TaxTMI 
TaxTMI 
2025 (6) TMI 1296
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....IT Himanshu Verma 3-4 2013-14 1237/Del/2022 Himanshu Verma ACIT CIT(A)-30, New Delhi Appeal No. 10409/2019-20 Dated 31.03.2022 153A 1352/Del/2022 ACIT Himanshu Verma 5-6 2014-15 1238/Del/2022 Himanshu Verma ACIT CIT(A)-30, New Delhi Appeal No. 10411/2019-20 Dated 31.03.2022 153A 1353/Del/2022 ACIT Himanshu Verma 7-8 2015-16 1239/Del/2022 Himanshu Verma ACIT CIT(A)-30, New Delhi Appeal No. 10420/2019-20 Dated 31.03.2022 153A 1354/Del/2022 ACIT Himanshu Verma 9-10 2016-17 1240/Del/2022 Himanshu Verma ACIT CIT(A)-30, New Delhi Appeal No. 10425/2019-20 Dated 31.03.2022 153A 1355/Del/2022 ACIT Himanshu Verma 11-12 2017-18 1241/Del/2022 Himanshu Verma ACIT CIT(A)-30, New Delhi Appeal No. 10432/2019-20 Dated 28.03.2022 153A 1356/Del/2022 DCIT Himanshu Verma 13-14 2018-19 1596/Del/2022 Himanshu Verma ACIT CIT(A)-30, New Delhi Appeal No. 10436/2019-20 Dated 09.06.2022 143(3) 1956/Del/2022 DCIT Himanshu Verma 2. Heard both the parties at length. Case files perused. 3. It emerges at the outset that there ar....
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....nal Thermal Power Co. Ltd. vs. CIT (1998) 229 ITR 383 (SC); as considered in Allcargo Global Logistics Ltd. vs. DCIT (2012) 137 ITD 287 (SB) (Mum), that such an additional ground could very well be allowed to be raised in section 254(1) proceedings, in order to determine the correct tax liability of an assessee provided all the relevant facts form part of the records. 4. It is in this factual backdrop that we admit the assessee's instant legal ground and note with the able assistance coming from both the parties that the learned Assessing Officer had sought the prescribed authority's approval on 27.02.2017 which stood granted on 02.03.2017. The clinching fact which from page 10 in the assessee's paper book is that the learned Assessing Officer herein had infact sought a common approval for all these assessment years from 2008-09 to 2013-14 which stood granted, and therefore, we quote PCIT Vs. Shiv Kumar Nayyar (2024) 163 taxmann.com 9 (Del.), PCIT Vs. MDLR Hotels (P) Ltd. (2024) 166 taxmann.com 327 (Del.) and ACIT vs. Serajuddin and Co. (2024) 163 taxmann.com 118 (SC), to conclude that such a combined section 153D approval indeed vitiates the entire assessment ....
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.... are a catena of judgments of this Court on the said issue, the law laid down by this Court in the case of Tata Cellular Vs. Union of India. reported in (1994) 6 SCC 651 lays down the basic principles which still hold the field. Paragraph 77 of the said judgment reads thus: "77. The duty of the court is to confine itself to the question of legality. Its concern should be: - 1. Whether a decision-making authority exceeded its powers? 2. Committed an error of law, 3. committed a breach of the rules of natural justice, 4. reached a decision which no reasonable tribunal would have reached or, 5. abused its powers. Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfillment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under: - (i) Illegality: This means the decision-maker must understand correctly the law that ....
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....nably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari. 32. The sweep of power under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse. Municipal Council Neemuch vs Mahadeo Real Estate on 17 September, 2019 Indian Kanoon - http://indiankanoon.org/doc/83894917/6. 33. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what th....
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....e public interest. We are of the considered view that the decision of the Commissioner which is set aside by the High Court is undoubtedly in larger public Interest, which would ensure that the Municipal Council earns a higher revenue by enlarging the scope of the competition. By no stretch of imagination, the decision of the State Government or the Commissioner could be termed as illegal, improper, unreasonable or irrational, which parameters only could have permitted the High Court to interfere. Interference by the High Court when none of such parameters exist, in our view, was totally improper. On the contrary, we find that it is the High Court, which has failed to take into consideration relevant material. 26. In the result, the impugned Orders are not sustainable in law. The appeals are, accordingly, allowed and the Impugned orders dated 31.08.2017 and 05.07.2018 are quashed and set aside. The petition of respondent No. 1 stands dismissed. (ii) Decision of Hon'ble Supreme Court in the case of West Bengal Central School Service ... vs Abdul Halim dated 24 July, 2019, AIR 2019 SC 4504, AIRONLINE 2019 SC 2188 AIR 2020 SC (CIV) 82. ".....................
