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Facts
A search and seizure operation under Section 132 of the Income Tax Act was conducted at the assessee's premises on 16.10.2019. Subsequently, a notice under Section 153A was issued for re-opening cases beyond six years, leading to an assessment order that was upheld by the Ld. CIT(A), against which the assessee filed multiple appeals to the Tribunal. The primary contention of the assessee was the mechanical approval granted under Section 153D for various assessment years.
Held
The Tribunal held that the approval granted by the Additional CIT under Section 153D was mechanical and lacked proper application of mind, as it was a single omnibus approval for multiple assessment years. Citing High Court precedents, the Tribunal reiterated that approval under Section 153D must be granted independently for each assessment year and cannot be a mere ritualistic formality. Consequently, the assessment orders based on such invalid approval were vitiated and quashed.
Key Issues
Whether the assessment orders passed under Section 153A are valid when the mandatory approval under Section 153D was granted mechanically for multiple assessment years through a single omnibus order, without independent application of mind for each assessment year and each assessee.
Sections Cited
250, 132, 153A, 143(2), 142(1), 153D, 69, 143(3), 158BG, 119
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Income Tax Appellate Tribunal, DELHI “A” BENCH: NEW DELHI
Before: SHRI YOGESH KUMAR US & SHRI MANISH AGARWAL
to 62/Del/2025 [Assessment Years : 2011-12 to 2018-19 & 2020-21] Shri Jitendra Kumar, vs DCIT, 14/7, Mathura Road, Central Circle-1, Sector-7, Faridabad, New CGO Complex, Haryana-121006. S.O.-Faridabad, PAN-ASCPK6091M Haryana-121001. APPELLANT RESPONDENT Appellant by Shri S S Nagar, CA Respondent by Shri Sanjeev Kumar Yadav, CIT DR Date of Hearing 16.07.2025 Date of Pronouncement 23.07.2025 ORDER
PER MANISH AGARWAL, AM :
The captioned appeals are filed by the assessee against the respective orders passed by Ld. Commissioner of Income Tax (A)-3, Gurgaon [“Ld. CIT(A)”] passed u/s 250 of the Income Tax Act, 1961 [“the Act”] arising from the respective assessment orders tabulated as under:- Sr. Order Assessment Section under which Nos. dated Order dated Assessment orders passed 54/Del/2025 1. 12.12.2024 29.09.2021 Section 153A of the Income [AY 2011-12] Tax Act, 1961. 2 55/Del/2025 29.09.2021 -do- -do- [AY 2012-13] 3. 56/Del/2025 29.09.2021 -do- Section 153A r.w.s. 144 of [AY 2013-14] the Income Tax Act, 1961. 57/Del/2025 4. -do- -do- -do- [AY 2014-15] 58/Del/2025 5. 30.09.2021 -do- -do- [AY 2015-16] 59/Del/2025 6. -do- 29.09.2021 -do- [AY 2016-17] 7. 60/Del/2025 -do- -do- -do- [AY 2017-18]
61/Del/2025 8. -do- -do- -do- [AY 2018-19] 9. 62/Del/2025 -do- -do- Section 143(3) of the Act [AY 2020-21]
At the time of hearing, it was stated that the issues involved for Assessment Years 2011-12 to 2018-19 & 2020-21 respectively, are common, interlinked and arising from the search action on the assessee and other persons. Hence, all these cases have been heard together and adjudicated by this common order.
First we take appeal of the assessee in for Assessment Year 2011-12. [Assessment Year 2011-12] 4. Brief facts of the case are that a search and seizure operation u/s 132 of the Act was conducted on 16.10.2019 at the residential and office premises of various persons including the assessee, Shri Jitender Adhana. A notice dated 15.09.2021 u/s 153A of the Act was issued after recording satisfaction note for re-opening of case u/s 153A beyond six years and served upon the assessee requiring him to file his return of income for the year under consideration. In response to the said notice, the assessee vide letter dated 25.09.2021 submitted that the return of income already filed on 25.09.2021 be treated as return in response to notice u/s 153A wherein total income of INR 5,03,400/- was declared by the assessee. Thereafter, notice u/s 143(2) was issued and served on 25.09.2021 and various other notices u/s 142(1) of the Act alongwith questionnaire were issued and served upon the assessee from time to time requiring him to submit his reply/explanation by 20.09.2021. After examining the requisite details/information filed by the assessee, assessment was completed at a total income of INR 25,34,800/-. Against such order, assessee preferred appeal before Ld. CIT(A) who after considering the submissions, dismissed the appeal of the assessee.
