AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 838
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..../2012 (A) 73/11-12, dt. 30.04.2012 ACIT, CC-3, Delhi, dated 11.08.2011 3663/Del/2012 (D) - Do - - Do - 2821/Del/2012 (A) 72/11-12, dt. 30.04.2012 - Do - 3657/Del/2012 (D) - Do - - Do - 3082/De/2012 (A) 71/11-12 dt. 30.04.2012 - Do - 3658/Del/2012 (D) - Do - - Do - 2. At the time of hearing, the ld. Counsel for the assessee has stressed on disposal of record additional grounds which are common to all the appeals in hand and for convenience, the additional grounds in ITA No.2820/Del/2012 in the case of the assessee are reproduced below:- "1. That having regard to the facts and circumstances of the case, the impugned assessment order passed by Ld. AO u/s 153A/143(3) is bad in law as the approval obtained u/s 153D is mechanical, without application of mind and is no approval in the eyes of law. 2. That having regard to the facts and circumstances of the case, the approval u/s 153D is mechanical and bad in law inter-alia also for the reason that the same has been given consolidatedly for various assessment years which is contrary to the settled position of law as held in the judgements of Pr. CIT vs. Shiv Kuma....
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....n Assessing Officer below the rank of Joint Commissioner except with the previous approval of the Joint Commissioner. Such provision has been made applicable to orders of assessment or reassessment passed under clause (b) of section 153 A in respect of each assessment year falling within six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted under section 132 or requisition is made under section 132A. The provision has also been made applicable to orders of assessment passed under clause (b) of section 153B in respect of the assessment year relevant to the previous year in which search is conducted under section 132 or requisitioned is made under section 132A. Section 153D of the Act is for administrative purposes and does not require that an opportunity of hearing is required to be given to the assessee. The Hon'ble Supreme Court in S. Narayanappa vs. CIT 63 ITR 219 (SC) as to whether such approval is merely an administrative act or whether such approval can be brought under judicial scrutiny. The apex court held that the stage of obtaining approval from higher authority was administrative in character and....
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.... time till the finalization of the assessment. The approval of the approving authority underlines that he has examined the assessment records, relevant copies of seized documents and the relevant issues arising from the material on record judiciously in independent manner by way of due application of mind. It would not be out of place to mention here that the appellant has not come out with any case that there is case of non- application of mind. The appellant has to positively prove that there is a case of non-application of mind in light of the submission that the approval u/s 153D is an administrative approval. Here, it would not be out of place to highlight that the relevant seized documents in a case are always part of the assessment records as per practice, and requirement of the work. They are not kept separately as relevant seized material is frequently referred to by the assessing officer during the course of assessment proceedings and also made part of assessment order most of the time. In fact, as per the law, seized material is considered as part of records before Assessing Officer and all such seized records, return of income, notices etc. used during an assessment pro....
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....ssue of requirements for proper approval under section 153D, it is found that Hon'ble jurisdictional high court has emphatically held that such an issue is essentially a question of fact and has to be decided based of factual matrix of a particular case. Further, it has been held that approval cannot be reduced to a mechanical exercise and approving authority is required to apply his/her independent mind while granting such an approval. Thus, all the cases have been decided on this point by Hon'ble Tribunal and Hon'ble High court in light of peculiar facts of those cases only. Some of such peculiar facts of such cases are outlined here in under to emphasize upon distinguishing nature of facts of instant cases from those cases. : Case Name and Citation Peculiar Facts of cases in mentioned in first col. Distinguishing facts of the instant case HIGH COURT OF DELHI in the case of PCIT vs. Anuj Bansal ITA 368/2023 Dated July 13,2023 No Assessment records were sent along with draft assessment order -There were infirmities in the figures of Original Return of income and Assessed income. -Addl. CIT did not apply his mind as he did not notice such errors/infirmities. ....
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.... dismissed the SLP raised in the matter. Further, reliance is also placed on the judgement of Hon'ble Kerala High Court in OP(C) No. 340 of 2019 against the order in IA 3123/2018 in OS 125/2018 of II Additional Sub Court, Ernakulam dated 23.06.2022, wherein it is held that the "5 Courts should endevour to dispose of a case on merits rather than on default." The Apex Court in the case of Improvement Trust, Ludhiyana vs Ujagar Singh & Ors on 09.06.2010 in Civil Appeal NO. 2395 of 2008 also held that "After all, justice can be done only when the matter is fought on merits and in accordance with law rather to dispose it of on such technicalities and that too at the threshold. Both sides had tried to argue the matter on merits but we refrain ourselves from touching the merits of the matter as that can best be done by the Executing Court which had denied an opportunity to the appellant to lead evidence and to prove the issues so formulated. In our opinion, ends of justice would be met by setting aside the impugned orders and matter is emitted to the Executing Court to consider and dispose of appellant's objections filed under Order 21 Rule 90 ....