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....nd in the circumstances of the case and in law the arrival in the On the Facts and in the circumstances of the case and in law the approval granted under section 153D of The Act is no arrival in the eyes of law as the same has been accorded on presumption and without application of mind and consequently the assessment order u/s 153C of the Act is null and Void as approval granted under section 153D is mechanical in nature and without application of Mind. 4.2 Identical grounds and additional grounds have been raised in the remaining two appeals except change of amount grounds and additional grounds have been raised in except change of amount. 4.3 We have heard rival submission of the parties on the issue of admissibility of the additional e have heard rival submission of the parties on the issue of grounds raised are e have heard rival submission of the parties on the issue of additional grounds. As the grounds raised legal in nature and not requiring investigation of fresh facts, same are admitted for adjudication in view of the settled principle in the legal in nature and not requiring investigation of fresh facts, same are admitted for adjudication in view of th....
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....echanical and hurried manner without mentioning the reasons and without application of mind. The approving authority anything in the approval memo toward the process of deriving satisfaction so as to exhibit his application of mind. The approving authority has not objectively evaluated the draft assessment order with due application of the mind on the issue contained in such order so as to derive its conclusive satisfaction that the proposed action of the Assessing Officer is in conformity with the subsisting law. 6.2 In support of above contentions the learned counsel relied on various decisions of the coordinate benches of the Tribunal and Hon'ble High Court's as follows: (i) Decision dated 06/06/2024 of Delhi bench of the Tribunal in the case of Shri Guvinder Singh Duggal in ITA No. 860 to 863/Del/2021 for AY 2012-13 to 2018-19. (ii) Decision dated 29/04/2024 of Delhi Bench of Tribunal in the case of MDLR Airline (P) Ltd in ITA No. 1420 & 1421/Del/2023 for AY 2007-08 and 2008-09. (iii) Decision of Hon'ble Allahabad High Court in the case of PClT vs Sapna Gupta in ITA No. 88 of 2022. (iv) Decision of Hon'ble Delhi High ....
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.... stated in the case of Usha S. Salvi for A. Y. 2012-13 (ITA 4239M2023), A. Y.2013-14 (ITA 42372023), A. Y. 2014-15 (ITA 42382023) as under: It has been more than almost 7 years since these orders were passed after due discussion and guidance from time to time with the approval of Range Head as per the Law. Generally, the appraisal reports of such search/ survey cases are forwarded to the central charge hierarchy including the AD and Range head and in such type of cases, as per Law, approval for passing the assessment orders are to be given by the range head and so Range head has to apply his/her mind and has to give sufficient time. Since in such type of cases, regular discussion between the range head and AO happened regularly whenever needed. Appraisal report or other communication with the investigation wing of the department and seized/impounded materials explored and discussed from time to time and thereafter assessment order finalised after approval from the range head. In this case also, such type of discussion happened regularly based on the appraisal reports and seized/impounded materials as per the Law. Since the offices of the range head and the assessi....
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....t a one-day affair, it is done after a series of discussions with the Assessing Officer. The Assessing Officer and the Addl. CTT both examine the records on regular basis. Therefore, the approval to the assessment order is given after a number of meetings are held and the whole case is understood. I have seen the records before giving approval of the case. The record is with the Assessing Officer. He comes with the records for discussion and after understanding the content of the record, approval is given. It is not a case where approval is given in just one day. (2) The approval was given on the same day as the letter for approval was received, does not mean that the case has been seen only on that day. The Addl.CIT and the Assessing officer both are involved in the case since the issue of the notices and before sending the questionnaire to the assessee, the record is examined by the Assessing Officer and the Addl. CIT both on a regular basis. It may not be brought on the record because generally, the practice of the department is that we don't write order sheet of the meeting with the Assessing Officer. The reason for the same is that the Assessing Officer and the Ad....