5. Aggrieved by the order of Ld. CIT(A), the assessee preferred appeal before the Tribunal wherein the following grounds of appeal are taken: 1.0 “That, on the facts and in the circumstances of the case, the disallowance, imposition of tax, and interest with reference thereto, as well as the quantification of taxable income and tax liability, are unjustified, erroneous, and unsustainable, and it is prayed that necessary directions be issued to the Learned Assessing Officer (Ld. AO) to grant appropriate relief in accordance with the law. 2.0 That, on the facts and in the circumstances of the case, the Ld. CIT- (A) has erred in upholding the order of Ld. AO under Section 153A of the Income Tax Act without considering the fact that no incriminating material was found during the search proceedings. 3.0 That on the facts and in the circumstances of the case, the Ld. CIT- (A) has erred in upholding the order of L4. A.O without considering the fact that the additions are made on the basis of merely loose paper entry. 4.0 That on the facts and circumstances of the case, the Ld. CIT-(A) has erred in stating that the approval u/s 153D has been duly accorded by the Ld. Addl. CIT. 4.1 That on the facts and circumstances of the case, the approval granted u/s 153D of the Act was mechanical and without application of mind. 4.2 That on the facts and circumstances of the case, the consolidated approval granted u/s 153D of the Act is illegal as single approval has been granted for all the relevant years. 5.0 That on the facts and circumstances of the case, the Ld. CIT-(A) has erred in upholding the addition made by the Ld. AO u/s 69 of the Act on account of unexplained cash deposited in the bank account without considering the facts of the case. 6.0 Without prejudice to the ground no. 5.0, the Ld. CIT-(A) has erred in upholding the addition made', 'the Ed. AO without considering the fact that the bank account is not books of account and hence addition made on account of deposit in bank account is illegal and void-ab-initio. 7.0 That the appellant craves leave, to add, to amend, modify, rescind, supplement, or alter any of the Grounds stated here-in-above, either before or at the time of hearing of this appeal.”
Before us the ld.AR of the assessee stated that Ground No. 4 6. be taken first wherein the validity of assessment order with regard to the approval granted u/s 153D is challenged.
7. Before us, Ld.AR for the assessee submitted that in the present case, approval was granted by Ld. Addl. CIT, Central Range, Gurugram vide letter dt. 27.09.2021 which is mechanical approval. Ld. AR further submits that Ld. Addl. CIT granted approval for AYrs. 2011-12 to 2013-14 and 2014-15 to 2020-21 in terms of two separate letters bearing No. Addl. CIT(CR)/GGM/2021-22/702 & Addl. CIT(CR)/GGM/2021-22/703 both dated 27.09.2021. He submits that from the perusal of the same it could be seen that the approval granted by the ld. Addl. CIT was mechanical approval as no separate approval for each Assessment Year was given rather approval was given by a single order for various assessment years. The approvals so granted are as under:
Ld.AR further submits that from the perusal of the approval, it could be seen that Addl. CIT while granting the approval has not stated whether he has gone through the seized material, assessment records including the replies filed by the assessee with reference to the additions/ disallowance proposed in the drafts assessment order. Rather the Addl. CIT referred the action of the AO in making enquiries and considering all the material and providing sufficient opportunity to the assessee. Nowhere in the approval letter it is stated whether any discussions were carried between the AO and the Addl. CIT or he has gone through the seized material. As per ld. AR, the Addl. CIT has not verified the material, nor any reference was made in the approval letter about the material supplied to him by the AO alongwith the draft assessment orders for his consideration and thus it is a mechanical approval given. He further states that the Addl. CIT was at Gurugram and the assessing officer was stationed at Faridabad and it is not possible that Addl. CIT had occasion to go through the assessment records and seized material pertaining to the issues on which additions were proposed in draft assessment order. Ld. AR also referred certain lapses and omissions that could have been removed/ answered, had the ld. Addl. CIT referred to or gone through the seized material and the assessment records as relied upon in the draft assessment order. Some of the instances are pointed out by the ld. AR in the written submission filed which are as under:
