TaxTMI 
TaxTMI 
2025 (11) TMI 404
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....and supporting documents provided by the appellant company and has further erred in sustaining the addition of Rs. 90,00,000/- received as an advance against sale of the project treating as unexplained credit u/s 68 of the Act, which is highly arbitrary, unjustified, bad- in law, uncalled for and merely on presumption of the Ld/- AO. 2. The Ld/- CIT(A) has erred in law and facts of the case in confirming the action of the Ld/- AO of making an addition of Rs. 90,00,000/- received as advance for sale of land alleging that the same as an unexplained cash credit, without bringing on record anything contrary to the evidence furnished by the assessee, which is highly arbitrary, unjustified, bad- in law, uncalled for and merely on presumption of the Ld/- AO. 3. Notwithstanding to the above, the Ld/- AO has erred in making the addition of Rs. 90,00,000/- in order passed u/s 143(3)/153A of the Act, in pursuance to section 254 which is not based upon any seized material found in the course of search conducted on 15.09.2008 which is illegal, bad-in-law and uncalled for. 3. The assessee has also raised additional ground of appeal, which reads as under:- 5. That th....
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.... 01.05.2009. Order u/s 153A r.w.s. 143(3) was passed whereby an addition of Rs. 90 lakhs was made in the hands of the assessee u/s 68 of the Act. The assessee's appeal was dismissed by the Ld. CIT(A). In appeal, a Co- ordinate Bench of the Tribunal in ITA No.1754/Del/2014, dated 11.08.2016 remanded the matter back to the ld. AO with the following directions:- "5. We have considered the rival submissions and have perused the order of the Assessing Officer and learned CIT(A). We find that learned CIT(A) has admitted the agreement to sell between the assessee and M/s Greencity Buildtech Limited as additional evidence. However, after admitting the same, learned CIT(A) failed to consider the same in its totality. On one hand, learned CIT(A) admitted the same but, at the same time, he doubted the authenticity of agreement to sell. He also failed to notice the important fact that as per agreement to sell, the assessee had agreed to sell 10 acres of land for a sum of Rs. 20,96,32,500/-. Though M/s Greencity Buildtech Limited had given the advance of Rs. 90 lakhs but they had to pay more than Rs. 20 crores to the assessee. Therefore, the presumption that the assessee was to pay the....
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....supporting documents entered into between the parties, if any. 2. Furnish the copy of ITR, Computation of Income, P&L A/c Balance sheet with all schedule and annexure for the A. Y. 2008- 09. 3. Copy of Account of the transactions conducted with M/s Best City Projects India Pvt. Ltd during the F.Y. 2007-08 relevant to the A.Y. 2008-09. 4. Copy of Bank Statement, Highlighting the Transactions conducted with the M/s Best City Projects India Pvt. Ltd. during the F.Y. 2007-08 relevant to the A. Y. 2008-09. 5. Further, summons u/s 131 of It Act, were also sent on. 05.12.2017 to the Directors Sh. Sunita Chaudhary, Jetendra Chaudhary & Sanjay Bansal for appearance on 12.12.2017 but the summons have been received back with unserved sent through speed post with the postal remarks "No Such Person" from two parties but Sh. Sanjay Bansal did not appear on the given date as summons has not been received back in respect of the Director. 6. On 05.12.2017 Sh. Rajat Aggarwal & Sh. Rajesh Arora, CA/A.R. appeared and were informed that notices u/s 133(6) of IT Act, is issued have received back on15.12.2017. Sh. Rajat Aggarwal, CA/AR appeared and was informe....
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....ed had allegedly given advance of Rs. 90,00,000/- as part of the execution of agreement to sell 10 acres of land for total consideration of Rs. 20,96,32,500/-. If the agreement has not been executed for any reasons, the other party would try to claim the amount back. But neither the Assessee has returned the amount of Rs. 90,00,000/- nor has any proof been submitted that M/s Green City Buildtech Limited is making any efforts in this regard. 7.9 The present appeal filed by the Appellant is against the order of the Assessing Officer who was complying with the directions given by the Hon'ble ITAT. As stated above, the Assessing Officer has fully complied with the said directions but the Appellant could not comply with such directions. Hence, the decisions cited by the Appellant are distinguishable on facts. Therefore, the addition of Rs. 90,00,000/- is confirmed...." 8. The ld. DR has vehemently argued qua consideration of additional ground of appeal. It has been claimed that no injury is caused to the assessee by not obtaining approval u/s 153D by the AO during the remand proceedings. It has been fiercely submitted that there is no statutory requirement of obtaining a....
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....The approval dated 24.12.2010 in fact was to the effect that assessment of assessee can be passed under Section 153A. Remand direction was that the assessment under Section 153A should be framed again. There was no occasion of fresh assumption of jurisdiction to frame assessment. Rather it was in continuation of earlier proceeding which was duly approved. Even otherwise there is no question of seeking an approval from the Joint Commissioner or the Additional Commissioner Officer lower in rank than Commissioner for complying with the directions given by the Commissioner. 12. The CIT (Appeals) allowed the appeals of the assessee on the basis that compliance of Section 153D of the Act was mandatory. It is not the issue whether the provision is procedural or the requirement of approval is mandatory. The fact is that Section 153D of the Act had been duly complied with by the A.O. The contention raised that even an order of remand cannot be passed without complying with Section 153D of the Act is beyond the scope of the section. The Tribunal rightly held that Section 153D of the Act is for assuming jurisdiction to pass an assessment order under Section 153A of the Act and the A.....
