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TMI Blog2024 (9) TMI 1663X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of hearing that all these cases involve sec.153A assessment(s) framed by the department in furtherance to it's sec.132 search action dated 27.09.2013 in assessee's and related parties. Learned counsel submits in this factual backdrop that the assessee's first and foremost plea challenges validity of sec.153D approval(s) herein going to root of the matter and therefore, the same is taken-up for adjudication being a fundamental issue. 3. Learned CIT-DR submits that the department has filed it's paper book/written submissions wherein we find at page-62 that the learned JCIT, Central Range, herein had granted only a conditional approval dated 18.03.2016 to the Assessing Officer as under : "Sub: Approval of draft orders in the case of Shri Santosh 5 Mukta, PAN AJRPM7166R for the Assessment Years 2008-09 to 2014-15-regarding Ref: Your letter dated 17.02.16 -------- Please refer to the above. 2. Approval u/s 153D of the LT. Act, is granted subject to the compliance of following - a) The order sheet is to be completed properly. b) All submissions made by the assessee are to be placed in the respective folders for the respective assessment years. c) A deta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year instead of treating it as a mere mechanical exercise. This tribunal's recent coordinate bench's order in SMW Ispat (P.) Ltd., vs. ACIT [2014] 112 ITR (Trib.) 224 (Pune) has rejected the Revenue's arguments whilst concluding that a conditional approval than an absolute one is not sustainable in law and therefore, the corresponding assessment(s) framed u/sec.153A of the Act is null and void as under : 17. We find the department of Revenue filed SLP against the decision of Hon‟ble High Court of Orissa in the case of M/s. Serajuddin & Co. (supra) before the Hon‟ble Supreme Court. The Hon‟ble Supreme Court was pleased to dismiss the SLP (c) Diary No. 44989/2023. The relevant decision is reproduced as under : "SPECIAL LEAVE PETITION (CIVIL) Diary No(s). 44989/2023 (Arising out of impugned final judgment and order dated 15-03- 2023 in ITA No. 43/2022 passed by the High Court Of Orissa at Cuttack) ACIT, CIRCLE 1 (2) Petitioner(s) VERSUS M/S SERAJUDDIN AND CO. Respondent(s) (FOR ADMISSION and I.R. and IA No.232700/2023-CONDONATION OF DELAY IN FILING and IA No.232701/2023-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT) Date: 28-11-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the appraisal report, the verifications carried out on the issue and the final finding if the AO has decided not to make additions on that issue. d) If the A.O. has made references on any issue in accordance with the instructions of the CBDT issued from F. No. 286/161/2006/ IT Inv.lI) dated22.12.2D06. The replies received should be kept on record. A noting on all such issues should be made in the office note. e) All the office notes (not for assessee) along with the copies of the final assessment orders issued be forwarded to this office for records. f) All references contemplated u/s.153C of the L T. Act promptly be forwarded to the Assessing Officer having jurisdiction over such other person along with me respective books of accounts, documents or assets seized or requisitioned under intimation to this office. g) Wherever, penalty proceedings u/s271(1)(c) are initiated, proper explanation below that section shall be invoked. In case penalties initiated u/s. 271AAA, the same should be invoked under the respective issue itself as well as at the bottom of the order. h) The Computation interest u/s 234A, 234B, 234C will be a part of the assessment order itself. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. Further, the provisions u/s. 153D of the Act requires prior approval before passing final assessment order and there is no provision to alter, change, modify, adjust, amend or rework the order once the approval has been granted. In the present case as discussed above, the approval was granted subjected to compliance of conditions therein. 21. In the light of the above, we note that the AO vide paras 6.1, 6.2, 6.3 and 7 of assessment order observed that the important findings noted during the course of search u/s. 132 and the post search inquiries regarding unsecured loans relating to 49 assessments. On perusal of the letter dated 18-03-2016 vide No.ABD/ACIT/CC-1/2015-16/1702 issued by the AO requesting approval from JCIT shows that the AO requested the approval u/s. 153D of the Act in 49 assessments involving A.Ys. 2008-09 to 2014-15. The said request letter shows no proof of number of evidences, documents, statements of various persons were annexed in support of draft assessment orders. In this regard, the Hon‟ble High Court of Allahabad in the case of Sapna Gupta reported in (2023) 147 taxmann.com 288 (Allahabad) held "it is humanly impossible to go through the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of non-application of mind. 22. The ld. AR placed on record the decision of Hon‟ble High Court of Madhya Pradesh in the case of S. Goyanka Lime & Chemicals Ltd. reported in (2015) 56 taxmann.com 390 (Madhya Pradesh) which his at Page No. 160 of case laws paper book. On a careful examination of the same, we note that in pursuance of search, the assessments processed u/s. 143(1) of the Act were reopened by issuing a notice u/s. 148 of the Act on the basis of certain reasons recorded. The assessee objected to the same before the Assessing Officer, which was rejected. The Assessing Officer completed the assessment u/s. 143(3) r.w.s. 147 of the Act. The CIT(A) quashed the said reassessment by holding the action of JCIT in according sanction was without application of mind which was done in a mechanical manner. The ITAT upheld the order of CIT(A). The Hon‟ble High Court of Madhya Pradesh dismissed the appeal of Revenue by observing no question of law involved warranting reconsideration. The relevant extract of the said decision as under for ready reference : "7. We have considered the rival contentions and we find that while according sanction, the Joint Commissioner, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh in the case of S. Goyanka Lime & Chemicals Ltd. (supra) which was confirmed by the Hon‟ble Supreme Court is applicable to the facts on hand, therefore, the approval granted by the JCIT on 21-03-2016 is invalid, consequently, the final assessment order dated 30-03-2016 passed u/s. 143(3) r.w.s. 153A of the Act is liable to be quashed. 24. Further, the Hon‟ble Supreme Court in the case of Sahara India (Firm) reported in 300 ITR 403 (SC) at page No. 142 of the case laws paper book, while discussing the requirement of prior approval, opined that the requirement of previous approval of the Chief Commissioner or the Commissioner in terms of the said provision being an inbuilt protection against any arbitrary or unjust exercise of power by the Assessing Officer, casts a very heavy duty on the said high ranking authority to see to it that the requirement of the previous approval, envisaged in the Section is not turned into an empty ritual. The Hon‟ble Supreme Court was pleased to hold that the approval must be granted only on the basis of material available on record and the approval must reflect the application of mind to the facts of the case. 25. In view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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