TMI Blog2017 (4) TMI 1371X X X X Extracts X X X X X X X X Extracts X X X X ..... 09.2011 therefore, these are being clubbed and we are disposing them together by this consolidated order. Application for assessee under Rule 27 of the Income Tax Appellate Tribunal Rules, 1963 (hereinafter ITAT Rules) in ITA Nos. 321, 322 192/Lkw/2016 2. We have heard argument of both the sides and carefully considered the relevant material available on record of the Tribunal. Ld. counsel of the assessee-respondent submitted that the assessee want to invoke the provision of ITAT Rules 27 to challenge the order of the CIT(A) on following grounds: The Ld. CIT(A) has erred in law and on facts in affirming the jurisdiction of the Assessing Officer under section 153A, ignoring that the Additional Commissioner has granted the approval in a mechanical manner, the CIT(A) has further erred in not appreciating that no proceedings were pending on the date of search and the entire assessment has been framed without any reference to incriminating material found as a result of search. 3. The Ld. counsel further submitted that under Rule 27 of the ITAT Rules, a legal plea, which was not raised by the assessee before the lower authorities, can be raised at any stage by the proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a respondent, in an appeal filed by the plaintiff, with an option to contest unfavourable decision of the CIT(A) on the aspect(s) of an issue, the final decision on which issue has been delivered in his favour. Take an instance of first appellate authority deciding the legal issue of reopening of an assessment against the assessee but deleting the addition on merits in favour of the assessee. When the Revenue files appeal against this order before the tribunal, it will naturally assail the finding of the CTT(A) qua the deletion of addition on merits. Notwithstanding the fact that the respondent assessee did not file any appeal against the order passed by the CTT(A), shall still be entitled under Rule 27 of the ITAT Rules, 1963, to support the conclusion of the order of the first appellate authority, being the deletion of addition, by challenging the finding of the CTT(A) which was delivered against him on the legal issue of reopening of assessment 14. 4. The mandate of Rule 27 is to be seen in contradistinction to the provisions of section 253(4) of the Act, which empower the respondent, on an appeal filed by the plaintiff, to file cross objection against any part of the order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... giving an opportunity to the respondent to support the impugned order in an appeal filed by the plaintiff. A pragmatic approach on consideration of the object of such Rule, in our considered opinion, necessitates the adoption of liberal interpretation that when a particular issue is decided in favour of the respondent and the plaintiff has come up in appeal against such decision on the issue, then all the relevant aspects having bearing on the overall issue, even though not specifically decided against the plaintiff, should be open for challenge by the respondent under the rule. If the respondent is debarred from raising that aspect of the issue, which was not taken up before the first appellate authority or taken up but remained undecided, and the appeal of the plaintiff is allowed, the respondent would be rendered without remedy. It has been noticed above that a respondent is not entitled to file cross objection on such aspects of the issue u/s. 253(4) of the Act, the scope of which provision is circumscribed to challenging the ultimate unfavourable conclusion drawn by the CIT(A). In common parlance, when an issue is decided in favour of one party whether on one aspect or the ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 04.07.2013 stating that original return has filed in pursuant to the notice u/s. 153A of the Act, notice u/s. 143(2) and 142(1) of the Act were issued on 22.08.2013, therefore, notice u/s. 142(1) of the Act along with questionnaire was issued on 29.11.2013, the Assessing Officer issued show cause notice on 21.03.2014, the assessee company filed its reply along with various details and documents dated 13.03.2014 26.03.2014, approval from ACIT was taken on 31.03.2014 in mechanical manner and very same day assessment order were passed u/s. 143(3) of the Act read with 153A of the Act. Ld, counsel vehemently pointed out that the date of approval u/s. 153D of the Act and the date of assessment order are same i.e. 31.03.2014 and while granting approval the ACIT first of all severely criticized this approach of the Assessing Officer and had last made an observation that the approval has been granted in a mechanical manner. The Ld. counsel placing reliance on the various decisions including decision of the Hon'ble Bombay High Court in the case of CIT Vs. Akil Gulamani Somji reported in 80CCH 0053 (Bom,) (HC) and order of the ITAT Mumbai Bench in the case of Smt. Shree Lekha Damani V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53D/2013-14 TO, The Asstt. Commissioner of Income Tax, Central Circle-1 Kanpur Sub: Approval of Draft assessment orders U/s. 153A/153C of the Income Tax Act 1961 in the case of M/s. RAMA Paper Mills Ltd. cases-Regarding- Please refer to your letter bearing F. No. ACIT/CC-1/KNP/Approval/2013-14/661 dated 28/03/2014 which was received in this office at 07:00 PM on 30/03/2014 along with case records and draft assessment orders pertaining to the cases as detailed in the said letter seeking approval U/s. 153D of the Income Tax Act, 1961. In this regard, it is noticed that prior to submission of these draft assessment orders received, no discussion has been made at any stage of proceedings With the undersigned including at the stage of preparation finalization of Questionnaires U/s. 142(1) of the Income Tax Act, 1961. Accordingly, keeping in view the limitation aspect in the matter which is going to be expired today itself, approval is accorded in the following 54 cases of RAMA Paper Mills Ltd. Group of cases, solely relying on your undertaking to the effect that while completing the assessment as per draft assessment order, all the observations made in the appraisal repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant record on which assessment order has been framed and he is also required to apply his mind to the proposals put up before him for approval in the light of material record, gathered and relied upon by the Assessing Officer. The said power cannot be exercised in a mechanical manner casually without application of mind in a routine manner. 14. In the present case ACIT has granted impugned approval half heartedly without application of mind and without considering and perusing the material on record. Thus, we are inclined to hold that there has been no application of mind by the ACIT before granting the approval. Consequently, we hold that the assessment orders made u/s. 143(3) of the Act r.w.s. 153A of the Act in the case of M/s. Siddhbhumi Alloys Ltd. for Assessment Year 2006-07 is bad in law and deserve to be annulled, thus, we ordered accordingly. Finally additional ground of appeal raised by the assessee by way of Rule 27 of the ITAT Rules in ITA No. 321/Lkw/2016 for the Assessment Year 2006-07 is allowed. 15. Since, at the very beginning of the hearing, the Ld. counsel of the assessee as well as Ld. CIT DR placed their concurrence to the fact that the additional ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
