TMI Blog2023 (4) TMI 487X X X X Extracts X X X X X X X X Extracts X X X X ..... P. PRAVEEN SIDHARTH, CIT DR ORDER PER SHAMIM YAHYA, ACCOUNTANT MEMBER : This appeal by the Revenue and cross objection by the assessee arise out of the order of ld. CIT (A) dated 25.06.2021 and pertains to AY 2015-16. 2. The grounds of appeal taken by the Revenue read as under :- 1. That the Ld. CIT (A) has erred on facts and in law in deleting the addition of Rs.5,40,25,000/- treated as unexplained money u/s 69A of the IT Act overlooking the facts and circumstances of the case which clearly suggest that the assessee was not having any cash out of sales consideration and whatever documents submitted were just self serving documents to which any third party verification was not possible. 2. That the Ld. CIT (A) has erred on facts and in law in deleting the addition of Rs.5,40,25,000/- overlooking the facts that in the just preceding years the assessee was not showing any substantial cash sales and to cover up the cash seized by the ED, he made a story that the said cash was out of cash sales of just 3 days. 3. The assessee has taken the following grounds in the cross objections :- 1. That in the given facts assessment order passed u/s 153A/143 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT in assessee s own case in ITA No.1016/Del/2021 for AY 2017-18 arising out of the same approval, as referred earlier, vide order dated 29.04.2022 has noted as under :- 8. The ld. Counsel for the Assessee, at the time of hearing confined his arguments to the ground challenging the validity of approval u/s 153D of the Act. He submitted that the Assessee filed an e-mail dated 23.08.2021 requesting for the certified copy of the order-sheet and approval taken u/s 153D from the appropriate authority before the order u/s 153A is passed. He submitted that in response to the same, the AO had supplied the approval received from Addl. CIT, which is as under:- 9. Referring to the approval given by the Addl. CIT, he submitted that the same has been granted on the very same day and the assessment records were never sent to the Addl. CIT, which is discernable from the said letter. The ld. counsel for the Assessee referring to the errors in the assessment order regarding the returned income, total assessed income and nature of addition submitted that the Addl. CIT in the instant case has given his approval in a mechanical manner and without verification of the assessment r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 153D of the Act, fully cover the issue of validity of impugned approval u/s 153D of the Act. Referring to the above decision, he submitted that since the approval given by the Addl. CIT u/s 153D of the I.T. Act,1961 in the instant case being not in accordance with law, therefore, the assessment order passed u/s 153A r.w.s. 143(3) of the Act stand vitiated since, the said order suffers from various infirmities. He accordingly submitted that the assessment order passed u/s 153A r.w.s. 143(3) of the Act should be quashed. 7. After due analysis, the ITAT concluded as under :- 17. From the analyzations made above, it emerges that the function to be performed by the Addl. CIT or CIT in granting previous approval u/s 153-D of the Act, requires to adopt judicial approach and to apply his mind independently and to conduct the enquiry himself on the entire facts, material, evidence and proposal put up to him for approval in the light of the material placed and relied upon by the Assessing Officer because where any act or function requires application of mind and judicial discretion or approach by any authority it partakes and assumes the character and status of judicial or at l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53A of the Act and also quashed the assessment. He further submitted that ITAT in the case of M/s. Tirupati Constwell Pvt. Ltd. in ITA No.4171/del/2014 for AY 2011-12 vide order dated 03.03.2023 has held that the 153D approval was not legal and quashed the assessment. The ITAT has held as under after reproducing the copy of approval :- 7. Going through the above approval which included the name of the assessee as well, the ITAT has concluded as under:- 16. Per contra, as we have noted above, it clearly discernable that the approval u/s. 153D of the Act was sought by the DCIT/Assessing Officer on 28.03.2013 from ACIT which was granted on the same date i.e.28.03.2013 by the ACIT to the Assessing Officer and said approval has been held by the Tribunal in the case of Subhash Dabas order dated 08.09.2021 (supra) and subsequent order dated 09.09.2021 (supra) for A.Y. 2009-10 and 2010-11 2011-12 (supra), as has been given without application of mind and thus the same is invalid bad in law and liable to be quashed and Tribunal has quashed the same. Therefore, the application of assesses under Rule 27 of the ITAT Rules is allowed by following the order of ITAT Delhi Bench in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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