171
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....t. 3. We have heard rival submissions and perused the materials available on record including the detailed paper book filed by the assessee running from pages 1-290. We find that assessee company is engaged in the business of real estate development. The assessee belongs to 'Lotus Group'. There was a search action u/s.132 of the Act conducted on the 'Lotus Group' on 09/10/2014, pursuant to which assessee's case was centralised. The assessee company had originally filed its return of income for the A.Y.2008-09 on 27/09/2008 declaring total losses of Rs. 40,50,269/-. The original assessment was completed u/s.143(3) of the Act on 30/12/2010 determining total income at Rs. 162,42,070/-. Later, this assessment was sought to be reopened by issuing of notice u/s.148 of the Act dated 26/03/2015 by the ld. AO. The reasons recorded by the ld. AO for reopening assessment are as under:- "An intimation vide letter bearing no.DDIT(Inv)-Unit 3(1) and 3(2)/information/2014-15/dated 03.03.2015 has been received in this office from the Director of Income-tax (Inv)-Unit 3(1) & 3(2), Mumbai, wherein the information regarding bogus accommodation entries by Shri Praveen Kumar Jain was receiv....
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....the addition made in the sum of Rs. 13.50 Crores on account of unsecured loans received from 5 corporate borrowers on merits. 3.2. Aggrieved, the revenue is in appeal before us on deletion of addition on merits and assessee has preferred the cross objections before us challenging the validity of the reopening of assessment. 3.3. From the perusal of the reasons recorded by the ld. AO as reproduced supra, we find that there is absolutely no mention about the failure of the assessee to fully and truly disclose the material facts before the ld. AO in the original assessment proceedings. We find that the original assessment was completed u/s.143(3) of the Act on 30/12/2010 wherein the ld. AO had sought to make enquiry of total unsecured loans of Rs. 16,86,64,834/-. We find that the ld. AO had sought confirmation from all those loan creditors vide order sheet entry dated 08/07/2010 by making a specific mention as to why the same should not be taxed u/s.68 of the Act. In para 4 of the said assessment order dated 30/12/2010, the ld. AO had duly recorded the fact that confirmations were filed in 29 cases (29 non-corporate borrowers). The ld. AO had also mentioned that the confirmation....
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....ities mentioned in the reasons recorded totalling to Rs. 13.50 Crores. Hence, we hold that there is absolutely no failure on the part of the assessee to make full and true disclosure of all the material facts with regard to unsecured loans before the ld. AO to the extent of borrowings of Rs. 13.50 Crores. Hence, we hold that proviso to Section 147 of the Act would squarely come into operation. We find that the Hon'ble Jurisdictional High Court in the case of Hindustan Lever Ltd., vs. R B Wadkar reported in 268 ITR 339 (Bom) had held as under:- "12. The petitioner submits that the disclosure of reasons would make it clear that no failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for that assessment year has been alleged as such the notice is hit by the proviso to Section 147 and the same being beyond the period of four years from the end of the assessment year is unsustainable in law much less the same is without jurisdiction. We find that the submission made is well sustainable. It is not in dispute that the proviso to Section 147 of the Act is applicable to the facts of this case and the notice is without jur....
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.... at 7.24%. In view of this fact, it was concluded, to the extent the assessment framed on 31/10/2006 has escaped the assessment by allowing excess claim of loss within the provisions of Sec.147 of the Act." In that case as well the reopening of the assessment was beyond four years. While allowing the Petition, this Court held as follows:- "The original assessment was completed under Section 143(3). The assessment is sought to be reopened beyond a period of four years from the end of the relevant Assessment Year. The jurisdictional condition is that in such case before an assessment can be validly reopened, there must be a failure on the part of the assessee to state fully and truly all the material facts necessary for the assessment. There is no such allegation in the reasons which have been disclosed to the assessee. The Assessing Officer has purported to reopen the assessment only recording that according to him the melting loss of 7.24% which was claimed by the assessee is higher than what is found in a similar line of business. This ex facie would amount merely to a change of opinion. As regards the contention of the counsel appearing for the Revenue that ther....
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....eeding further by way of re-assessment for A.Y. 2004-05. A communication was addressed to the Assessing Officer on 27 December 2011 drawing the attention of the officer to the order passed by this Court. The Assessing Officer passed an order of assessment on 30 December 2011 since the period of limitation was to expire. The assessee has filed an application dated 10 February 2012 before the Assessing Officer. Since the reopening of the assessment under Section 148 is not valid, the consequential assessment order dated 30 December 2011 would have to be quashed and set aside." The present case stands on the same foundation 4. It would appear that the Assessing Officer passed an order of assessment on 30 December 2011 since the assessment was becoming time-barred on 31 December 2011 which was a Saturday. Though the website of the High Court disclosed that the earlier Petition had been disposed of as on 23 December 2011, it appears that the certified copy of the order was not made available until Saturday. Be that as it may, since the basis of the reopening of the assessment under Section 148 beyond a period of four years cannot be sustained, the consequential order o....
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....e 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 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 fr....
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....bai 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 validity....