TaxTMI 
TaxTMI 
2017 (4) TMI 1371
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....allenge the order of the CIT(A) on following grounds: "The Ld. CIT(A) has erred in law and on facts in affirming the jurisdiction of the Assessing Officer under section 153A, ignoring that the Additional Commissioner has granted the approval in a mechanical manner, the CIT(A) has further erred in not appreciating that no proceedings were pending on the date of search and the entire assessment has been framed without any reference to incriminating material found as a result of search." 3. The Ld. counsel further submitted that under Rule 27 of the ITAT Rules, a legal plea, which was not raised by the assessee before the lower authorities, can be raised at any stage by the proceeding before the Tribunal as per proposition laid down by various decision and orders including order of the ITAT 'D' Bench Delhi dated 19.05.2014 in the case of DOT Vs. Jubiliant Enpro Pvt. Ltd. in ITA No. 560/Del/2010 Assessment Year 1998-99. 4. In reply to the above, Ld. DR strongly opposed to admission and above noted ground and submitted that the legal plea which was not raised before the Assessing Officer and CIT(A) cannot raised before the Tribunal at the appellate stage under any provi....
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....(A) qua the deletion of addition on merits. Notwithstanding the fact that the respondent assessee did not file any appeal against the order passed by the CTT(A), shall still be entitled under Rule 27 of the ITAT Rules, 1963, to support the conclusion of the order of the first appellate authority, being the deletion of addition, by challenging the finding of the CTT(A) which was delivered against him on the legal issue of reopening of assessment 14.4. The mandate of Rule 27 is to be seen in contradistinction to the provisions of section 253(4) of the Act, which empower the respondent, on an appeal filed by the plaintiff, to file cross objection against any part of the order. At this stage, it may be fruitful to take note of the prescription of sec. 253(4), which provides that: The Assessing Officer or the assessee, as the case may be, on receipt of notice that an appeal against the order of the Deputy Commissioner (Appeals) or, as the case may be, the Commissioner (Appeals) or the Assessing Officer in pursuance of the directions of the Dispute Resolution Panel has been preferred under sub-section (1) or sub-section (2) or sub-section (2A) by the other party, may, notwithstanding ....
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....ntiff, should be open for challenge by the respondent under the rule. If the respondent is debarred from raising that aspect of the issue, which was not taken up before the first appellate authority or taken up but remained undecided, and the appeal of the plaintiff is allowed, the respondent would be rendered without remedy. It has been noticed above that a respondent is not entitled to file cross objection on such aspects of the issue u/s. 253(4) of the Act, the scope of which provision is circumscribed to challenging the ultimate unfavourable conclusion drawn by the CIT(A). In common parlance, when an issue is decided in favour of one party whether on one aspect or the other, it is not expected of such a party to challenge the order by asserting that the decision should have been given in his favour on that issue on all the aspects and not on that particular aspect on which it was given. When an appeal is filed against such favourable decision on the issue by the other party, and suppose the impugned order is not sustainable on that aspect of the issue on which it was decided, but on some other aspect which was not decided by the first appellate authority and the respondent is r....
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....ssment order were passed u/s. 143(3) of the Act read with 153A of the Act. Ld, counsel vehemently pointed out that the date of approval u/s. 153D of the Act and the date of assessment order are same i.e. 31.03.2014 and while granting approval the ACIT first of all severely criticized this approach of the Assessing Officer and had last made an observation that the approval has been granted in a mechanical manner. The Ld. counsel placing reliance on the various decisions including decision of the Hon'ble Bombay High Court in the case of CIT Vs. Akil Gulamani Somji reported in 80CCH 0053 (Bom,) (HC) and order of the ITAT Mumbai Bench in the case of Smt. Shree Lekha Damani Vs. DOT reported in 125 DTR 0263 (Mum. Trib.) submitted that the provision of Section 153D are mandatory and non compliance or disobedience to the same renders consequent assessment order void ab initio. 10. In reply to the above, the Ld. CIT, DR strongly supported the action of the Assessing Officer and submitted that admittedly and undisputedly there is an approval u/s. 153D of the Act prior to framing of assessment order u/s. 143(3) r.w.s. 153A of the Act. He strenuously contended that there is no mandate o....
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..../s. 153D of the Income Tax Act, 1961. In this regard, it is noticed that prior to submission of these draft assessment orders received, no discussion has been made at any stage of proceedings With the undersigned including at the stage of preparation finalization of Questionnaires U/s. 142(1) of the Income Tax Act, 1961. Accordingly, keeping in view the limitation aspect in the matter which is going to be expired today itself, approval is accorded in the following 54 cases of RAMA Paper Mills Ltd. Group of cases, solely relying on your undertaking to the effect that while completing the assessment as per draft assessment order, all the observations made in the appraisal report relating to examination/investigation as also the issues identified in the course of examination of seized material were carefully considered/kept in view. The mechanical approval had to he accorded as there is hardly any time left for any discussion/consideration much less meaningful discussion including the fact that absolutely no time is available for any further enquiries/investigation because of the fact that limitation for passing and service of order in these 54 cases is expiring today itself. A ....
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.... Thus, we are inclined to hold that there has been no application of mind by the ACIT before granting the approval. Consequently, we hold that the assessment orders made u/s. 143(3) of the Act r.w.s. 153A of the Act in the case of M/s. Siddhbhumi Alloys Ltd. for Assessment Year 2006-07 is bad in law and deserve to be annulled, thus, we ordered accordingly. Finally additional ground of appeal raised by the assessee by way of Rule 27 of the ITAT Rules in ITA No. 321/Lkw/2016 for the Assessment Year 2006-07 is allowed. 15. Since, at the very beginning of the hearing, the Ld. counsel of the assessee as well as Ld. CIT DR placed their concurrence to the fact that the additional ground raised by the assessee in all three appeals of the Revenue and grounds of the assessee in other two appeals i.e. 167 & 168/Lkw/2016 for Assessment Years 2011-12 & 2006-07 respectively, are identical and the same are raising the similar legal issue as facts and circumstances of all five cases are quite similar and identical. Therefore, we hold that our conclusion drawn in ITA No. 321/Lkw/2016 (Supra) would apply mutatis mutandis to other four appeals and consequently assessment orders passed therein u/s.....