TaxTMI 
TaxTMI 
2021 (1) TMI 457
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....at, on the facts and in circumstances of the case, the Ld. CIT(A) has misdirected himself in law, in sustaining the order of AO by confirming the impugned addition of Rs. 18,00,000/-, simply on assumption that in course of present proceedings as an additional evidence, copy of cancellation of agreement was not filed. 3. In these regards, all the findings of Ld. CIT(A) are without any basis, against facts & circumstances of the case, and material on record. Further, Ld. CIT(A) has misconceived himself in framing his finding that evidence for cancellation of an agreement, relied by appellant, was not filed, whereas the same was well & apparent before him. 4. That, on the facts and in the circumstances of the case, even charge of interest u/s. 234A, 234B & 234C was not sustainable. 5. That the orders and findings of authorities below, to the extent disputed, are against law and facts of the case, the same may kindly be held to be invalid & additions confirmed may kindly be deleted or any other relief as Honorable court deem fit. 6. That the appellant assessee craves the right to amend, add or alter any ground of appeal before the appeal is finally d....
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....celled on 28.03.2007, and the earnest money of Rs. 25 lacs given by the assessee to Smt. Kamlesh W/o. Sh. Brij Mohan was refunded by her to the assessee [copy of the 'agreement', dated 09.01.2005 was filed by the assessee with the CIT(A)]. In order to dispel any doubt as regards the authenticity of his aforesaid claim the assessee had even explained the source of the amount Rs. 25 lacs that was given by him as earnest money to Smt. Kamlesh W/o. Sh. Brij Mohan. It was the claim of the assessee that the aforesaid amount of Rs. 25 lacs was out of the sale consideration that was received by him on the sale of a property situated at Basti Danishmandan, Jalandhar vide an agreement dated 05.01.2005 [copy of the 'agreement to sell', dated 05.01.2005 was filed with the CIT(A)]. It was stated by the assessee, that though the 'sale deed' for the aforesaid property at Basti Danishmandan was executed on 11.12.2013, however, the full and final sale consideration was received by him at the time of executing the aforesaid 'agreement to sell', dated 05.01.2005. In order to fortify his aforesaid claim, the assessee had drawn support of the 'sale deed', dated 1....
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....ards the source of the cash deposits of Rs. 18 lacs in the bank account was concerned, it was submitted by the assessee that the A.O. had not raised any objection or given any adverse comments as regards the same. 7. The CIT(A) after deliberating on the facts of the case in the backdrop of the 'remand report' of the A.O., and also the rejoinder filed by the assessee, therein held a conviction that as the assessee had failed to furnish the requisite information in the course of the assessment proceeding, therefore, the A.O. was justified in passing an ex-parte assessment order under Sec. 144 of the Act. As regards the claim of the assessee that sufficient opportunity was not provided to him for substantiating the source of the cash deposits in his bank account, the CIT(A) observed that the said aspect was taken care of in the course of the appellate proceedings before him as the 'additional evidence' filed by the assessee was forwarded to the A.O. for necessary examination. At the same time, it was observed by the CIT(A), that after having perused the evidence furnished by the assessee in the course of the appellate proceedings before him, the source of the cash d....
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....h the copy of the 'agreement', dated 09.01.2005 that was executed by the assessee with Smt. Kamlesh W/o. Sh. Brij Mohan, wherein the backside of the same clearly revealed a cancellation of the said agreement and refund of the earnest money of Rs. 25 lacs to the assessee on 28.03.2007 [Page 24 (backside)] of the assesses 'Paper book' (for short 'APB'). Also, the Ld. A.R. drew our attention to the certified translated copy of the aforesaid 'agreement', dated 09.01.2005 [Page 25-26 of APB]. On the basis of the aforesaid facts, it was submitted by the Ld. A.R. that the CIT(A) had erred in loosing sight of the aforesaid material aspect, and therein on the basis of incorrect facts had wrongly upheld the view taken by the A.O. As such, it was submitted by the Ld. A.R. that as the source of the cash deposits of Rs. 18 lacs in the bank account of the assessee with the Standard Chartered Bank, Jalandhar stands duly explained, and the same had not been rebutted by the A.O. in his 'remand report', dated 02/07.12.2016 filed with the CIT(A), therefore, the impugned addition could not be sustained and was liable to be vacated. 9. Per contra, the Learned ....
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.... Kamlesh W/o. Sh. Brij Mohan i.e. at the time of execution of the 'agreement', dated 09.01.2005. On a perusal of the aforesaid 'agreement' dated 09.01.2005, we find that the assessee had agreed to purchase the property viz. 172, Vijay Nagar, Jalandhar from Smt. Kamlesh W/o. Sh. Brij Mohan for a total consideration of Rs. 42 lacs. Out of the total purchase consideration an amount of Rs. 25 lacs was given by the assessee as earnest money at the time of execution of the 'agreement', dated 09.01.2005, while for the balance amount was to be paid by him latest by 31.12.2007. As observed by us hereinabove, it is the claim of the assessee that due to certain dispute as regards the aforesaid property under consideration the 'agreement' dated, 09.01.2005 that was executed by the assessee with Smt. Kamlesh W/o. Sh. Brij Mohan could not materialize and was cancelled on 28.03.2007, and the amount of earnest money of Rs. 25 lacs was received back by him from Smt. Kamlesh W/o. Sh. Brij Mohan. Insofar the aforesaid claim of the assessee as regards cancellation of the 'agreement', dated 09.01.2005 on 28.03.2007, and refund of the earnest money of Rs. 25 lacs ....
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.... assessee. In the backdrop of our aforesaid observations, we are unable to persuade ourselves to subscribe to the view taken by the CIT(A) that the assessee had failed to substantiate the availability of funds with him pursuant to the cancellation of the aforesaid 'agreement', dated 09.01.2005. In the totality of the facts before us, we find substantial force in the claim of the Ld. A.R. that as the assessee had sufficient amount of Rs. 25 lacs available with him on 28.03.2007 for making of cash deposits of Rs. 9 lacs each in his bank account with Standard Chartered Bank, Jalandhar on 04.04.2007 and 05.04.2007, therefore, the same could not have been added as an unexplained investment in his hands. On the basis of our aforesaid deliberations, we not finding ourselves to be in agreement with the view taken by the lower authorities 'set aside' the order of the CIT(A) and vacate the addition of Rs. 18 lacs made by the A.O. 11. Before parting, we may herein deal with a procedural issue that though the hearing of the captioned appeal was concluded on 07/02/2020, however, this order is being pronounced much after the expiry of 90 days from the date of conclusion of hea....
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....er or not the passing of this order, beyond a period of ninety days in the case before us was necessitated by any "extraordinary" circumstances. 12. We find that the aforesaid issue after exhaustive deliberations had been answered by a coordinate bench of the Tribunal viz. ITAT, Mumbai F Bench in DCIT, Central Circle 3(2), Mumbai Vs. JSW Limited & Ors. [ITA No. 6264/Mum/18; dated 14/05/2020, wherein it was observed as under: "Let us in this light revert to the prevailing situation in the country. On 24th March, 2020, Hon'ble Prime Minister of India took the bold step of imposing a nationwide lockdown, for 21 days, to prevent the spread of Covid 19 epidemic, and this lockdown was extended from time to time. The epidemic situation 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, ....
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....nacted on the basis of pragmatism, and that is how the law is required to interpreted. The interpretation so assigned by us is not only in consonance with the letter and spirit of rule 34(5) but is also a pragmatic approach at a time when a disaster, notified under the Disaster Management Act 2005, is causing 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 suo motu by the Hon'ble 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 withou....