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....Thus, whether the remand proceedings would constitute a case of a fresh "assessment or re-assessment" prescribed u/s 153D or the approval u/s 153D originally granted to the AO would suffice ?. We have noted that the Hon'ble Co-ordinate Bench of this Tribunal in ITA No.1987/Del/2016 and of Ranchi Tribunal in ITA (SS) No.70 to 74/RAN/2019 have held the view that an AO is required to obtain approval u/s 153D in all cases where the Tribunal had directed denovo assessment. Thus, in ITA No.1987/Del/2016 (supra) it was held as under:- ".....3. Learned CIT(DR), first of all, invites our attention to the Revenue's third substantive ground seeking to reverse the CIT(A)'s lower appellate discussion quashing the impugned second round assessment dated 11.06.2015 as not framed after obtaining due approval under section 153D of the Act as under: "13. I have considered the legal claim of the appellant company, the comments of the AO on the issue submitted during appellate proceedings and the rejoinder of the appellant company on the same. The AO has contended that the approval u/s. 153D is not required as assessment proceedings had not been set aside or annulled and the Hon'b....
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....and collection register of the AO. This means that the original order passed by the AO was set aside and in consequence thereof the demand against the assessee also become Nil. The order of assessment passed by the AO on 11.06.2015 led to creation of fresh demand against the assessee and the said order has been the subject matter of appeal before CIT (A). It is quite clear from the notice of demand u/s. 156 issued by the AO to the appellant company dated 11.06.2015 that the demand of Rs. 32,34,69,151/- had been raised in consequence of the assessment order and the assessee vide point no. 6 of the said notice was given an option to appeal against the assessment before the CIT (A)-26, New Delhi within 30 days of the said notice. If the contention of the AO that no fresh assessment or reassessment had been done then there would not have been any need to mention the right of the assessee to file appeal before the CIT (A). If the view of the AO is to be seen as correct then no appeal would be maintainable before the CIT (A) and the assessee would have to take alternative remedy to go to the Hon'ble High Court. This clearly shows that the Hon'ble ITAT vide their order dated 31.03....
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....administrative. The Hon'ble Bench, in para 12 of the order made the following observations: - (1). The contention that the order dated 20 January, 2010 was only an administrative Order, to give effect to the order dated 31 July, 2009 passed by the Tribunal is also without any merit. The AO, being an authority under the Act, performs the function as specified in the Act. The AO has the power to make an assessment under section 143 or 144 of the Act. It is the said assessment which is examined by the Appellate Authority. The Appellate Authority has power either confirm, reduce, enhance or set aside the assessment. In the event, the Appellate Authority remands the matter to the AO, the AO is required to commence proceedings in terms of the directions of the Appellate Authority. Such proceedings are not administrative but have to be conducted in accordance with the provisions of the Act and the order would be an order of assessment under section 143/144 of the Act. In Caltex Oil Refining (supra) a Division Bench of Bombay High Court had explained the above in the following words: - " So far as the first submission, which relates to the nature of a order passed by ....
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.... with. In view of this, the order passed by the AO has to be quashed." 4. Mr. Javed Akhtar, CIT(DR), vehemently submits that learned Assessing Officer's impugned second round assessment nowhere required the prescribed authority's section 153D approval once again, since dealing in remand proceedings only as per the tribunal's first round directions. He next contends that the CIT(A) first of all ought not to have quashed the impugned assessment for want of a valid section 153D approval since such an issue is only procedural in nature. And also that even if such an approval is required in second round proceedings, it is only a procedural defect than that vitiating the entire proceedings. 5. We have given our thoughtful consideration to the Revenue's forgoing vehement submissions on the issue of section 153D approval and find no merit therein. This is for the precise reason that as evident from the above extracted detailed discussion, learned Assessing Officer had framed nothing else but a second round assessment vide order dated 11.06.2015 without getting it approved under section 153D of the Act. It would be indeed not out of the context to observe here that the CIT....
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.... the remand directions under Section 263, in a case where the assessment under Section 153A of the Act was originally framed after compliance of Section 153D of the Act?'' 9. We answer the question against the assessee. Section 153D is as under: ''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 (sub- section (1) of) Section 153A or the assessment year referred to in clause (b) of subsection (1) of Section 153B, except with the prior approval of the Joint Commissioner:)'' 10. As per Section 153-D, no order of assessment under Sections 153A and 153B can be passed by the A.O. without prior approval of the Joint Commissioner. 11. The assessment order dated 24.12.2010 was passed under Section 153A read with Section 143(3) of the Act after obtaining approval under Section 153D of the Act. The approval was vide letter dated 24.12.2010. Thereafter the said order was taken up in revision. The order was set aside and the matter was remitted to the A.O. to pass a fresh assessment order. Th....
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.... approval u/s 153D. It was ruled that remand directions to frame an assessment u/s 153A did not occasioned, assumption of fresh jurisdiction to frame an assessment. We have noted that the facts of the present appeal are identical to those available in the decision in the case of Osho Forge Limited (supra). There is nothing on record to suggest that the approval u/s 153D was set aside. 17. This now brings us to the issue of judicial discipline and which of the two orders are to be followed. Thus, whether the decision of Hon'ble Co-ordinate Bench of this Tribunal and/or Ranchi Tribunal is to be followed or that of Hon'ble Punjab & Haryana High Court is to be followed. It is settled principal of law that orders of Jurisdictional High Court have binding precedent value upon all the authorities under its jurisdiction. Similarly orders of Tribunal would have a value of persuasive binding upon its Benches so far as facts of the case are not distinguishable. However, it is also settled principal of law that orders of an Hon'ble non-jurisdictional High Court would take precedence as having higher persuasive value over those of the orders pronounced by Hon'ble Co-ordinate Benches of a Tri....