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2021 (9) TMI 858 - AT - Income TaxAssessment u/s 153A - proof of incrementing material found in search or not? - validity of the additions under section 68 in absence of incriminating evidence found during search - HELD THAT:- We find there is no reference in the Panchnama about incriminating evidence qua the share application money or share premium for all the impugned assessment years - assessee while filing reply before AO on 14.12.2018, in response to the show cause notice dated 29.08.2018, clearly stated there is no incriminating evidences against the assessee for making the said additions. We find that the AO passed the assessment order on 14.12.2018 and placed the same before JCIT for his approval, thus there is no consideration of material facts by A.O. with regard to the assessee’s reply dated 14.12.2018 filed before the AO in response to the show cause notice dated 29.11.2018. Delhi High Court in celebrated case of CIT Vs Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] held that completed assessment can be interfered with by the AO while making assessment under section 153A only on the basis of some incriminating material unearthed during the course of search which was not produced or not already disclosed or made known in course of original assessment - no addition under section 68 was warranted in absence of incriminating evidence, in the abated assessment - Decided in favour of assessee. Validity of approval under section 153D - ground of appeal in granting bulk approval of the assessment under section 153A - JCIT approved the assessment order by presuming that the necessary opportunity has been given to the assessee and all the records, evidences and materials have been thoroughly verified. The JCIT granted bulk approval of 95 assessment orders which clearly defeats the intent and purpose behind insertion of section 153D brought in the statute by the Finance Act, 2007. JCIT while granting approval, presumed that Assessing Officer has given proper hearing to the assessee and thoroughly verified seized material and there are no adverse findings, satisfied himself that all the issues emanating from the records have been verified and additions wherever required have been proposed. We further find that there is no independent application of mind on the part of ld.JCIT while granting the approval. Mumbai Tribunal while considering the similar ground of appeal in granting bulk approval of the assessment under section 153A, in case of Arch Pharmalabs Ltd Vs ACIT[ [2021 (4) TMI 533 - ITAT MUMBAI] held that the approval accorded under section 153D is without any occasion to refer to the assessment records and seized material, if any, incriminating the assessee and hence such approval is in the realm of an abstract approval of draft assessment orders which was unsubstantiated and unsupported and consequently suffered from total non-application of mind. No satisfaction in the approval order that draft assessment after considering the material placed before him, rather the ld JCIT recorded that it is presumed that the AO granted proper opportunity to the assessee etc. Also see Sanjay Duggal & others[2021 (1) TMI 909 - ITAT DELHI] We find convincing force in the submissions of the assessee that the approval granted by JCIT suffer from non-application of mind and depends on presumption of proper performance of duty by A.O. such per functionary approval under section 153D cannot termed as legitimate. The consequential assessment orders based on non-est approval under section 153D, thus are void-abinitio on this ground alone. - Decided in favour of assessee.
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