TMI Blog2019 (7) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... This is not the mandate of the Act. It has also been laid down that whenever any statutory obligation is cast upon any authority, such authority is legally required to discharge the obligation by application of mind. The approval has to be statutory nature after due application of mind, it should be neither technical nor proforma approval which is envisaged u/s 153D As relying on SMT. SHREELEKHA DAMANI [ 2018 (11) TMI 1563 - BOMBAY HIGH COURT] and M/S. M3M INDIA HOLDINGS (FORMERLY M/S. KRISHNA FLEXI SOLUTION) VERSUS THE DCIT, CENTRAL CIRCLE-II, FARIDABAD. [ 2019 (3) TMI 895 - ITAT DELHI] assessments completed by the DCIT do not stand in the eyes of law. - Decided in favour of assessee. - ITA No. 2122/Del/2018, ITA No. 2163/Del/2018, ITA No. 2123/Del/2018, ITA No. 2162/Del/2018, ITA No. 2124/Del/2018, ITA No. 2491/Del/2018 - - - Dated:- 4-7-2019 - Sh. H. S. Sidhu, Judicial Member And Dr. B. R. R. Kumar, Accountant Member For the Assessee : Sh. Kapil Goyal, Adv. For the Revenue : Sh. S. S. Rana, CIT DR ORDER PER B. R. R. KUMAR, ACCOUNTANT MEMBER: The assessee has raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d vide DCIT Central Circle letter dated 26/04/2019) and ergo assessment framed as confirmed by Ld CIT-A deserves to be quashed and assessment may be declared as nullity. 6. To support the admission of their legal Jurisdictional ground, the Ld.AR relied on following case laws: Singhad Technical Society 397 ITR 344 (SC) Fast Booking (I) Pvt. Ltd., 378 ITR 693 (Del.) Silver Line 383 ITR 455 (Del.) M/s VMT Spinning Co. Ltd., 389 ITR 326 (P H) Jolly Fantasy World Ltd 373 ITR 530 (Guj.) CIT Vs. Lalitkumar Bardia (2017) 84 taxmann.com 213 (Bom) 7. The ld. DR vehemently objected to the admission of the additional evidences and argued that no legal question is involved in the grounds taken by the assessee at this juncture. 8. We have heard the arguments and find that the issue is a purely legal issue pertaining to approval of assessment u/s 153D of the Act and hence being admitted. We rely on the judgment of the Hon ble Supreme Court in the case of NTPC v. CIT(1998) 229 ITR 383 SC wherein it has explained that the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in accordance with the provisions of the Act. 11. We have heard the arguments of both the parties and gone through the record and documents filed before us. For ready reference the entire part of the letter of approval dated 30.12.2016 is reproduced as under: Subject: Prior approval u/s 153 D in the cases of Cloud-9 Sethi Groupregarding. Please refer to your office letter F. No. DCIT/ CC/ GZB/ S S/153D 2016- 17/2904, 2908 2911 dated 28-12-2016 30-12-2016 on the above mentioned subject. 2. In the following cases of Cloud-9 Sethi Group, prior approval u/s 153D of the IT Act, 1961 accorded for passing assessment orders in respect of the assesses for the assessment years as mentioned below: S. No. Name of the assessee PAN A.Yrs. 1 M/s Risabh Buildcon Pvt. Ltd. AACCR7502F 2009-10 to 2015-16 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AACCR9776R 2009-iO to 2015-16 15 Srnt. Magan Jain AIMPJ8085G 2009-10 to 2015-16 16 M/s Angel Buildcon Pvt. Ltd. AAFCAI968H 2009-10 to 2015-16 2. A technical approval is accorded to pass assessment orders in the above cases on the basis of the drafts assessment orders submitted for the assessment years in reference years. You are directed to ensure taking into account the seized documents/papers and comments in the appraisal report pertaining to AYs. The fact of initiation of penalty proceedings, wherever, applicable, must also be incorporated in last para of the order. The initiation of correct penalty provisions of I.T. Act u/s 271 (1)(c)/ 271AAB, as per facts of the ease, must be ensured. 3. This office reference no of approving the draft orders shall invariably be quoted in the assessment orders to be passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after receiving of the approval which makes it an invalid, qualified, uncertain approval. This is not the mandate of the Act. It has also been laid down that whenever any statutory obligation is cast upon any authority, such authority is legally required to discharge the obligation by application of mind. The approval has to be statutory nature after due application of mind, it should be neither technical nor proforma approval which is envisaged u/s 153D of the Act. Reliance is placed the judgment of Coordinate Bench in the case of M3M India Holdings (ITA 2691/2018). And the judgment of Hon ble High Court of Bombay in the case of Pr CIT vs. Smt. Shreelekha Damani [ ITA no 668 of 2016 Dated: 27th November, 2018 ] is as under: 1. This appeal is filed by the Revenue challenging the judgment of Income Tax Appellate Tribunal ( the Tribunal for short) dated 19th August, 2015. 2. Following question was argued before us for our consideration:- Whether on the facts and circumstances of the case and in law, the Tribunal was justified in holding that there was no 'application of mind' on the part of the Authority granting appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010. However, this draft order has been submitted on 31.12.2010. Hence there is no much time left to analise the issue of draft order on merit. Therefore, the draft order is being approved as it is submitted. Approval to the above said draft order is granted u/s 153D of the I.T. Act, 1961. 7. In plain terms, the Additional CIT recorded that the draft order for approval under Section 153D of the Act was submitted only on 31st 3 of 4 Uday S. Jagtap 668-16-ITXA-15=.doc December, 2010. Hence, there was not enough time left to analyze the issues of draft order on merit. Therefore, the order was approved as it was submitted. Clearly, therefore, the Additional CIT for want of time could not examine the issues arising out of the draft order. His action of granting the approval was thus, a mere mechanical exercise accepting the draft order as it is without any independent application of mind on his part. The Tribunal is, therefore, perfectly justified in coming to the conclusion that the approval was invalid in eye of law. We are conscious that the statute does not provide for any format in which the approval must be granted or the approval granted mu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
