TaxTMI 
TaxTMI 
2024 (6) TMI 336
X X X X Extracts X X X X
X X X X Extracts X X X X
....ase, the order passed by the learned CIT(A) under section 250 of the Act is bad both in the eyes of law and on facts. 2. That the Ld. CIT(A) has erred on facts and in law in sustaining the order of the Ld. AO passed under Section 154 of the Act. 3. That the Ld. CIT(A) has erred on facts and in law in upholding the order passed by the learned AO under Section 154, ignoring the fact that the same has been framed consequent to a search which itself was unlawful and invalid in the eyes of law 5. That the Ld. CIT(A) has erred on facts and in law in sustaining the addition of Rs. 40,00,000/- made by the Ld. AO on account of unexplained money under section 69A of the Act without appreciating the facts of the case and relying solely upon dumb documents. 6. That the Ld. CIT(A) has erred on facts and in law in confirming the addition of Rs. 82,14,524/- made by the Ld. AO on account of unexplained money under section 69C of the Act, relying upon the dumb documents which are inadmissible in law, without appreciating the facts of the case. 7. That the Ld. CIT(A) has erred on facts and in law in appreciating the action of Ld. AO in invoking of provisi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ral Circle-30(1), New Delhi to ACIT, Central Circle, Delhi. A notice u/s 153A of the Act stood issued to the assessee on 23.09.2019. The assessee for AY 2012-13 had already filed his original return of income on 28.09.2012 declaring income of Rs. 17,30,550/- which was duly processed u/s 143(1) on 13.12.2013. No assessment was framed either u/s 143(3) or u/s 147 of the Act for the AY 2012-13 before the date of search. In response to the notice issued u/s 153A of the Act, the assessee filed his return of income on 30.09.2019, declaring total income of Rs. 17,30,550/- which was the same income as was disclosed in the original return of income. 7. The assessee for AY 2016-17 had already filed his original return of income on 25.07.2016 declaring income of Rs. 17,16,430/- which was duly processed u/s 143(1) on 16.09.2016. No assessment was framed either u/s 143(3) or u/s 147 of the Act for the AY 2016-17 before the date of search. In response to the notice issued u/s 153A of the Act, the assessee filed his return of income on 30.09.2019, declaring total income of Rs. 17,16,430/- which was the same income as was disclosed in the original return of income. 8. The assessee for AY 201....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r approval of ld JCIT u/s 153D of the Act becomes void ab initio in view of the fact that the ld JCIT while granting the approval had not even bothered to look into the facts and figures qua the assessee concerned and had merely approved the draft assessment order in a mechanical manner without due application of mind. Further, he drew attention to page 2 of the paper book containing the approval granted by the ld JCIT on 30.12.2019, wherein, it had been categorically mentioned that the draft assessment orders were sent to the ld JCIT on 30.12.2019 and the same were duly approved by the ld JCIT on 30.12.2019 itself. For the sake of convenience, the approval granted by the ld JCIT is reproduced below:- Office of the Addl. Commissioner of Income Tax Central Range-02, Room No. 341, E-2, ARA Centre, 3rd Floor, Jhandewalan Extn, New Delhi - 110055 [email protected] Tel. No. 011-23593414/Fax 011-23593413 F. No. JCIT/CR-2/2019-20/1645 &nbs....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pplication of mind by granting single approval for all the assessment years together. Accordingly, he pleaded that this type of approval cannot be treated as a valid approval contemplated u/s 153D of the Act and consequentially, the entire search assessment framed in the hands of the assessee for various assessment years under consideration requires to be quashed as void ab initio. In support of this argument, the ld AR placed heavy reliance on the decision of the coordinate bench decision of this tribunal in the case of Shiv Kumar Nayyar Vs. ACIT in ITA Nos. 1282 to 1285/Del/2020; ITA No. 1078/Del/2021 and ACIT Vs. Shiv Kumar Nayyar in ITA No. 1867/Del/2021 dated 26.07.2023 wherein, this Tribunal had placed reliance on the decision of the Hon'ble Orissa High Court in case of ACIT Vs. M/s. Serajuddin and Co. in ITA Nos. 39 to 45 of 2022 dated 15.03.2023; decision of Hon'ble Allahabad High Court in the case of PCIT Vs. Subodh Aggarwal in Income Tax Appeal No. 86/2022 dated 12.12.2022 and the decision of the Hon'ble Jurisdictional High Court in the case of ACIT Vs. Anju Bansal in ITA 368/2023 dated 13.07.2023 had quashed the search assessment proceedings as there was no valid approva....
X X X X Extracts X X X X
X X X X Extracts X X X X
....andatory requirement of law. The said approval granting proceedings by the ld. JCIT is a quasi judicial proceeding requiring application of mind by the ld. JCIT judiciously. In order to ensure smooth implementation of the aforesaid provisions, in consonance with the true spirit of the scheme of the Act, it is the bounden duty of the Ld. AO to seek to place the draft assessment order together with copies of the seized documents before the ld. JCIT well in time much before the due date of completion of search assessment. The ld. JCIT is supposed to examine the seized documents, questionnaires raised by the Ld. AO on the assessee seeking explanation of contents in the seized documents, replies filed by the assessee in response to the questionnaires issued by the Ld. AO and the conclusions drawn by the Ld. AO vis- à-vis the said seized documents after considering the reply of the assessee. All these functions, as stated earlier, are to be performed by the ld. JCIT in a judicious way after due application of mind. Even though as vehemently argued by the Ld. CIT-DR, the ld. JCIT is involved with the search assessment proceedings right from the time of receipt of appraisal report f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he last moment, then no fault could be attributed to the assessee. In such circumstances, the only irresistible conclusion that could be drawn is that the ld. AO is not serious about the statutory deadlines provided in the Act. In our considered opinion, if the arguments of the Ld. CIT DR are to be appreciated that the ld. JCIT need not apply his mind while granting approval of the draft assessment orders u/s 153D of the Act as it is not provided in section 153D of the Act, then it would make the entire approval proceedings contemplated u/s 153D of the Act otiose. The law provides only the Ld. AO to frame the assessment, but, certain checks and balances are provided in the Act by conferring powers on the ld. JCIT to grant judicious approval u/s 153D of the Act to the draft assessment orders placed by the Ld. AO. 17. Let us now examine whether in the aforesaid background of the scheme of the Act, whether the approval in terms of section 153D of the Act has been granted by the ld. JCIT in a judicious way after due application of mind or not, in the instant case. 18. We have gone through the approval granted by the ld. JCIT on the date mentioned in the table hereinabove u/s 153D....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Rs. 1,65,07,560/- had he applied his mind. The addition of Rs. 15,04,35,000/- made by the AO in the instant case is completely out of the scene in the final assessed income shows volumes. 17.2 Even the factual situation is much worse than the facts decided by the Tribunal in the case of Sanjay Duggal (supra). In that case, at least the assessment folders were sent whereas in the instant case, as appears from the letter of the Assessing Officer seeking approval, he has sent only the draft assessment order without any assessment records what to say about the search material. As mentioned earlier, there are infirmities in the figures of original return of income as well as total assessed and the Addl. CIT while giving his approval has not applied his mind to the figures mentioned by the AO. Therefore, approval given in the instant case by the Addl. CIT, in our opinion, is not valid in the eyes of law. We, therefore, hold that approval given u/s 153D has been granted in a mechanical manner and without application of mind and thus it is invalid and bad in law and consequently vitiated the assessment order for want of valid approval u/s 153D of the Act. In view of the ....