Ld. AR finally submits that common approval is given for various Assessment Years which is contrary to the provisions of section 153D of the Act and therefore, he prayed that there was no proper application of mind before granting the approval by ld. Addl. CIT and thus assessment order so passed deserved to be held as null and void. He placed reliance on the following judgements:- [i] M/s Tavleen Resorts & Spa Pvt. Ltd. Vs. DCIT in [ii] Smt. Peu Veer Vs. DCIT in & 3380 t0 3381/Del/2024
[ii] Mainee Steel Works Pvt. Ltd. Vs. DCIT in to 3377/Del/2024; [iii] Divjot Singh Mainee Vs. DCIT in 3379/Del/2024 [iv] Sohan Lal Single (AOP) Vs. DCIT in ITA No. 711- 712/Del/2023 and 713-714/Del/2024
On the other hand, Ld. CIT DR for the Revenue filed a written submission in support of this issue. The relevant contents of the written submission are reproduced as under:- “May it please be honour to the Hon'ble Bench: 1. The Revenue respectfully submits this response to the ground raised
by the Appellant that the approval granted by the competent authority under Section 153D of the Income Tax Act, 1961 (the "Act"), is vitiated for having been accorded in a mechanical manner, without application of mind.
2. Kind reference is drawn on Statutory Scheme and Purpose of Section 153D, which reads as: "No order of assessment or reassessment shall be passed by an Assessing Officer below the rank of Joint Commissioner in respect of each assessment year referred to in sub-sections (1), (1A), (1B) and (1C) of section 153A and the assessment year referred to in sub- section (1) of section 153B, except with the prior approval of the Joint Commissioner." Purpose: This provision creates an inbuilt system of checks and balances by mandating an extra layer of scrutiny in search assessment proceedings.
3. Factual Matrix as applicable to the instant case is as under: * The Assessing Officer, having completed the draft assessment, duly forwarded the entire assessment records, materials, and draft order to the Joint Commissioner/Additional Commissioner for approval u/s 153D. * The Joint Commissioner, having perused all materials, accorded approval for the order, as is evident from the official records.
4. Your honour, reliance is placed on the following Judicial Pronouncements where the facts were also similar to the instant case and it was held that no Infirmity in approval deemed to be absent without concrete proof of Mechanical Exercise, in the case of - * PCIT v. Shreelekha Banerjee (2022) 138 taxmann.com 90 (Del HC), The Hon'ble Delhi High Court held: "... Provisions of Section 153D only contemplate the prior approval of the Joint Commissioner/Commissioner. In the absence of any positive evidence to prove that such approval was not genuine or was mechanically granted, the assessment cannot be vitiated merely by a bald assertion." * Union of India v. Dhiraj Sinha (2021) 434 ITR 692 (SC) The Supreme Court affirmed, on facts, that unless there is evidence that approval under 153D is a mere "rubber stamp," the presumption of regularity attaches to official acts. * Ganesh G. Chauhan v. ACIT 130 taxmann.com 59 (ITAT Mumbai) ITAT held: "The absence of a detailed note by the approving authority in the approval cannot itself vitiate the assessment order. The law does not require recording of elaborate reasons in the approval, except where circumstances so demand. Application of mind is discernible from the record." * Ankush Jain v. ITO 101 taxmann.com 152 (ITAT Delhi) "The requirement is of application of mind, not detailed or speaking approval. The presumption is in favor of regularity."
Further kind reference of the hon'ble bench is drawn to a recent judgement pronounced by ITAT, Delhi, in the case of Smt. Santosh Sharma v. DCIT (2018) 100 taxmann.com 41 (ITAT Delhi) "Unless there is evidence to show non-application of mind, the statutory presumption is that public authorities act regularly and with due care."
