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TMI Blog2018 (2) TMI 1858X X X X Extracts X X X X X X X X Extracts X X X X ..... legal ground challenging the very foundation of assessment proceedings, it was essential that this legal ground of the assessees may be heard and adjudicated first and the arguments on merits, both in the Department's appeals as well as the assessee's appeals, may be taken up at a later stage. The learned CIT-Departmental Representative had no objection to the request of the learned Authorised Representative. Therefore, we proceed to hear both the parties on the legal ground taken by the assessees in their COs and appeals on the validity of assessment proceedings and, thereafter, the arguments on merits will be heard, if we deem it necessary to do so. 2. Since the COs and the assessees' appeals have raised an identical legal ground, taking CO No. 09/Jodh/2016 for asst. yr. 2010-11 as the lead case, the learned Authorized Representative submitted that in this case, the assessee had filed his return of income showing an income of Rs. 3,19,21,250 which was initially processed under s. 143(1) of the Act. The learned Authorised Representative submitted that earlier, a search operation under s. 132 of the Act had been carried out by the Department on 1st April, 2010 and 2nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainable and invalid. 2. The appellant craves leave to add, alter, amend, modify, substitute or delete any ground of cross-objection on or before hearing of the cross-objection. 3. The respondent-cross-objector prays that the CO may very kindly be allowed." 2.1 The learned Authorised Representative submitted that the impugned assessment order was incorrectly upheld by learned CIT(A), as the validity of the assessment order itself was not established. It was submitted by the learned Authorized Representative that the assessment order was passed on 31st March, 2013 which was passed after obtaining prior approval of the Jt. CIT, Central Range, Jodhpur. The learned Authorised Representative submitted that the approval to the assessment order was accorded vide office letter No. Jt. CIT/Central Range/Ju/2012-13/889, dt. 31st March, 2013. The learned Authorised Representative further submitted that the case records were received in the office of Jt. CIT on 31st March, 2013 itself and the order was also approved on 31st March, 2013 and, therefore, the Jt. CIT had granted the approval to the draft assessment order without application of mind as the draft assessment order was received a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er for necessary approval. Learned Authorised Representative pointed out that the date of receiving of this letter in the Jodhpur Range Office was 31st March, 2013 i.e., the day on which the approval was granted. The learned Authorised Representative vehemently argued that the assessment order suffered from the inherent defect of the approval not having been granted after due application of mind. It was submitted that the assessment order had to be annulled as no approval was legally granted which was mandatory and essential in search cases as per the mandate of s. 153D of the Act. 2.4 Our attention was also invited to cl. 9 of Manual of Office Procedure, Vol.-2 (Technical) issued by the Directorate of IT on behalf of the CBDT, Department of Revenue, Government of India which prescribes the procedure for approval of assessment. It was submitted that this procedure would apply mutatis mutandis in approval of cases by the Jt. CIT also. 2.5 Reliance was also placed on a plethora of case laws, by the learned Authorized Representative, for the proposition that when s. 153D of the Act is violated and not adhered to, the assessment order is unsustainable. 3. The learned Authorized Repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation by the Jt. CIT. Further, the time of the fax granting approval is 6.56 a.m. on 31st March, 2013 which is prior to the office hours and, thus, it brings out a reasonable doubt that the approval was granted even before the letter requesting the approval was received in the office of the Jt. CIT. Further, the response received by the assessee in response to his application under Right to Information Act, 2005 also establishes the correctness of the claim of the assessee that the assessment records were not before the Jt. CIT when the approval was granted as the records were with the Range Office in Jodhpur whereas the approval was sent by fax on the morning of 31st March, 2013 from Udaipur. Thus, it is our considered opinion that the Jt. CIT had granted approval in a mechanical manner without examining the case records because the approval has been granted at 6.56 a.m. on 31st March, 2013 from Udaipur wherein it has already been mentioned that the assessment records were being returned whereas the draft assessment order along with the assessment records were handed over to the office of the Jt. CIT on 31st March, 2013 and as such it was physically impossible that all the case re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f previous approval of the Chief CIT or CIT in terms of said provision being an inbuilt protection against arbitrary or unjust exercise of power by the AO, casts a very heavy duty on the said high-ranking authority to see it that the approval envisaged in the section is not turned into an empty ritual. The Hon'ble apex Court held that the approval must be granted only on the basis of material available on record and the approval must reflect the application of mind to the facts of the case. 5.4 Coming to the facts of the case, it is apparent from the documents on record that the approval was given by the Jt. CIT in hasty manner without even going through the records as the records were in Jodhpur while the Jt. CIT was camping at Udaipur. The entire exercise of seeking and granting of approval in all the 22 cases was completed in one single day itself i.e., 31st March, 2013. Thus, it is apparent that the Jt. CIT did not have adequate time to apply his mind to the material on the basis of which the AO had made the draft assessment orders. Tribunal, Mumbai Bench and Tribunal, Allahabad Bench in their orders, as discussed in the preceding paragraphs, have laid down that the power ..... X X X X Extracts X X X X X X X X Extracts X X X X
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