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....tted that the Ld JCIT had duly applied her mind. It was only after applying her mind that she had suggested some changes and gave approval. As informed by the AD, the draft order is not available in records but it is humbly submitted that if a senior officer has confirmed that she had suggested some changes then the same would have been done by AD. Affidavits have also been filed by both officers i.e. the AO, as well as the Range head, wherein they have confirmed that due process was followed, various meetings were held on regular basis and only after the Range head was satisfied the approval was granted. This shows that the JCIT had applied her mind before granting approval u/s 153D. 3. In this regard it is pertinent to mention that in the present case the seized material consists of only 3 Annexures. Thus this is not a case where huge seized material is there requiring extensive discussions. 4. Regarding assessee's claim that JCIT should have applied her mind injudicious manner and then drawn conclusions it is submitted that the JCIT in her affidavit has clearly admitted that due application was done. The dictionary meaning o of judicious says 'showing g....
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....D of the I T Act, 1961 subject to the corrections made therein. After passing the order, a copy of the same may be submitted to this office." 8.1 The learned counsel for the assessee has mainly contended that except draft assessment orders, no material was available with the approving authority. He has further alleged that approval was granted on the same date of seeking such approval in a combined manner for all the assessment year involved. The approving authority has merely directed for certain modification in the final order but not specified said modification in the approval order. But we find that except such allegation in support of the additional ground, no documentary evidence to support the allegations of non application of mind by the approving authority have been filed by the assessee. Whereas, on the other hand, the learned departmental representative has filed affidavits from the then Assessing Officer and the approving authority, wherein they have denied the allegations raised by the assessee but no counter affidavit has been filed by the assessee to controvert the deposition made by the Assessing Officer and the additional Commissioner of income-tax in thei....
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.... "16. We have heard both the parties, perused the materials available on record and gone through the orders of authorities below. There is no doubt with regard to the fact that as per provisions of section 153D, the AO needs to take prior approval from the Addl. Commissioner of the range in charge before passing any assessment order u/s 143(3) r.w.s. 153A of the Income-tax Act, 1961. It is also not in dispute that the AO, in his assessment order at para 7 had categorically stated that the mandatory requirement of approval u/s 153D of the Income-tax Act, 1961 has been taken from the Addl. CIT, Central Range- 4, Mumbai vide letter No. Addl. CIT/CR-4/Approvl- 153D/2012-13 dated 25-03-2013. It is also not in dispute that the assessee has not raised any objection, whatsoever, with regard to the issue of approval u/s 153D either before the AO or before the first appellate authority. The assessee has taken the legal ground for the first time before the Tribunal by filing additional ground of appeal. Therefore, the whole issue needs to be apprised in the light of above facts and also the conduct of the assessee. Admittedly, the department, in reply to RTI application clarified that neither....
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.... letter No. Addl. CIT/CR-4/Approval- 153D/2012-13 dated 25-03-2013. Although, affidavit is not primary evidence which cannot be accepted in absence of circumstantial evidences, but in this case, the circumstantial evidence available in the assessment record supports the contents of affidavits filed by both officers. Therefore, the affidavits filed by the officers cannot be ignored, as not having any evidentiary value. The contents of affidavits filed by the officers coupled with circumstantial evidences available in the assessment folders clearly establish the fact of obtaining necessary approval u/s 153D of the I. T. Act. Though, copy of approval letter is not available in the assessment record, but the contents of approval letter issued by the competent authority has been reproduced in verbatim in the assessment order at para 7. Further, the approval granted in other group cases is very much available in the assessment folder. Therefore, it cannot be said that no approval had been taken. Further, the approval u/s 153D is an administrative procedure which requires to be complied with by the officers, who is discharging the assessment functions. The administration action of the dep....
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....stand granted after considering all the relevant legal proposition and facts on record. 6. We see no merit in the learned CIT-DR foregoing arguments. This is for the precise reason that there is no such procedure of getting the field authorities affidavit in support of their respective orders under the provisions of the Act that stated in the case records. Case law Hindustan Lever Ltd. Vs. R.B. Wadkar (2004) 268 ITR 332 (Bom.) has already settled the issue; in section 148/147 jurisprudence, that even reasons recorded by the assessing authority could not be allowed to be improved of any latter stage which have to be read as standalone basis. The very legal proposition is applicable in administrative law as well as in hon'ble apex court's landmark decision in Mohinder Singh Gill & Anr. Vs. CEC (1978) 1 SCC 405 (SC) wherein their held as under: "The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to co....