The facts of the referred judgements are similar to the instant case of appellant. The assessment records clearly demonstrate that the AO submitted the draft assessment order with supporting documents to the Jt. Commissioner/Addl. Commissioner for seeding approval and the approval was accorded after perusal of relevant materials. No evidence has been furnished by the assessee to show that approval was granted without looking at the record. The order of approval, though brief, refers to the facts of the case and the draft order, reflecting application of mind.
Furthermore, reliance is being placed upon the decision of Hon'ble ITAT in the case of Smt. Usha Satish Salvi, AY 2012-13 to AY 2014-15, dated 23.01.2025, wherein on the issue of approval u/s 153D of the Act has been considered at para 8 to 8.2, page 12 to 17 therein. In this decision, Hon'ble ITAT has considered various decisions of Hon'ble Courts as well as the affidavits of the AO and Range
Head regarding regular discussions between them prior to approval u/s 153D of the Act and the Hon'ble Tribunal had decided the issue in favour of the Department even in the case wherein common approval had been granted for all search cases of the assessee. PRAYER: The assessment order deserves to be upheld, and the assessee's objection on the ground of improper approval u/s 153D ought to be dismissed, in view of the reasons above which establish that the allegation that approval u/s 153D was mechanical is factually and legally unsustainable and must be rejected.”
Heard the contentions of both the parties and perused the material available on record. In the instant case, from the perusal of approval letters as reproduced above, for all the ten assessment years, it is incumbent upon the Additional CIT while granting the approval, to examine all the material including the assessment records, full appraisal report and seized material pertaining to each Assessment Year and with reference to the addition proposed by the AO for each individual assessment year for which approval is sought. Further approval is to be granted for each assessment year separately.
The Hon’ble Jurisdictional High Court in the case of Shiv Kumar Nayyar in [TS-343-HC-2024-Delhi] has held that the approval u/s 153D of the Act has to be granted for each Assessment year independently. The relevant observations of the judgement of Hon’ble High Court are as under:- "11. A plain reading of the aforesaid provision evinces an uncontrived position of law that the approval under Section 153D of the Act has to be granted for "each assessment year" referred to in clause (b) of sub-section (1) of Section 153A of the Act. It is beneficial to refer to the decision of the High Court of Judicature at Allahabad in the case of PCIT v. Sapna Gupta [2022 SCC OnLine All 1294] which captures with precision the scope of the concerned provision and more significantly, the import of the phrase- "each assessment year" used in the language of Section 153D of the Act. The relevant paragraphs of the said decision are reproduced as under:- "13. It was held therein that if an approval has been granted by the Approving Authority in a mechanical manner without application of mind then the very purpose of obtaining approval under Section 153D of the Act and mandate of the enactment by the legislature will be defeated. For granting approval under Section 153D of the Act, the Approving Authority shall have to apply independent mind to the material on record for "each assessment year" in respect of "each assessee" separately. The words 'each assessment year' used in Section 153D and 153A have been considered to hold that effective and proper meaning has to be given so that underlying legislative intent as per scheme of assessment of Section 153A to 153D is fulfilled. It was held that the "approval" as contemplated under 153D of the Act, requires the approving authority, i.e. Joint Commissioner to verify the issues raised by the Assessing Officer in the draft assessment order and apply his mind to ascertain as to whether the required procedure has been followed by the Assessing Officer or not in framing the assessment. The approval, thus, cannot be a mere formality and, in any case, cannot be a mechanical exercise of power. *** 19. The careful and conjoint reading of Section 153A(1) and Section 153D leave no room for doubt that approval with respect to "each assessment year" is to be obtained by the Assessing Officer on the draft assessment order before passing the assessment order under Section 153A." [Emphasis supplied] 12. It is observed that the Court in the case of Sapna Gupta (supra) refused to interdict the order of the ITAT, which had held that the approval under Section 153D of the Act therein was granted without any independent application of mind. The Court took a view that the approving authority had wielded the power to accord approval mechanically, inasmuch as, it was humanly impossible for the said authority to have perused and appraised the records of 85 cases in a single day. It was explicitly held that the authority granting approval has to apply its mind for "each assessment year" for "each assessee" separately.
