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TMI Blog2019 (12) TMI 1446X X X X Extracts X X X X X X X X Extracts X X X X ..... n 70/Ran/19 Anup Kumar Chatterjee 2005-06 30.07.19 30.12.11 153A r.w.s. 143(3) of the Income Tax Act (in short 'the Act') 71/Ran/19 -Do- 2006-07 -Do- -Do- -Do- 72/Ran/19 -Do- 2007-08 -Do- -Do- -Do- 73/Ran/19 -Do- 2008-09 -Do- -Do- -Do- 74/Ran/19 -Do- 2010-11 -Do- -Do- 143(3) of the Act 2. At the beginning of the hearing, it was stated on behalf of the assessee that all the five matters captioned above are inter-connected and involves common issue. Accordingly, all matters were heard together for adjudication purposes. 3. We shall take assessee's appeal in IT(SS)A No. 70/Ran/2019 concerning AY 2005-06 as a lead case for adjudication. IT(SS)A No. 70/Ran/2019 - AY - 2005-06 4. Grounds of appeal raised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.153A/144 r.w.s. 254 of the Act dated 27.10.2016 is subject matter of challenge. It was pointed out by the learned AR for the assessee that in the second round of proceedings before the AO pursuant to directions of the ITAT for fresh adjudication after giving proper opportunity to the assessee, the AO has passed the assessment order without taking approval mandated under s.153D of the Act. It was contended that lack of approval under s.153D of the Act would invalidate the assessment order which is not curable defect as held by the co-ordinate bench of Tribunal in Ashok Kumar Agarwal vs. DCIT ITA No. 269/Agr/2017 order dated 18th September, 2019 and D. S. India Jewelmart P Ltd. vs. ACIT ITA Nos. 260 to 267/Agr/2017 order dated 18.09.2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of each assessment year referred to in sec.153A. The whole purpose and legislative intention behind this safeguard is to see that the AO being a lower authority, should not pass any high pitched order so as to put the assesses to unnecessary hardship. Further, sec.153D also provides that no approval of Joint commissioner is required, where the assessment order is required to be passed with prior approval of commissioner u/s. 144BA. The purpose and import of excluding the approval of Joint commissioner u/s.144BA is that when a superior authority is involved in directing and guiding the AO in framing the assessment order, the approval of intermediate authority is not required. In the instant case the order is passed u/s.254 under the dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st round of assessment. We therefore are of the opinion that the CIT(A) was incorrect in rejecting the appeal of the assessee taking shelter of Section 144BA of the Act. It is trite that where the AO is required to do a particular act in a particular manner, he cannot bypass the mandate of law and adopt a different approach. The supervisory power mandated under s.153D of the Act in case of search assessment could not be bypassed. The co-ordinate bench in D. S. India Jewelmart P Ltd. (supra) has taken note of various judicial decisions and arrived at conclusion that lack of approval under s.153D of the Act could invalidate the assessment order. The noncompliance of Section 153D of the Act is a substantive defect and thus not curable. Such ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he income declared in the return. The revenue preferred SLP before Hon'ble Supreme Court against the said judgment of the Full Bench of Patna High Court, which was dismissed by the Hon'ble Supreme Court on merits vide order dated 01.08.2000 by saying that there is no merit in the appeal. 24. Learned counsel for the revenue could not dispute this legal position. Therefore, so far as question of law involved in this appeal that whether the interest could have been levied against the assessed income of the assessee under Sections 234A and 234B is concerned, in view of the Full Bench judgment of Ranchi Bench of Patna High Court delivered in the case of Smt. Tej. Kumari, the revenue can levy the interest only on the total income declar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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