TMI Blog2020 (7) TMI 430X X X X Extracts X X X X X X X X Extracts X X X X ..... being pronounced after ninety (90) days of hearing - COVID-19 pandemic and lockdown - HELD THAT:- Taking note of the extraordinary situation in the light of the COVID-19 pandemic and lockdown, the period of lockdown days need to be excluded. See case of DCIT vs. JSW Limited [ 2020 (5) TMI 359 - ITAT MUMBAI ] - ITA. No: 96 And 97/RJT/2015 - - - Dated:- 1-6-2020 - Shri Waseem Ahmed, Accountant Member And Shri Madhumita Roy, Judicial Member For the Appellant : Shri P.C. Yadav, Advocate And Dinesh Rupareliya CA For the Respondent : Shri M.N Maury, CIT/ D.R. ORDER PER BENCH, 1. These appeals filed by the Assessee are directed against the order of the Ld. CIT(A)-11, Ahmedabad dated 29.01.2015 pertaining to A.Y. 2011-12 ITA 97/Rjt/2015 Dinesh bhai 2. The assessee has raised the following grounds of appeal: 1. The learned Commissioner of Income Tax (Appeals) - 11, Ahmedabad erred in confirming addition of ₹ 35,67,200/- made by the assessing officer by way of unexplained cash found during search. 2. The learned Commissioner of Income Tax (Appeals) - 11, Ahmedabad erred in confirming the action of the assessing officer in treating proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e us is the search year, therefore the assessment was framed under section 143(3) of the Act. However, the provision of section 153D of the Act mandates that the approval of the joint Commissioner has to be obtained before passing the assessment order. The relevant provisions of section 153D of the Act reads as under: 153D. 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 7. The provisions specified in clause (b) of subsection (1) of section 153B has a direct bearing on the issue raised by the assessee in the additional ground of appeal. The relevant extract of the provisions of clause (b) of subsection (1) to section 153B reads as under: 153B. (1) Notwithstanding anything contained in section 153, the Assessing Officer shall make an order of assessment or reassessment,- (a) *********** (b) in respect of the assessment year relevant to the previous year in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Perusal of the above sequence of event would show that on the date when the assessment was framed i.e. 04.03.2013, there was no approval of the Additional CIT. Hence the order passed by the AO is non-est, void ab initio. It is submitted that provisions of section 153D are reproduced hereunder for ready reference. 153D. Prior approval necessary for assessment in cases of search or requisition.-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 section 153A or the assessment year referred to in clause (b) of subsection (1) of section 153B, except with the prior approval of the Joint Commissioner. Provided that nothing contained in this section shall apply where the assessment or reassessment order, as the case maybe, is required to be passed by the Assessing Officer with the prior approval of the Commissioner under sub-section (12) of section 144BA. 5. A perusal of the above provisions would show that the legislature has used the word shall in section 153-D, which means that the provisions of section 153D are mandatory. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing Benches of the ITAT has held as under:- a) M3M India Holding Vs DCIT reported in 198 TTJ 0921 (Del) :- In Para 13.1 Hon'ble Bench has observed as underlie /Add/. CIT, Chandigarh did not mention in the approval, if he has gone through the assessment record or whether assessment record have been produced before him before granting approval in the matter. The assesses fifed RTI application to the Revenue Department, copy of reply is filed at page 469 of the PB, in which it was explained that letter of the Assessing Officer, Faridabad dated 30th January 2014 was forwarded to the /Add/. CIT, Chandigarh on 30th January 2014. No reply was given to assessee as to when the letter of the assessing officer was received by /Add/. CIT, Chandigarh. It was also intimated that no such record is available in the .office of Assessing Officer regarding mode by which assessment record along with the letter of the assessing officer dated 30th January 2014 were forwarded to the /Add/. CIT, Chandigarh. No details/explanation were furnished as to on which date the assessment record was received by the /Add/. CIT, Chandigarh. The assessee, on inspection of the record, intimated the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment. d) The next case on the above issue that is approval must not be mechanical is the judgment of Cuttack Bench of the ITAT in the case of Dilip Construction;- ITA No- In this approval, we are unable to see any mention by the approving authority that he has perused the relevant assessment records and draff assessment orders proposed to be passed by the Assessing Officer. The Assessing Officer issued letter seeking approval on 17.11.2017 and approval has been granted on 23.11.2017 that after a passage of five days time from the approval order as reproduced hereinabove. From the above, it is very much clear that the approving authority i.e. the Id JCIT has not even bothered to mention that he has perused the relevant assessment records and draft assessment orders for which he has granted approval u/s.153D of the Act as per the mandatory requirements of the said provisions of the Act. In view of foregoing discussion, we are inclined to hold that the Id JCIT has granted approval under section 153D of the Act in a mechanical manner without application of mind to the relevant assessment records and draft assessment orders submitted before him by the AO for grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT, CC-1, Rajkot on 05.03.2013. 12. Thus, from the above it is the beyond doubt that the assessment has been framed by the AO under section 143(3) of the Act, without obtaining the valid approval from the joint Commissioner of income tax. Accordingly, such assessment is not valid under the provisions of law. In holding so we draw support and guidance from the judgment of Hon ble jurisdictional High Court in case of CIT vs. Sunrise Finlease reported in 252 Taxman 407 where it was held as under: 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 stand invalidated. The Tribunal was, therefore, wholly justified in holding that the impugned order of assessment would stand vitiated in view of non-co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time for pronouncing the order within 90 days of time by observing as under: 9. Let us in this light revert to the prevailing situation in the country. On 24th March, 2020, Hon ble Prime Minister of India took the bold step of imposing a nationwide lockdown, for 21 days, to prevent the spread of Covid 19 epidemic, and this lockdown was extended from time to time. As a matter of fact, even before this formal nationwide lockdown, the functioning of the Income Tax Appellate Tribunal at Mumbai was severely restricted on account of lockdown by the Maharashtra Government, and on account of strict enforcement of health advisories with a view of checking spread of Covid 19. The epidemic situation in Mumbai being grave, there was not much of a relaxation in subsequent lockdowns also. In any case, there was unprecedented disruption of judicial wok all over the country. As a matter of fact, it has been such an unprecedented situation, causing disruption in the functioning of judicial machinery, that Hon ble Supreme Court of India, in an unprecedented order in the history of India and vide order dated 6.5.2020 read with order dated 23.3.2020, extended the limitation to exclude not only thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to interpreted. The interpretation so assigned by us is not only in consonance with the letter and spirit of rule 34(5) but is also a pragmatic approach at a time when a disaster, notified under the Disaster Management Act 2005, is causing unprecedented disruption in the functioning of our justice delivery system. Undoubtedly, in the case of Otters Club Vs DIT [(2017) 392 ITR 244 (Bom)] , Hon ble Bombay High Court did not approve an order being passed by the Tribunal beyond a period of 90 days, but then in the present situation Hon ble Bombay High Court itself has, vide judgment dated 15th April 2020, held that directed while calculating the time for disposal of matters made time-bound by this Court, the period for which the order dated 26th March 2020 continues to operate shall be added and time shall stand extended accordingly . The extraordinary steps taken suo motu by Hon ble jurisdictional High Court and Hon ble Supreme Court also indicate that this period of lockdown cannot be treated as an ordinary period during which the normal time limits are to remain in force. In our considered view, even without the words ordinarily , in the light of the above analysis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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