AI Drafter 
TaxTMI 
TaxTMI 
2025 (12) TMI 490
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.... proceedings u/s. 153A of the Act was issued on 10.10.2017. The appellant was granted bail by the Hon'ble High Court of Delhi on 08.10.2018 and later by Hon'ble High Court of Rajasthan on 03.11.2018. The very fact were informed to the Ld. AO vide letter dated 25.01.2018 by the spouse of the appellant that the appellant is under the judicial custody. 3. Accordingly now it is strongly submitted by the appellant that the notice issued by the Ld. AO was never served upon the appellant. Ld. AR submits that the notice should have been served as per the provisions of Code of Civil Procedure, 1908 when a person is under judicial custody should be served by following mode: "Order 5, Rule 24: when a defendant is confined in a prison, the summons should be delivered or sent (by post or otherwise) to the officer in charge of the prison. This officer is then responsible for serving the summons on the defendant." 3.1 It is thus submitted by the appellant that when the notice u/s. 153A of the Act is not served upon the assessee, the entire proceeding is bad in law and thus, the impugned assessment order is liable to be quashed. 4. Ld. DR has vehemently opposed the afores....
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....erned jail. This is the bare minimum requirement in law. With the PCIT having failed to do so, it was not open to the Department to contend the mere appearance of a staff of such person in judicial custody before the PCIT should be taken to be the appearance by the Noticee/Assessee himself" 6. Thus in view of the above, we are inclined to hold that the notice u/s. 153A of the Act was not served upon the appellant thus the entire proceeding is liable to be quashed. Ground no. 2 is thus sustained. 7. Ground no. 3 arises out of challenge of approval given by the Additional CIT u/s. 153D of the Act as allegedly same is mechanically. The Ld. CIT(A) has dismissed the contention of the appellant by observing as follows: 8.2 Regarding the additional ground of appeal relating to approval u/s. 153D, the same is also admitted since it is related only to a point of law and no fresh documents/evidences apart from those already on record, are required to decide the same. I have carefully considered the submissions of the appellant and am satisfied that omission of this ground in Form 35 was not willful or unreasonable. I have also called for the relevant case records relating to t....
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....cer appears to have been already prepared even before the reply was received as the consultations have been conducted on 26.10.2023, 11.01.2024 and 14.03.2024 by the Assessing Officer as mentioned by him in the order itself. Again after the reply was received and the order was passed by the Assessing Officer, the same has been approved by the joint Commissioner. As such, we find that the joint Commissioner has in fact comprehensively and actively participated in the making of the assessment order while his role was only limited to the approval of the assessment order in terms of the CBDT Circular. Thus, we find the order to be vitiated in law. 24. In view of the above, the assessment order cannot be result of an independent application of mind and exercise of discretionary power by the Assessing Officer in terms of Section 143(3) of the Act and but is an order passed under the influence and directions of the superior officers. It is to be noticed that the consultation with a superior officer would be akin to directions of the superior. There is no room available for discretion where consultation is sought from a superior officer while if a superior officer consults his sub....
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....rough 23 draft assessment orders on a single day so the only way to defend it is by saying that at time of grant of approval application of mind need not be examined and whole exercise of assessment where tax authorities have worked together should be taken note of and thereby approval be assumed to be a mere formality. 12. This assertion of department is doing more harm than any benefit in defending the challenge by the assessee. The approval u/s. 153D of the Act cannot be treated mere formality only and the purpose of inserting this provision is two folds i.e., Firstly, before approving the senior authority will ensure that the assessee should be protected against the undue and irrelevant addition and disallowances and the approving authority will also ensure that proper enquiry or investigations are carried out by the Assessing Officer on the relevant materials including material in the hands of the Department. Secondly, the Assessing Officer also keeps in mind the interest of Revenue. If an approval has been granted by the approving authority considering it to be mere formality for the reasons of supervision of assessment proceedings at previous stages then the very purpose ....