TaxTMI 
TaxTMI 
2022 (9) TMI 1694
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....0-11, 0335/10-11, 0336-10-11 for the assessment years 2003-04 to 2007-08 and IT(ss) A No.138/CTTK/2013 is filed against the order of the ld CIT(A)-1, Bhubaneswar dated 27.5.2013 in Appeal No.0337/10-11 for the assessment year 2008-09. 3. Shri Sunil Mishra, ld AR appeared for the assessee and Shri M.K. Gautam, ld CIT DR appeared for the revenue. 4. At the outset, ld CIT DR submitted that the assessee has filed a paper book only on 20.9.2022. It was the submission that he has been granted only two days. Consequently, it was his prayer that the adjournment should be granted so that he could analyse the papers submitted in the paper book. The adjournment sought by ld CIT DR is rejected. It was then submitted by ld AR appeared for the assessee that as the assessee is challenging the approval u/s.153D alleged to have been granted to pass the assessment order u/s.153D, the revenue may be directed to produce the assessment records and consequently, the appeals may be adjourned. This request of ld AR has also been rejected. It must be mentioned here that these appeals have been filed in 2013. These appeals have been posted more than 16 times. For one reason or another, adjournments ha....
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....ssion, we set aside and quash the entire impugned appellate orders. Resultantly, all the additions stand deleted. Additional ground of appeal of assessee is allowed." 4. That it is further submitted that vide order dated 21.01.2022 of this Hon'ble Bench in the case of M/S Serajuddin & Co.,which is the main case of this Group,for the AYs 2003-04 to 2009-10 in ITA(ss) A Nos. 25 to 28/CTK/2013, ITA(ss) A No. 22/CTK/2013, ITA(ss) A No. 16/CTK/2013 & ITA(ss) A No. 17/CTK/2013 respectively, the orders of authorities below were quashed on the ground of non-compliance to the provisions of section 153D.In the said order dated 21.01.2022 at page-25 in bold letters the submission of the Appellant in that case was noted by this Hon'ble Bench that the so called proposal dated 29/12/2010 of the Ld. AO seeking approval u/s 153D and also the so called approval dated 30/12/2020 u/s 153D were filed by the Revenue on 26/02/2020.But in the case of the present Appellant no such documentary evidences were made available to the Appellant during the course of appellate proceedings before the Ld. CIT(A).Rather the Ld. CIT(A) held that there is no need to make those documents available to t....
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....y the supervisory officer giving approval to the proposed block assessment, at least one month before the time barring date. Finally once such approval is granted, it must be in writing and filed in the relevant folder indicated above after making a due entry in the order-sheet. The assessment order can be passed only after the receipt of such approval. The fact that such approval has been obtained should also be mentioned in the body of the assessment order itself." The Appellant also rely on the Hon'ble Supreme Court decision in the case of Sahara India(Firm) v. CIT : 300 ITR 403 (SC) (APB) 284-289) holding " that it is civil consequences which obliterates the distinction between quasi-judicial and administrative function. Moreover, with the growth of administrative law, the old distinction between judicial act and administrative act has withered away". The Appellant would also wish to draw the kind attention of this Hon'ble Bench to para-6 of the decision in the case of Sahara India(Firm) supra whereby it is held as under: " Needless to emphasise that before granting approval, the Chief Commissioner or the Commissioner, as the case may be, must have bef....
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....s has been filed in the paper book does not show the approval having been obtained u/s.153D of the Act. It was the submission that the assessee had filed an application for the certified copies of the order sheets and the approval u/s.153D but the assessee has received only certified copies of the order sheets but has not received the approval u/s.153D of the Act. When it was questioned as to where is the application filed, wherein, the certified copies of the order sheet and the approval u/s.153D has been requested, it was mentioned that the said application was not available at this point of time. 7. Ld AR further drew our attention to the page 120 of PB, which is the copy of the order of the Co-ordinate Bench of Delhi ITAT in the case of Shri Ajay Sharma vs DCIT in ITA No. 3554/Del/2015 order dated 14.2.2020 to support his arguments that when there is no approval u/s.153D of the Act, the assessment is liable to be annulled. It was further submitted that the approval if at all is there, the same should not be mechanical approval. Ld AR further placed reliance on the decision of Co-ordinate Bench of this Tribunal in the case of Seerajudin & Co. in IT(ss) A Nos. 25/CTK/2013 and ....
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....essment, at least one month before the time barring date". To this, Id CIT DR placed reliance on the decision of Hon'ble Karnataka High Court in the case of Gopal S.Pandit vs CIT (2018) 96 taxmann.com 233 (Karnataka) to submit that the Hon'ble High Court has categorically held that the approval under section 153D do not require any opportunity of hearing to be given to the assessee by the authority who has to approve draft assessment order passed by the Assessing Authority. It was the submission that the said provisions of section 153D issued is in parimateria with the provisions of section 153BG in respect of approval to be granted by the ld CIT and the said office manual para 9 related to the provisions of section 158BG. He further relied on the decision of Hon'ble Madras High Court in the case of SAKTHIVEL BANKERS v. ACIT, 255 ITR 144 (Mad), wherein also, it has been held that notice had not been given to the assessee prior to said approval. He further placed reliance on the decision of Hon'ble Karnataka High Court in the case of Rishabchand Bhansali vs Deputy Commissioner Of Income Tax, 267 ITR 577 (Karnataka), wherein, it has been held that the approval of Join....
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....s quality. This is not a situation in respect of approval u/s.153D of the Act. A perusal of the assessment order further clearly shows that substantial and innumerable opportunities had been granted to the assessee in the course of assessment. The assessee has chosen not to cooperate in the assessment proceeding, and left with no other alternative, the assessment has been completed by the AO to the best of his judgement. Therefore, to say that an approval can be challenged or that the approving authority has not applied his mind would be a travesty jurisdiction insofar as there has been no correspondence much less response from the assessee in respect of assessment proceedings. 11. The decision relied upon by ld AR in the case of Seerajudin & Co. (supra) has gone into the quality of the satisfaction recorded by the approving authority. We are not in agreement with the said findings and in view of the decision of Hon'ble Madras High Court in the case of CIT Vs. Hi Tech Arai Ltd, 321 ITR 477 (Mad), we take a different stand. As mentioned earlier para 9 of the official manual procedure is a guideline for the assessing authority. It is also admitted fact that said guideline is i....
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....ase, the AO has granted substantial opportunity, which cannot be faulted with. 14. We are live to the decision of the Hon'ble Supreme Court in the case of Ashokji Chanduji Thakor Vs. Pr. CIT [2021] 130 taxmann.com 131 (SC), wherein, it has been categorically held that when the assessee has been granted substantial opportunity and the assessee has not co-operated in the assessment, the issues cannot be restored to the file of the AO unless reasoned and speaking order has been passed by the Tribunal. 15. In the present case, it is an admitted fact that substantial opportunities have been granted to the assessee. It is also an accepted and admitted fact that the assessee has chosen not to cooperate in the assessment proceedings. However, the assessee has challenged that no approval has been taken before passing the assessment order. The revenue has not place the approval u/s.153D of the Act. As mentioned earlier, this is only a technical breach which has resulted in an irregularity taking place in the course of assessment. Under ordinary circumstances, respectfully following the principles laid down by the Hon'ble Jurisdictional High Court in the case of Shiv Kumar Agarw....