TaxTMI 
TaxTMI 
2025 (12) TMI 260
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.... CIT(A)-IV, Kanpur's order dated 21.11.2017 passed in case no. CIT(A)- IV/11300/DCIT-CC/Noida/2015-16, involving proceedings under Section 153A r.w.s. 143(3) of the Act. 3. 880/Del/2018 for AY 2015-16 M/s. Kusum Garments P. Ltd. DCIT, Central Circle, Noida CIT(A)-IV, Kanpur's order dated 21.11.2017 passed in case no. CIT(A)-IV/11229/DCIT-CC/Noida/KNP/2016-17, involving proceedings under Section 143(3)/153A of the Act. 4. 3097/Del/2018 for AY 2009-10 Sh. Yadav Singh DCIT, Central Circle, Noida CIT(A)-IV, Kanpur's order dated 22.12.2017 passed in case no. CIT(A)-IV/11085/DCIT-CC/Noida/2016-17, involving proceedings under Section 153A r.w.s. 143(3) of the Act. 5. 3098/Del/2018 for AY 2010-11 Sh. Yadav Singh DCIT, Central Circle, Noida CIT(A)-IV, Kanpur's order dated 22.12.2017 passed in case no. CIT(A)-IV/11096/DCIT-CC/Noida/2016-17, involving proceedings under Section 153A r.w.s. 143(3) of the Act. 6. 3099/Del/2018 for AY 2011-12 Sh. Yadav Singh DCIT, Central Circle, Noida CIT(A)-IV, Kanpur's order dated 22.12.2017 passed in case no. CIT(A)-IV/11097/DCIT-CC/Noida/2016-17, involving proceedings under Sect....
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....com 429 (Mum) (SA) settling the issue in assessee's favour and against the department that the tribunal could indeed permit such an additional ground to be raised even in second appellate proceedings so as to determine correct tax liability in the case in hand provided all the relevant facts form part of the records. The Revenue could hardly dispute that in furtherance to the department's search action herein dated 27.11.2014 leading to initiation of section 153A assessments, these assessees have filed the Assessing Officer's common proposal under section 153D of the Act seeking approval of the learned prescribed authority followed by the latter's acceptance thereof dated 31st December, 2016 in Smt. Kusum Lata and Sh. Yadav Singh cases involving assessment years 2009-10 to 2015-16. This being the clinching case, we find that the tribunal's recent coordinate order in Sh. Himanshu Verma Vs. ACIT (ITA Nos.1236/Del/2022 & Ors.), dated 29.04.2025 has already held such an assessment involving a common section 153D approval in section 153A proceedings, as non-est in the eyes of law: "4. Learned CIT-DR at this stage seeks to distinguish the above proposal in li....
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....anted by the competent authority under section 153D of the without application of the validity of the assessment under section 153C of the Act. According to the assessee the approval granted by the competent authority as been accorded on presumption, mechanical in nature, consequently the assessment order under section 153C is null and under section 153D of the Act has been accorded on presumption, without application of the mind, which is mechanical in nature, consequently the assessment order under section 153C is null and consequently the assessment order under section 153C is null and void. 6.1 The submissions in support of the additional ground made by the learned counsel for the assessee are summarized as under: (i) The letter seeking approval was submitted to the A The letter seeking Commissioner of Income 26/12/2017, approval was submitted to the Additional tax i.e. the approving authority on which is at the fag end of the expiry of limitation of the assessment. The Ld Additional Commissioner has approved the assessment on same date i.e. 26/12/2017, which shows that the approval has been without going through records. (ii) Only the draft assessmen....
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....a Singh in ITA No. 294 & 295/Del/2022 for AY 2016-17 and 2017-18 7. On the contrary, the Ld. DR submitted that all the additional grounds have been raised merely on the basis of the presumptions and suspicion that the learned Additional Commissioner of Income-tax i.e. approving authority had not gone through the seized material and assessment records leading to allegation of non- application of the mind by the approving authority. The learned DR submitted that after collecting all the material from the search premises, each and every material is being analysed from the angle of possible tax evasion and an 'appraisal report' is prepared by the Income-tax authority who conducts the search action. The learned DR further submitted that as per the procedure prescribed, a copy of the said appraisal report is sent to the concerned Assessing Officer, concerned Additional Commissioner of Income-tax (i.e. the approving authority) concerned and the Commissioner or Principal Commissioner of Income-tax. Accordingly, he submitted that appraisal report of the case containing analysis of entire seized material related to case was already available with the approving authority. The....
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....ture. Furthermore, approvals are granted for more than single assessment years in combined manner to save the resources of the government and to protect the interest of revenue as deliberations on such cases have already been done to conclude the assessment proceedings in holistic and logical conclusion. In the instant case, such practice was followed. Hence, proper and regular discussions, analysis of appraisal report and seized/ impounded materials have been taken place to reach the logical conclusion to finalise the assessment orders and in this way, thorough application of mind was there to conclude the assessment proceedings in the present case along with other such cases where approval is sought. The report has been prepared by recollecting the memories, all the facts and events happened at that time. I, solemnly state that the contents of this affidavit are true to the best of my knowledge and belief and that it conceals nothing and that no part of it is false." 7.1 Similarly, the approving authority also deposed that all issues involved in the assessments were regularly discussed since the stage of issuing notice for query latter to the s....
