TMI Blog2022 (8) TMI 1363X X X X Extracts X X X X X X X X Extracts X X X X ..... essee was filed u/s 139(1) which was processed u/s 143(1). Factually it is correct that the processing of return is only basis on same arithmetical adjustment and allowable deduction there is no such application of mind related to documents of the assessee. Respectful observation of this order which is stated that during processing of return u/s 143(1) there is no application of mind. In this factual interpretation the addition was made u/s 2(22)(e) related to deemed dividend such shares invested by the assessee to the company where he has the substantial interest. This particular investment is reflected in the books of account of the assessee. There is coherent relation in between company and assessee. The counsel of the assessee filed an additional ground which is under adjudication. CIT-DR vehemently opposed pointed out that assessee had never taken this additional ground anywhere before the any of the lower authorities. The acceptance of additional ground was not in question in Rahul Mittal, supra case. We accept the additional ground in light of judgment of Rahul Mittal, supra, respectfully considering the judgment of Hon ble Apex Court in the case of NTPC [ 1996 (12) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rst took the ITA No.618/Asr/2018 as lead case for the cases heard on 18.05.2022 and the ITA No. 86/Asr/2017, 41/Asr/2022 are the lead case for the cases heard on 23.06.2022. 2.1. Before us Mr. Ashray Sarna represented all the matters on behalf of the assessees. The appeal heard on 18.05.2022 was represented on behalf of revenue by Mr. Anupam Kant Garg, CIT DR and the appeal which were heard on 23.06.2022 was represented by Mr. Rahul Dhawan, CIT DR on behalf of the revenue. 3. The assessee took the following grounds before the ITAT which are extracted as follows: 1. That the order passed u/s 153A/143(3) of the Act by the Hon ble CIT(A) dated 10.09.2018 is against the law and facts of the case. 2. That having regard to the facts and circumstances of the case, Hon ble CIT(A) has erred in law and on facts in confirming the action of Ld. AO in assuming jurisdiction and framing the impugned assessment order u/s 153A/143(3) of the Act is bad in law and against the facts and circumstances of the case and is not sustainable on various legal and factual grounds. 3. That in any case and in any view of the matter, additions made in the impugned order are beyond jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law. The ld. Counsel challenged the approval u/s 153D which is in mechanical manner. So the entire approval U/s 153D of revenue is illegal and the assessments are liable to be quashed. 4.1. Related section 153C of the Act the ld. Counsel specifically mention that the order related section 153C is barred by limitation. The assessment order passed under section 153C/143(3) is time barred. 4.2. The assessee filed an appeal before the ld. CIT(A) with the following grounds which are reproduced hereunder: 1. That the order passed by the ld. Assessing Officer dated 22.03.2016, is against the law and facts of this case. 2. That the ld. Assessing Officer is erred in law in making addition amounting to Rs.15,52,000/- u/s 69 of the Act on account of investment in property without giving proper opportunity of being heard to assessee. 3. That assessee request to add or amend any ground of appeal before the appeal is finally heard and disposed off . 4.3. The ld. CIT(A) adjudicated the issue in favour of the revenue after calling remand report from the AO under Rule 46A of the IT Rule 1962. The appeal orders were passed accordingly. Being aggrieved the assessee fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant Para of the above approval letter merely says that Necessary statutory approval u/s 153D is given to pass the above assessment order as such. Assessment record in this case is returned herewith... which clearly proves that the Addl. CIT had routinely given approval to the AO to pass the order only on the basis of contents mentioned in the order only on the basis of contents mentioned in the draft assessment order without any application of mind and seized materials were not looked at because that was not available before him at the time of granting of approval to the draft assessment order and other enquiry and examination was never carried out . 5.3. The ld. Counsel for the assessee also relied on the order of Anurag Mittal vs. DCIT, ITA No. 135 136/Agr/2018 order dated 06.11.2019, Dilip Construction Pvt. Ltd. Vs. ACIT, ITA No.66 to 71 292/CTK/2018 order dated 29.11.2019 and Pr. CIT vs. Smt. Shrelekha Damani, High Court of Bombay (2019) 307 CTR (Bom) 218. 5.4. The ld. CIT DR Mr. Garg Vehemently argued and placed that all revenue authorities had discussed the case regularly before issuing the approval. All facts are under knowledge of Pr.CIT and the Additional CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) when the reasons on the basis of which sanction was sought for could not be assailed. Even an appellate authority is not required to give reasons when it agrees with the finding unless statute or rules so requires. We are supported in our view by the Judgment of the Apex Court in R.P. Bhatt v. Union of India, reported in AIR 1986 SC 1040. In R.P. Bhatt (supra) the Apex Court relied on judgment rendered by a Constitutional Bench in the case of Som Datt Datta v. Union of India reported in AIR 1969 SC 414 wherein their lordships held as follows. iii. Mazinda Singh Kanu vs. CIT (P H) ITA No. 421/2010 date of order 13.09.2010. iv. Baldevbhai Bhikhabhai Patel vs. DCIT (Guj) Spl Civil Application No.21092/2017. 5.6. We heard the rival submission and are adjudicating the issue after a thoughtful consideration of the submission of both the parties. The ld. Counsel relied of the judgments which are factually not similar with the assessee s issue. We respectfully observed the order of the Coordinate Bench, ITA No. 616 and 617/Asr/2018 date of order 23.12.2021 which is not under the factual matrix of the assessees s case. In the order of coordinate bench specifically me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 4. That order of Ld A.O is bad in law, as well as, on facts. 