TMI Blog2017 (12) TMI 674X X X X Extracts X X X X X X X X Extracts X X X X ..... rmissible for the Assessing Officer to make any addition under section 153A of the Act when no incriminating material had been found during the course of the search. Lack of approval under section 153D - Whether it would invalidate the assessment order and was not a curable defect? - Held that:- In the facts of the present case, as the assessment order has been passed by an Income Tax Officer, the requirement of obtaining the prior approval of the Joint Commissioner under section 153D of the Act was absolute. The Tribunal, however, has recorded a finding of fact that there is nothing on record to indicate that the prior approval of the Joint Commissioner was obtained. As a natural corollary therefore, in the absence of the requirement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 153D? [ C] Whether on facts of the case and in law, the lack of approval under section 153D would invalidate the assessment order and was not a curable defect? [ D] Whether the Appellate Tribunal was correct in holding the assessment to be invalid on account of no incriminating material found during search, even though there is no such requirement in section 153A, and the provision of the first proviso to section 153(A)(1) requires assessment / re-assessment for all the six assessment years preceding the relevant assessment year to be done and by the virtue of the second proviso to section 153A(1), all pending assessments on the date of search stand abated necessitating fresh assessments for all the six assessment ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the impugned order by reiterating the grounds stated in the assessment order. 5. Insofar as proposed question [A] and [D] are concerned, as can be seen from the impugned order passed by the Tribunal, the Tribunal has found as a matter of fact that no incriminating evidence against the assessee was either found or seized during the course of the search so as to attract the provisions of section 153A proceedings. The Tribunal has placed reliance upon the decision of the jurisdictional High Court in the case of Principal Commissioner of Income Tax v. Saumya Construction P. Ltd. , [2016] 387 ITR 529 (Guj.) , for the proposition that section 153A of the Act does not apply in the absence of any incriminating evidence being found/seized d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from any legal infirmity so as to give rise to a question of law. 9. As regards proposed questions [B] and [C] viz., whether lack of approval under section 153D would invalidate the assessment order and was not a curable defect, it may be noted that section 153D of the Act mandates that 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 sub-section (1) of section 153B, except with the prior approval of the Joint Commissioner. In the present case, the assessment order has been passed by an Income Tax Officer, who admittedly is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to strictly construed, therefore, from the language employed in section 153D of the Act, the requirement of obtaining the prior approval of the Joint Commissioner has to be regarded as mandatory in nature. 11. In the facts of the present case, as the assessment order has been passed by an Income Tax Officer, the requirement of obtaining the prior approval of the Joint Commissioner under section 153D of the Act was absolute. The Tribunal, however, has recorded a finding of fact that there is nothing on record to indicate that the prior approval of the Joint Commissioner was obtained. As a natural corollary therefore, in the absence of the requirement of prior approval of the Joint Commissioner being satisfied, the whole proceeding would s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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