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....ead and sometimes meetings were sought by the AO to discuss the group case. The meeting between the Assessing Officer and the Addl. CIT were held on a regular basis as I have already said in the above point, Assessing Officer and the Addl. CIT meet very often. (4) The modifications or amendments are suggested on regular basis. The monitoring is done on regular basis and at every stage of the investigation and the examination of the records, the suggestion is being given. Therefore, it is not possible to submit all the suggestions given and no order sheet is being maintained for discussion and meeting with the Assessing Officer. Actually the Addl. CIT is involved in the process from the start of the assessment process. Therefore, the changes in the assessment order, if any, is a continuous process. Therefore, there is no need to change the draft assessment order as the draft assessment order is being prepared after a due deliberation and discussion with the Assessing Officer. (5) I, the Addl. CIT in the case at that time is confirming that due application of mind was done in the case when the order was approved u/s.153D and I was involved in the case from the day w....
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....ested by the Range head before passing the order. It is also submitted that, in a situation where no addition or deletion or any correction to the order is required or suggested and the Range head agrees with AO, a simple approval can also be said to suffice. 5. Regarding assessee's contention that there is single approval for all years it is submitted that different approval has been granted as all the A Yrs are clearly mentioned. It is only an approval on a single page. In this regard it is submitted that in case different pages had been used for each A.Y, even then the sum and substance would have been same. 6. Reliance is placed on Hon'ble ITAT MUMBAI BENCH "C", MUMBAI decision in the case of Pratibha Pipes & Structurals Ltd, Dcrr, Cent. Cir. 17 & 28, Mumbai dated 10-04-2019 (copy enclosed). In that case even the copy of approval was not available but still the decision was given in favour of revenue after considering the facts and circumstances. In that case also affidavit of the Range head was filed wherein it was categorically stated in his affidavit that he had issued necessary approval u/s 153D. 8. We have considered the rival submission ....
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....zed material. In the affidavits filed before us, it has been unequivocally stated by the Assessing Officer as well as the Additional Commissioner of Income-tax that all the issues involved in the assessments were discussed on regular basis from time to time between the two authorities as both the authorities were sitting on same floor of office building. The ld DR submitted that the approving authority after considering the queries raised by the Assessing Officer and the reply of the assessee in the light of appraisal report and seized record, had examined each issue dealt in the draft assessment order properly and thereafter only approval was granted. In the cases cited by the learned counsel for the assessee the fact of discussion on various issues of assessment between the two authorities from time to time has not been brought on record and therefore in those decisions this aspect has not been considered. We further note that certain modifications were suggested to the Assessing Officer in the draft assessment order, which have been carried out by the Assessing Officer in the assessment order passed, which also shows that the approving authority approved the draft order not in m....
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....g been taken approval u/s 153D in the assessment order is not sufficient and what is required to be seen is whether the department is able to provide copy of approval letter granted by the Addl. CIT, or not. Since the department has categorically stated that approval granted u/s 153D of the Act is not available in the assessment folder, obviously, benefit of doubt goes in favour of the assessee that no such approval has been taken by the AO u/s 153D before passing order u/s 143(3) r. w.s. 153A of the I.T. Act, 1961. 17. In the above factual background, if we examine the claim of the assessee by way of additional ground, we find that there is a serious suspicion raises about the conduct of the assessee in taking additional ground challenging the issue of approval u/ s 153D of the I.T. Act, 1961, for the first time, before the Tribunal. The assessee never disputed this issue before the lower authorities. The assessee has taken this issue for the first time before the Tribunal after ascertaining the fact in connection with its RTI application that no such approval was available in the assessment folder. When the assessee has not raised the issue before the CIT(A), then there ....
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....nical ground. Therefore, we are of the considered view that there is no merit in the additional ground taken by the assessee challenging validity of assessment order passed by the AO u/s 143(3) r.w.s. 153A of the Income-tax Act, 1961. Although, the assessee has relied upon certain judicial precedents, we find that those case laws were rendered under different set of facts, where the assessee had taken the ground challenging validity of the assessment before the CIT(A) and also fact that there was no specific observation in the assessment order for taking approval required to be taken u/s 153D of the Income-tax Act, 1961. In this case, the AO has categorically recorded at para 7 of his assessment order in respect of approval taken u/s 153D and such reference has been further strengthened by the affidavits of two officer, who were part of assessment proceedings. Therefore, the case laws relied upon by the assessee cannot be considered as applicable to the facts of assessee case. 18. In this view of the matter and considering facts and circumstances of the case, we are of the considered view that there is no merit in the additional ground taken by the assessee challenging val....