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.... 6. It is submitted that Section 153D does not prescribe any specific procedure or method for the grant of approval. As long as Ld. JCIT is satisfied with the draft assessment order and conveys his approval, the mandate of law stands fulfilled. 7. In the present case, the approval was in fact granted under Section 153D. There is no finding that the assessment was so fundamentally flawed as to render it unfit for any reasonable authority to approve it. This is not a case where Approval has not been granted. Although this Hon'ble Tribunal has decided the said issue of approval u/s 153D against the Revenue in several cases including the cases of Brij Kishore (ITA 8878,8788,8879/DEL/2019) and other connected matters and the case of Metro Tyres Ltd. (ITA 103 l/DEL/2013) and other connected matters. It is apprised that Hon'ble Delhi High Court is considering the issue of Approval u/s 153D in ITA 160/2025 and ITA 251/2025 where in Hon'ble Court has issued notice in the Revenue Appeal. Next date of hearing in these matters is 04.09.2025. 8. It is relevant to point out that approval u/s 153D of the Act needs to be put at a different pedestrian in comparison to sa....
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.... letter of AO, seeking approval. 6. We are of the considered view that all the authorities under the Act are quasi judicial authorities and all the powers under the Act that they exercise arise by way of specific provision and vest them quasi judicial authority only. They may be administrative in the nature that they do not require any opportunity of hearing to the affected parties and on the basis of any lack of opportunity to the affected parties the exercise of quasi judicial powers cannot be questioned, but, in any case, every order of quasi judicial authority should be self speaking and indicative of the fact or otherwise reflecting from the circumstances that the said quasi judicial authority vested with powers under the Act has diligently gone through the record and based on sound reasoning exercises the powers. The manner in which the approval has been granted in cases before us, and conveyed to the AO shows that based on the request alone the approval has been granted. 7. The law in this regard now stands settled that the approval letter should be indicative of the application of mind which certainly is not the case here. Reliance can be placed on the decision of the....
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....n Approval No. 153D/CC-09/Jagat Group/2012- 13/996 dated 28.03.2013. This fact is very much evident from the last page of the assessment order for various assessees" for various assessment years. Hence, it is very clear that a common approval was given by the ld Addl. CIT u/s 153D of the Act vide approval No. 996 dated 28.03.2013 for all the assessees" before us for various assessment years. This goes to prove that the approval u/s 153D has not been given by the ld Addl. CIT for "each assessment year" and for "each assessee" separately which is mandate of the provisions of Section 153D of the Act. This issue is no longer res integra in view of the decision of the Hon'ble Jurisdictional High Court in the case of PCIT Vs. Shiv Kumar Nayyar reported in 163 taxmann.com 9 (Delhi HC); decision of Hon'ble Allahabad High Court in the case of PCIT Vs. Subodh Agarwal reported in 149 taxmann.com 373 (All. HC); PCIT Vs. Sapna Gupta reported in 147 taxmann.com 288 (All. HC) and PCIT Vs. Sidharath Gupta reported 147 taxmann 305 (All. HC), among others. 11. Per contra, the ld DR vehemently argued that very existence of high presumption of law which is also codified u/s 114(e) of the then....
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....nder:- "13. It was held therein that if an approval has been granted by the Approving Authority in a mechanical manner without application of mind then the very purpose of obtaining approval under Section 153D of the Act and mandate of the enactment by the legislature will be defeated. For granting approval under Section 153D of the Act, the Approving Authority shall have to apply independent mind to the material on record for "each assessment year" in respect of "each assessee" separately. The words 'each assessment year' used in Section 153D and 153A have been considered to hold that effective and proper meaning has to be given so that underlying legislative intent as per scheme of assessment of Section 153A to 153D is fulfilled. It was held that the "approval" as contemplated under 153D of the Act, requires the approving authority, i.e. Joint Commissioner to verify the issues raised by the Assessing Officer in the draft assessment order and apply his mind to ascertain as to whether the required procedure has been followed by the Assessing Officer or not in framing the assessment. The approval, thus, cannot be a mere formality and, in any case, cannot be a mechan....
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.... assessee. The said letter clearly states that a letter dated 30.12.2018 was filed by the ld. AO before the ld. Addl. CIT seeking approval of draft assessment order u/s 153D of the Act. The ld. Addl. CIT has accorded approval for the said draft assessment orders on the very same day i.e., on 30.12.2018 for seven assessment years in the case of the assessee and for seven assessment years in the case of Smt. Neetu Nayyar. It is also pertinent in this regard to refer to pages 68 and 69 of the paper book which contains information obtained by Smt. Neetu Nayyar from Central Public Information Officer who is none other than the ld. Addl. Commissioner of Income-tax, Central Range-S, New Delhi, under Right to Information Act, wherein, it reveals that the ld. Addl. CIT had granted approval for 43 cases on 30.12.2018 itself. This fact is not in dispute before us. Of these 43 cases, as evident from page 36 of the paper book which contains the approval u/s 153D, 14 cases pertained to the assessee herein and Smt. Neetu Nayyar. The remaining cases may belong to some other assessees, which information is not available before us. In any event, whether it is humanly possible for an approving author....