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TMI Blog2025 (1) TMI 651X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned assessing officer by disallowing the claim of Long Term Capital Gain of listed equity shares of Rs. 29,91,534/- (exempt u/s 10 (38), of the Income Tax Act, 1961 as taxable and thus made an addition of Rs. 29,91,534/- as income the assessee u/s 69 of the Income Tax Act, 1961 being investment of un-accounted & unexplained without any basis and without brining any valuable evidence/material on record. 3. That the learned Commissioner of Income Tax (Appeals) has erred in upholding the addition of Rs. 1,49,576/- as alleged commission paid @5% on the said long term capital gain under section 69C of the Income Tax Act. 4. The above grounds of appeal are without prejudice to each other." 4. At the outset of the hearing, ld. AR for the assessee submitted that that assessee has filed additional grounds of appeal under Rule 11 of the Income Tax (Appellate Tribunal) Rules and it is purely legal issue and the same is reproduced below :- "1. That having regard to the facts and circumstances of the case, impugned assessment order dated 31.12.2019 as well as the impugned additions/disallowances made therein are illegal, bad in law as the same has been made by Ld. AO and that too w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve also deleted the impugned additions made therein and too without providing the opportunity of cross examination of the alleged deponents and Ld. CITCA) erred in denying the opportunity of cross examination at page 55 para 5.7.4 of the impugned CIT(A) order and that too without any basis and without appreciating the facts and circumstances of the case. 8. That in any case and in any view of the matter, the impugned assessment order passed by Ld. AO is illegal and bad in law thus the assessment order needs to be quashed. 5. Since the above grounds of appeal are purely legal, do not require fresh facts to be investigated and go to the root of the matter, ld. AR of the assessee prayed that the same may be admitted in view of the following judgements: * CIT vs. Sinhgad Technical Education Society, (2017) 397 ITR 0344 (SC). * NTPC Ltd. vs. CIT, (1998) 229 ITR 0383 (SC). * VMT Spinning Co. Ltd. vs. CIT &Anr., (2016) 389 ITR 0326 (P&H). * CIT vs. Sam Global Securities, (2014) 360 ITR 0682 (Del.). * Siksha vs. CIT, (2011) 336 ITR 0112 (Orissa). * Inventors Industrial Corporation Ltd. vs. CIT, (1992) 194 ITR 0548 (Born.). 6. On the other hand, ld. DR for the Revenue has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ently, reported in 307 CTR 218 affirms the plea of the Assessee, wherein the Hon'ble Bombay High Court held as under:- "1. This appeal is filed by the Revenue challenging the judgment of Income Tax Appellate Tribunal ("the Tribunal" for short) dated 19th August, 2015. 2. Following question was argued before us for our consideration: "Whether on the facts and circumstances of the case and in law, the Tribunal was justified in holding that there was no 'application of mind' on the part of the Authority granting approval? 3. Brief facts are that the Tribunal by the impugned judgment set aside the order of the Assessing Officer passed under Section 153A of the Income Tax Act, 1961 ("the Act" for short) for Assessment Year 2007- 08. This was on the ground that the mandatory statutory requirement of obtaining an approval of the concerned authority as flowing from Section 153D of the Act, before passing the order of assessment, was not complied with. 4. This was not a case where no approval was granted at all. However, the Tribunal was of the opinion that the approval granted by the Additional Commissioner of Income Tax was without application of mind and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his part. The Tribunal is, therefore, perfectly justified in coming to the conclusion that the approval was invalid in eye of law. We are conscious that the statute does not provide for any format in which the approval must be granted or the approval granted must be recorded. Nevertheless, when the Additional CIT while granting the approval recorded that he did not have enough time to analyze the issues arising out of the draft order, clearly this was a case in which the higher Authority had granted the approval without consideration of relevant issues. Question of validity of the approval goes to the root of the matter and could have been raised at any time. In the result, no question of law arises. 8. Accordingly, the Tax Appeal is dismissed." 16. In the case of ACIT, Circle-1 (2) Vs. Serajuddin and Co. the Hon'ble Supreme Court in SLP (Civil) Dairy No. 44989/2023 vide order dated 28/11/2023, dismissed the Appeal filed by the Department of Revenue against the order dated 15/03/2023 in ITA No. 43/2022 passed by the Hon'ble High Court of Orissa at Cuttack, wherein the Hon'ble High Court had quashed the Assessment Order on the ground of inadequacy in procedure adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs instead of approval under Section 153B for each assessment year separately de horse the rules. The said approval is found to have been given in a mechanical and routine manner. We find that the order issuing authority has not discharged its statutory duties cast upon him even by assigning cogent reasons in respect of the issues involved in the matter. Thus granting approval in the absence of due application of independent mind to the material on record for each assessment year in respect of the assessee's case separately vitiates the entire proceedings; the same is found to be arbitrary and erroneous and therefore, liable to be quashed. We are also inspired by the ratio laid down in the Judgment narrated hereinabove passed by the Hon'ble Jurisdictional High Court and respectfully relying upon the same with the above observation, we quash the entire proceeding initiated under Section 153C r.w.s 153A of the Act in the absence of a valid approval granted by the Learned Additional Commissioner of Income Tax, Central Range-7, New Delhi. 12. In the result, appeal of the assessee is allowed." 13. We further find that Hon'ble jurisdictional High Court in the case of PCIT vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority like ld. Addl. CIT to grant judicious approval u/s 153D of the Act for 43 cases on a single day is the subject matter of dispute before us. Further, section 153D provides that approval has to be granted for each of the assessment year whereas, in the instant case, the ld. Addl. CIT has granted a single approval for all assessment years put together." 17. Notably, the order of approval dated 30.12.2020 which was produced before us by the learned counsel for the assessee clearly signifies that a single approval has been granted for AYs 2011-12 to 2017-18 in the case of the assessee. The said order also fails to make any mention of the fact that the draft assessment orders were perused at all, much less perusal of the same with an independent application of mind. Also, we cannot lose sight of the fact that in the instant case, the concerned authority has granted approval for 43 cases in a single day which is evident from the findings of the ITAT, succinctly encapsulated in the order extracted above. 18. Therefore, under the facts of the present case, considering the foregoing discussion and the enunciation of law settled through This is a digitally signed order. The au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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