TMI Blog2018 (2) TMI 1858X X X X Extracts X X X X X X X X Extracts X X X X ..... approval after duly examining the material prior to approving the assessment order. The circumstances indicate that this exercise was carried out by the Jt. CIT in a mechanical manner without proper application of mind.Jt. CIT has failed to grant approval in terms of s. 153D of the Act i.e., after application of mind but has rather carried out exercise in utmost haste and in a mechanical manner and, therefore, the approval so granted by him is not an approval which can be sustained. - Decided in favour of assessee. - ITA Nos. 321 to 324, 279 to 281, 325 to 331, 400 to 404/Jd/2016, C.O. Nos. 8 to 10/Jd/2016 and ITA Nos. 514 to 516/Jodh/2015 Assessment Year: 2005-2006;2007-2008;2008-2009;2009-2010;2010-2011 - - - Dated:- 23-2-2018 - B.P. Jain and Sudhanshu Srivastava, JJ. For Appellant: K.C. Badhok For Respondents: N.R. Mertia and Shyam Lal Bansal ORDER Sudhanshu Srivastava, 1. This is a bunch of twenty-two appeals and three cross-objections. Out of the twenty-two appeals, three appeals viz., ITA Nos. 514-516/Jodh/2015 have been preferred by the Department for the various assessment years whereas the remaining nineteen appeals and the three cross-objection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the assessee has filed the CO. The learned Authorised Representative read out the grounds in the CO which are as under: 1. Impugned order was erroneously held as valid and sustainable by CIT(A): That, in the facts and in the circumstances of the case, in view of the material facts available and were brought on record by the appellant, the learned CIT(A) erred in law and facts and was unjustified: (a) in upholding the impugned order passed by learned AO and dismissing the ground of appellant, relating to validity and sustainability of the assessment order, which otherwise was neither valid nor sustainable in law. (b) in upholding the order as was approved by Range Head Jt. CIT, in accordance with law and dismissing the ground and rejecting the submission of the appellant in ignoring the settled position of law as laid down by apex Court, as well as the jurisdictional High Court that 'if an act or a thing is required to be done in a particular manner as prescribed by law, then, either such thing or act should be carried out and done strictly in accordance with the prescribed procedure or not at all otherwise'. (c) in not holding the impugned assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders were received and approved on the very same day. It was also submitted that the Jt. CIT on that particular day, i.e., 31st March, 2013, was camping at Udaipur and was not in Jodhpur and, therefore, it was very much apparent that the assessment records were lying at the Jodhpur office and only the draft assessment orders were sent for approval. It was submitted that in view of the fact that the Jt. CIT had only given approval to the draft assessment orders without perusing the assessment records, it was clearly established that the assessment orders were approved without application of mind and in a mechanical manner. 2.2 Our attention was drawn to p. 13 of the paper book wherein a copy of the reply dt. 9th March, 2015 to the assessee's application under Right to Information Act, 2005 was placed wherein the assessee was informed that the assessment records were received in the Range office at Jodhpur and the Inspector of the range office had verified the same. The learned Authorised Representative pointed out that this reply also mentioned that the assessment order was sent by mail/fax to the Jt. CIT at Udaipur for approval and after approval, the assessment records wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e being returned. Learned CIT-Departmental Representative also submitted that the time of the fax giving the approval was mentioned at top of the copy of the letter granting the approval which was 6.56 a.m. on 31st March, 2013 and, thus, it was apparent that the Jt. CIT had applied his mind throughout the night before granting approval. The learned CIT-Departmental Representative submitted that it was evident that the Jt. CIT was functioning even beyond office hours and, therefore, the contention of the learned Authorised Representative that the Jt. CIT had not applied his mind was incorrect. It was also submitted that the assessment order should not be set aside on a mere technicality and the issues should be argued at length on merits. 5. We have heard the rival contentions and have perused the material on record. The main contention of learned Authorised Representative is that reasonable time was not available with the Jt. CIT for the grant of necessary approval as envisaged under s. 153D of the Act. We have perused the forwarding letter dt. 30th March, 2013 seeking approval of the draft assessment order. The date of receipt of this letter in the office of Jt. CIT is indisput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the approval granted by Addl. CIT was mechanical and had been passed without considering the material on record and was, therefore, devoid of any application of mind. The impugned assessment order was annulled. 5.2 Similarly, Tribunal, Allahabad Bench in Verma Roadways vs. Asstt. CIT (2001) 70 TTJ (All) 728 : (2000) 75 ITD 183 (All) held that while granting approval, CIT is required to examine the material before approving the assessment order. In this case, Tribunal, Allahabad Bench was examining the issue of approval under s. 158BG of the Act and it opined that the object for entrusting the job of approval to a superior and a very reasonable (sic-responsible) officer of the rank of CIT is that he with his ability, experience and maturity of understanding can scrutinize the documents, can appreciate its factual and legal aspects and can properly supervise the entire progress of assessment. Tribunal, Allahabad Bench held that the concerned authority while granting the approval is expected to examine the entire material before approving the assessment order and further that whenever any statutory obligation is cast on any authority, such authority is legally required to discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... io of the Co-ordinate Benches of Mumbai and Allahabad as afore-mentioned and also applying the ratio of the judgment of the Hon'ble apex Court in the case of Sahara India (Firm) vs. CIT (supra), we hold that the Jt. CIT has failed to grant approval in terms of s. 153D of the Act i.e., after application of mind but has rather carried out exercise in utmost haste and in a mechanical manner and, therefore, the approval so granted by him is not an approval which can be sustained. Accordingly, assessments in three COs and nineteen appeals of the assessee(s), on identical facts, are liable to be annulled as suffering from the incurable defect of the approval not being proper. Accordingly, we annul the assessment orders in CO Nos. 8 to 10/Jodh/2016 and ITA Nos. 325 to 331/Jodh/2016. Thus, all the three COs and the nineteen appeals of the assessee, as aforesaid, are allowed. 6. Since we have already allowed the assessee's COs corresponding to ITA Nos. 514 to 516/Jodh/2016 preferred by the Department wherein we have annulled the assessment orders, the Department's appeals become in-fructuous and they are dismissed as such. In the final result, the three COs and 19 appeals fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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