TaxTMI 
TaxTMI 
TaxTMI 
2023 (6) TMI 1333
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....quirements and conditions under section 153D, as in with his under the income, tax act, 1961" 2. The learned counsel for the Appellant requested for admission of the additional legal ground under pretext that the legal ground does not require new facts to be investigated, and since it goes to the root of the matter, to decide the appeal, it was prayed that the additional ground may be admitted in the light of the judgement of Honorable Supreme Court in the case of NTPC limited 229, ITR 383. 3. Admittedly, the appellants have raised a common legal issue for the 1st time in both the appeals regarding mandatory approval under section 153D of the income tax act. Since, it goes to the root of the matter and therefore, we admit the additional legal ground for adjudication on merits in view of the ratio laid down by the Honorable Supreme Court in the case of NTPC limited (supra) and accordingly, both the appeals were heard together and adjudicated simultaneously for the sake of brevity. 4. At the time of hearing, the Ld. AR, first presented its arguments in respect of the appeal I.T.A. No. 87/Asr/2017 as a lead case. He submitted that during the assessment proceedings, an addition of ....
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....tent authority perse se to grant the approval u/s 153D of the Act on same date i.e. 20.03.2015 to complete the entire exercise of sending and receipt, of draft proposal, dispatch and deliver in the office of Competent authority and vice versa who had to go through the records and assessment orders of 5 cases in one day. Meaning thereby, that in the instant case, the approval granted was a mechanical exercise of power. 7. In the case of "Principal Commissioner of Income-tax v. Siddarth Gupt"', [2023] 147 taxmann.com 305 Hon'ble Allahabad High Court observed as under: ''18. The careful and conjoint reading of section 153A(1) and section 153D leave no room for doubt that approval with respect to "each assessment year" is to be obtained by the Assessing Officer on the draft assessment order before passing the assessment orders under section 153A. 19. In the instant case, the draft assessment orders in 123 cases, i.e. for 123 assessment years placed before the Approving Authority on 30-12-2017 and 31-12-2017 were approved on 31-12-2017, which not only included the cases of respondent-assessee but the cases of other groups as well. It is humanly impossible to go through the records....
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.... search under section 132. Section 153A(1)(a) requires that the assessee on a notice issued to him by the Assessing Officer would be required to furnish the return of income in respect of "each assessment year" falling within six assessment years (and for the relevant assessment year or years), referred to in clause (b) of sub-section (1) of section 153A. The proviso to section 153A further provides for assessment of the total income in respect of each assessment year falling within such six assessment years (and for the relevant assessment year or years). 20. In the instant case, the draft assessment order in 38 cases, i.e. for 38 assessment years placed before the Approving Authority on 31-12-2017 was approved on same day i.e. 31-12-2017, which not only included the cases of respondent-assessee but the cases of other groups as well. It is humanly impossible to go through the records of 38 cases in one day to apply independent mind to appraise the material before the Approving Authority. The conclusion drawn by the Tribunal that it was a mechanical exercise of power, therefore, cannot be said to be perverse or contrary to the material on record. 9. Again, the Hon'ble High Cou....
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....irements that are mandated therein, (i) the AO should submit the draft assessment order "well in time". Here it was submitted just two days prior to the deadline thereby putting the approving authority under great pressure and not giving him sufficient time to apply his mind; (ii) the final approval must be in writing; (iii) The fact that approval has been obtained, should be mentioned in the body of the assessment order. 23. In the present case, it is an admitted position that the assessment orders are totally silent about the AO having written to the Additional CIT seeking his approval or of the Additional CIT having granted such approval. Interestingly, the assessment orders were passed on 30th December 2010 without mentioning the above fact. These two orders were therefore not in compliance with the requirement spelt out in para 9 of the Manual of Official Procedure. 25. For all of the aforementioned reasons, the Court finds that the ITAT has correctly set out the legal position while holding that the requirement of prior approval of the superior officer before an order of assessment or reassessment is passed pursuant to a search operation is a mandatory requirement of se....