Rule 34 of the Income-tax Appellate Tribunal Rules – The period of 90 days prescribed in Rule 34(5) needs to be computed by excluding the period during which lockdown was in force

15. [2020] 116 taxmann.com 565 (Mum.)(Trib.) DCIT vs. JSW Ltd. ITA Nos. 6103 & 6264/Mum/2018 A.Y.: 2013-14 Date of order: 14^th May, 2020

Rule 34 of the Income-tax Appellate
Tribunal Rules – The period of 90 days prescribed in Rule 34(5) needs to be
computed by excluding the period during which lockdown was in force

FACTS

In this case, the hearing of the appeal was concluded on 7^th
January, 2020 whereas the order was pronounced on 14^th May, 2020,
i.e. much after the expiry of 90 days from the date of conclusion of hearing.
The Tribunal, in the order, suo motu dealt with the procedural issue of
the order having been pronounced after the expiry of 90 days of the date of
conclusion of the hearing. The Tribunal noted the provisions of Rule 34(5) and
dealt with the same.

HELD

The Tribunal noted
that Rule 34(5) was inserted as a result of the directions of the Bombay High
Court in the case of Shivsagar Veg Restaurant vs. ACIT [(2009) 317 ITR
433 (Bom.)]. In the rule so framed as a result of these directions, the
expression ‘ordinarily’ has been inserted in the requirement to pronounce the
order within a period of 90 days. It observed that the question then arises
whether the passing of this order beyond 90 days was necessitated by any
‘extraordinary’ circumstances.

It also took note of the prevailing unprecedented situation and the
order dated 6^th May, 2020 read with the order dated 23^rd
March, 2020 passed by the Apex Court, extending 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^th
March, 2020 then the period from 15^th March, 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’.

The Tribunal also
noted that the Hon’ble Bombay High Court, in an order dated 15^th
April, 2020 has, besides extending the validity of all interim orders, 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 26^th March, 2020 continues to operate shall be added and
time shall stand extended accordingly’, and also observed that the
‘arrangement continued by an order dated 26^th March, 2020 till 30^th
April, 2020 shall continue further till 15^th June, 2020’.

The extraordinary
steps taken suo motu by the Hon’ble jurisdictional High Court and the
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.

The Tribunal held
that even without the words ‘ordinarily’, in the light of the above analysis of
the legal position, the period during which lockout was in force is to be
excluded for the purpose of time limits set out in Rule 34(5) of the Appellate
Tribunal Rules, 1963.

The order was
pronounced under Rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1962,
by placing the details on the notice board.