13. Reliance can also be placed upon the decision of the Orissa High Court in the case of Asst. CIT v. Serajuddin and Co. [2023 SCC OnLine Ori 992] to understand the exposition of law on the issue at hand. Paragraph no.22 of the said decision reads as under:- "22. As rightly pointed out by learned counsel for the assessee there is not even a token mention of the draft orders having been perused by the Additional Commissioner of Income-tax. The letter simply grants an approval. In other words, even the bare minimum requirement of the approving authority having to indicate what the thought process involved was is missing in the aforementioned approval order. While elaborate reasons need not be given, there has to be some indication that the approving authority has examined the draft orders and finds that it meets the requirement of the law. As explained in the above cases, the mere repeating of the words of the statute, or mere "rubber stamping" of the letter seeking sanction by using similar words like "seen" or "approved" will not satisfy the requirement of the law. This is where the Technical Manual of Office Procedure becomes important. Although, it was in the context of section 158BG of the Act, it would equally apply to section 153D of the Act. There are three or four requirements that are mandated therein, (i) the Assessing Officer should submit the draft assessment order "well in time". Here it was submitted just two days prior to the deadline thereby putting the approving authority under great pressure and not giving him sufficient time to apply his mind ; (ii) the final approval must be in writing ; (iii) the fact that approval has been obtained, should be mentioned in the body of the assessment order." [Emphasis supplied] 14. During the course of arguments, learned counsel for the assessee apprised this Court that the Special Leave Petition preferred by the Revenue against the decision in the case of Serajuddin (supra), came to be dismissed by the Supreme Court vide order dated 28.11.2023 in SLP (C) Diary no. 44989/2023.
A similar view was taken by this Court in the case of Anuj Bansal (supra), whereby, it was reiterated that the exercise of powers under Section 153D cannot be done mechanically. Thus, the salient aspect which emerges from the abovementioned decisions is that grant of approval under Section 153D of the Act cannot be merely a ritualistic formality or rubber stamping by the authority, rather it must reflect an appropriate application of mind.
In the present case, the ITAT, while specifically noting that the approval was granted on the same day when the draft assessment orders were sent, has observed as under:- "10. We have gone through the approval granted by the ld. Addl. CIT on 30.12.2018 u/s 153D of the Act which is enclosed at page 36 of the paper book of the assessee. The said letter clearly states that a letter dated 30.12.2018 was filed by the ld. AO before the ld. Addl. CIT seeking approval of draft assessment order u/s 153D of the Act. The ld. Addl. CIT has accorded approval for the said draft assessment orders on the very same day i.e., on 30.12.2018 for seven assessment years in the case of the assessee and for seven assessment years in the case of Smt. Neetu Nayyar. It is also pertinent in this regard to refer to pages 68 and 69 of the paper book which contains information obtained by Smt. Neetu Nayyar from Central Public Information Officer who is none other than the ld. Addl. Commissioner of Income-tax, Central Range-S, New Delhi, under Right to Information Act, wherein, it reveals that the ld. Addl. CIT had granted approval for 43 cases on 30.12.2018 itself. This fact is not in dispute before us. Of these 43 cases, as evident from page 36 of the paper book which contains the approval u/s 153D, 14 cases pertained to the assessee herein and Smt. Neetu Nayyar. The remaining cases may belong to some other assessees, which information is not available before us. In any event, whether it is humanly possible for an approving 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."