5. That appellant craves to add or amend any ground of appeal before the appeal is finally heard or disposed-off. 6. That the order may kindly be modified or another consequential relief be allowed. 6.1. The ld. Counsel for the assessee further filed an additional ground on dated 21.04.2022 which is reproduced as below: 1. That having regard to the facts and circumstances of the case, Hon ble CIT(A) has erred in law and on facts in confirming the action of Ld. AO in assuming jurisdiction and framing the impugned assessment order u/s 153A/143(3) of the Act is bad in law and against the facts and circumstances of the case and is not sustainable on various legal and factual grounds. 2. That in any case and in any view of the matter, additions made in the impugned order are beyond jurisdiction and illegal also for the reason that these could not have been made since no incriminating material has been found as a result of search warranting impugned addition. 3. That having regard to the facts and circumstances of the case, Hon ble CTT(A) has erred in law and on facts in confirming th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority during the processing of return u/s 143(1) of the Act. 6.6. Ld CIT-DR further argued referred the order of Hon ble Delhi High Court in case of CIT, Circle-3 vs. Kabul Chawla (2015) 61 taxman.com 412(Del):- 37. iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material. v. In absence of any incriminating material, the completed assessment can be reiterated, and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. 6.7. The complete assessment can be reiterated and abated assessment or reassessment can be made. The word assessed in section 153A is relatable to abated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited (1994) All ER 293 the House of Lords observed that `Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority. The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law. ......... In Halsbury's Laws of England (4th Edn.) Vol. 26: Judgment and Orders: Judicial Decisions as Authorities (pp. 297-98, para 578) per incuriam has been elucidated as under: A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of coordinate jurisdiction which covered the case before it, in which case it must decide which case to follow (Young v. Bristol Aeroplane Co. Ltd., 1944 KB 718 at 729 : (1944) 2 All ER 293 at 300. In Huddersfield Police Authority v. Watson, 1947 KB 842 : (1947) 2 All ER 193.); or when it has acted in ignorance of a House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those claims which were on the basis of the information available in the return, prima facie inadmissible, were to be rectified/allowed/disallowed. What was permissible was correction of errors apparent on the basis of the documents accompanying the return. The Assessing Officer had no authority to make adjustments or adjudicate upon any debatable issues. In other words, the Assessing Officer had no power to go behind the return, accounts or documents, either in allowing or in disallowing deductions, allowance or relief. 6.12. Respectful observation of this order which is stated that during processing of return u/s 143(1) there is no application of mind. In this factual interpretation the addition was made u/s 2(22)(e) related to deemed dividend such shares invested by the assessee to the company where he has the substantial interest. This particular investment is reflected in the books of account of the assessee. There is coherent relation in between company and assessee. The counsel of the assessee filed an additional ground which is under adjudication. The ld CIT-DR vehemently opposed pointed out that assessee had never taken this additional ground anywhere before the an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cantt. in ITA No. 583 ASR/2019, 584/ASR/2019; 585/ASR/2019 The appellant begs to move the following ground as additional ground:- 1. That having regard to the facts and circumstances of the case, Hon ble CIT(A) has erred in law and on facts in confirming the action of Ld. AO in passing the impugned assessment order u/s 143(3) r.w.s. 153C of the Act and that too without complying with the mandatory requirements and conditions u/s 153D as envisaged under the Income Tax Act, 1961. Since the above ground does not require fresh facts to be investigated and goes to the root of the matter, it is prayed that it may please be admitted in view of the Hon ble Supreme Court decision in the case of NTPC Limited 229 ITR 383. 8.2 The appeal of the assessee was filed with delay of 3 days. The ld Counsel prayed for condonation of delay. The delay is condoned as the number of days are negligible. 9. During the hearing with the additional ground, the ld. Counsel for the assessee also filed the approval u/s 153D bearing no. F.No.JCIT/CR/Jal/2018-19/993 dated 26.12.2018: 10. The ld. Counsel vehemently argued and mentioned that the date of order was complet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitiated on 12.10.2017 by issuing notices to the assessee. The point is that the order was passed barred by the limitation. As per section 153C r.w.s. 153D of the Act. 10.1. The ld. Counsel also referred the judgment of Hon ble Supreme Court in case of Super Malls P. Ltd. Vs. PCIT-8, New Delhi 115 taxman.com105 (SC). 10.2. The ld. CIT DR Mr. Rahul Dhawan further argued that limitation will start with the AO received seized material section 153C is initiated on 12.10.2017. He also referred the order of the ld. CIT(A) in page no. 8, as mentioned above. After the satisfaction of the AO the 153C will be issued. He respectfully argued that the order of Hon ble Supreme Court in Super Malls P. Ltd. (supra) is not at all applicable in this issue. So the additional ground of the assessee should be rejected. 11. We heard the rival submission relied on the documents available on the record. The 153C will be applicable after the satisfaction noted by the ld. AO in relation to the related party. The notice U/s 153C was initiated on 12/10/2017 the order of assessment had completed on dated 27/12/2018. In this point, the assessment not at all time barred. In the case of Super Malls (sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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