TaxTMI 
TaxTMI 
2024 (4) TMI 1025
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....ary basis, without having any material to precisely pinpoint expenses purported to have been incurred. 3. The Id CIT(A) erred in facts and circumstances of the case and in law in only granting partial relief against additions that the AO made under section 68, and in violation pre-requisites for making addition u/s 68. 4. The Id CIT(A) had erred in facts and circumstances of the case and in law in upholding additions that the AO made as bogus business expenses under section 69C without appreciating that appellant had opted for presumptive taxation u/s 44AD." 2.2 ITA No. 295/Del/2022, (A.Y. 2017-18) "1. The Id CIT(A) erred in facts and circumstances of the Apple case and in law in upholding additions that the AO made u/s 69C of expenses made on foreign travel on an ad-hoc and arbitrary basis, without having any material to precisely pinpoint expenses purported to have been incurred 2. The id CIT(A) erred in facts and circumstances of the case and in law in upholding additions that the AO made under section 68 on protective basis, prior to his making assessment on a substantial basis in case of any assessee and in violation pre-requisites for making addition u/s 68 3. The ....
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....ssee. Aggrieved by the order of the Ld. CIT(A) dated 16/11/2021, the assessee preferred the present Appeal on the grounds mentioned above. 5. The assessee has raised an additional grounds of Appeal contending that the assessment orders passed by the A.O. and the order of the CIT(A) are void-ab-initio as the assessment orders have been passed consequential to the invalid /illegal approval made u/s 153D of the Act by additional CIT. Since the additional ground being legal and jurisdictional issue, we have heard on the said ground. 6. The Ld. Counsel for the assessee submitted that the assessment order passed u/s 153A/143(3) of the Act is void-ab - initio as the said assessment order has been passed based on combined/consolidated approval issued u/s 153D of the Act by the Additional CIT/Central Range-7 Delhi dated 21/12/2018 without any reference on the order sheet and the same is mechanical one, therefore submitted that the impugned assessment orders and the orders of the Commissioner are liable to be quashed. To support the said submission the Ld. Assessee's Representative relied on the order of the Co-ordinate Bench in the case of Shiv Kumar Nayyar Vs. ACIT in ITA No. 1282 to....
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....l assessment orders should be forwarded to this office immediately after passing the orders. Proposal -tor retention of seized- material, should also be forwarded to this, office within time as per IT Act, 1961. Before passing the final order, in case, there is requirement of protecting the- interest of revenue, permission u/s 281B from Pr. CIT(.C)3, New Delhi should be taken: Office notice indicating additions in relevant assessment years should be indicated In all Assessment Year, A.O to certify about perusal and verification of data seized in electronic format through working copies having certified hash values as that of original hard drives/CDs/ pen drives/mobile data & any other electronic data, You have also certified to the undersigned that all Information available In AIR/CIB/from other Law Enforcement Agencies have been properly scrutinized by you before finalizing the draft assessment. (Vivek Gupta) Additional Commissioner of Income Tax Central Range -7. New Delhi 9. On plain reading of the above appeal, it is found following:- (i) A common and consolidated approval has been granted for AY 2011-12 to 2017-18 and there is no year wise reasoning in the said appr....
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....ct is reproduced as under:- Prior approval necessary for assessment in cases of search or requisition. 153D. No order of assessment or reassessment shall be passed by an Assessing Officer below the rank of Joint Commissioner in respect of each assessment year referred to in clause (b) of [subsection (1) of] section 153A or the assessment year referred to in clause (b) of sub-section (1) of section 153B, except with the prior approval of the Joint Commissioner:] 48[Provided that nothing contained in this section shall apply where the assessment or reassessment order, as the case may be, is required to be passed by the Assessing Officer with the prior approval of the "[Principal Commissioner or] Commissioner under sub-section (12) of section 144BA.] Rectification of mistake." 12. It is elementary that whenever any statutory obligation is cast upon any statutory authority, such authority is required to discharge its obligation not mechanically, not even formally but after due application of mind. Thus, the obligation of granting Approval acts as an inbuilt protection to the taxpayer against arbitrary or unjust exercise of discretion by the AO. The approval granted under sec....
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....ment set aside the order of the Assessing Officer passed under Section 153A of the Income Tax Act, 1961 ("the Act" for short) for Assessment Year 2007- 08. This was on the ground that the mandatory statutory requirement of obtaining an approval of the concerned authority as flowing from Section 153D of the Act, before passing the order of assessment, was not complied with. 4. This was not a case where no approval was granted at all. However, the Tribunal was of the opinion that the approval granted by the Additional Commissioner of Income Tax was without application of mind and, therefore, not a valid approval in the eye of law. The Tribunal reproduced the observations made by the Additional CIT while granting approval and came to the conclusion that the same suffered from lack of application of mind. The Tribunal referred to various judgments of the Supreme Court and the High Courts in support of its conclusion that the approval whenever required under the law, must be preceded by application of mind and consideration of relevant factors before the same can be granted. The approval should not be an empty ritual and must be based on consideration of relevant material on record. ....