Similarly, the Hon'ble Orissa High Court in the case of ACIT vs Serajuddin & Co. 454 ITR 312 (Orissa) had an occasion to examine substantial question of law on the propriety of approval granted under s. 153D of the Act. The Hon’ble Orissa High Court made wide ranging observations towards the manner and legality of approval under s. 153D of the Act. The Hon'ble High Court inter- alia observed that the approval under s. 153D of the Act being mandatory, while elaborate reasons need not be given, there has to be some indication that approving authority has examined draft orders and finds that it meets the requirement of law. The approving authority is expected to indicate his thought process while granting approval, held that it is not correct on the part of the Revenue to contend that the approval itself is not justifiable. Where the Court finds that the approval is granted mechanically, it would vitiate the assessment order itself. The Hon'ble High Court inter-alia observed that there is not even a token mention that draft order has been perused by the Ld. Addl. CIT. The approval letter simply grants approval. In other words, even the bare minimum requirement of approving authority having to indicate what thought process involved leading to the aforementioned approval has not been provided. As explained, the mere repeating of words of the Statue or mere rubber stamping of the communication seeking sanction by using similar words like 'approval' will not, by itself, meet the requirement of law. The Hon'ble Court made reference to manual issued by the CBDT in the context of erstwhile section 158BG of the Act and observed that such manual serves as a guideline to the AOs. Since it was issued by CBDT, the powers of issuing such guidelines can be traced to section 119 of the Act. The Hon'ble High Court also held that non-compliance of requirement of section 153D of the Act is not a mere procedural irregularity and lapse committed by Revenue may vitiate the assessment order. The SLP filed against the aforesaid judgement in the case of ACIT vs Serajuddin & Co. was dismissed as reported in (2024) 163 taxmann.com 118 (SC).
In so far as the order of the Co-ordinate Bench of the Tribunal (Mumbai Bench) relied by the Ld. Department's Representative in the case of Usha Satish Salvi (supra), in the said case, certain modifications were suggested to the A.O. in the draft assessment order, which have been carried out by the A.O. while passing the Assessment Order and the Bench therein observed that the said fact shows that approving authority approved the draft order not in mechanical manner but after due application of mind, however, in the present case, no such application of mind is forthcoming. Further in the case of Usha Satish Salvi (supra), the Ld. Department's Representative has filed affidavit of the then Assessing Officer and the approving authority who have denied the allegations raised by the Assessee. After relying on the said so called unchallenged depositions made in the Affidavit of the then A.O. and the approving authority, (which has been filed much after the granting of the approval and at the stage of second Appeal before the Tribunal), upheld the order of the Ld. CIT(A). Therefore, the present case in hand is factually distinguishable. In view of the judgement of the Hon'ble Delhi High Court in the case of Shiv Kumar Nayyar (supra), which is having binding precedent, and the order/ratio of the Tribunal in the case of Usha Satish Salvi (supra) has no effect of binding precedent.
15. Such mechanical approval cannot be sustainable in law in the light of judicial dicta available. The approval memo is totally silent on the issues involved and has granted omnibus approval without any thoughtful process being discernible. A single approval u/s 153D has been accorded in respect of three Assessment Years and other approval is for Seven assessment years and there is no other material to show involvement of the superior authority in the course of assessment proceedings. Thus, applying the ratio of judgements delivered as noted above, the assessment order based on ritualistic approval stands vitiated and thus, quashed by allowing Ground of appeal No. 4 of the Assessee.
16. Since we have already allowed the ground of appeal No. 4 taken by the assessee thus, other grounds of appeal are not adjudicated.
In the result, the appeal of the assessee is allowed. to 62/Del/2025 [Assessment Years 2012-13 to 2018-19 & 2020-21]
Since in all the other appeals of the assessee in 2025 to 62/Del/2025 for Assessment years 2012-13 to 2018-19 & 2020-21 respectively, the assessee has taken one of the ground of appeal, challenging the validity of assessment order passed u/s 143(3) r.w.s.153A of the Act in light of provisions of section 153D of the Act which issue has been decided in favour of the assessee in for AY 2011-12, hereinabove. Since the facts are identical and the approval was granted by Addl. CIT for all these assessment years also by a common order in terms of approval letters No. Addl. CIT(CR)/GGM/2021-22/702 & Addl. CIT(CR)/GGM/2021-22/703 dated 27.09.2021 for AYrs. 2011-12 to 2018-19 & 2020-21 respectively, thus following the said observations, ground of appeal taken with respect to the validity of approval in all the captioned appeals of the assessee are allowed. Since we have allowed legal ground of appeal of the assessee with regard to the validity of assessment on account of approval u/s 153D thus, other grounds of appeal in all these appeals are not adjudicated.
In the combined result, all appeals of the assessee in to 62/Del/2025 [Assessment Years 2011-12 to 2018-19 & 2020-21] respectively, are allowed.
Order pronounced in the open Court on 23.07.2025.