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Income Tax Appellate Tribunal, DELHI BENCH C, NEW DELHI
Before: SH. SUDHIR KUMAR & SH. MANISH AGARWAL
Date of hearing: 22/05/2025 Date of Pronouncement: 28/05/2025 ORDER PER SUDHIR KUMAR, JUDICIAL MEMBER:
This appeal is preferred by the assessee against the order dated 28.08.2023 of the Commissioner of Income Tax, Appeal Lucknow -3 [hereinafter referred to as “Ld. CIT(A)”] arising out of the order of the Asstt. Commissioner of Income Tax Central Circle Moradabad dated 13.04.2021 passed under section 153A/ 143(3) of the Income Tax Act, 1961 [herein after, the Act] for the assessment year 2018-19, on the following grounds of appeal:
“ 1. BECAUSE, on the facts and in the circumstances of the case the Ld. Commissioner of Income Tax (Appeals) erred in sustaining addition after applying certain percentile (42.82%) at Rs. 26,89,337 on account of suppressed sale on extrapolation/adhoc basis in absence of incriminating material.
2. BECAUSE, on the facts and in the circumstances of the case, the L4. Commissioner of Income Tax (Appeals) erred in sustaining addition of Rs. 26,89,337/- is against the ratio laid down by Apex Court in case of Abhisar Buildwell (P.) Ltd. [2023] 149 taxmann.com 399 (SC) 3. BECAUSE, on the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (Appeals) erred in sustaining addition of Rs.1,55,207/- is bad in law since the 1ª floor of the clinic/nursing home is used by the partners of the firm, who are doctors by the profession.
BECAUSE, on the facts and in the circumstances of the case, the order passed by the Ld. Commissioner of Income Tax (Appeals) is plain arbitrary and purely based on conjectures and surmises and hence bad in law and liable to be set-aside and quashed.
5. BECAUSE, on the facts and in the circumstances of the case, the order passed by the Ld. Commissioner of Income Tax (Appeals) is bad in law as no due and proper opportunity of hearing was granted to the assessee therefore deserves to be set-aside and quashed.
6. The humble assessee, craves for leave to add/ amend any other ground with the prior permission of your honours.”
At the time of hearing it came up that on behalf of assessee an application of additional grounds of appeal under Rule 11 of Income Tax Appellate Tribunal Rules 1963 have been filed wherein following ground are raised: “That impugned assessment order passed by Ld AO (ACIT/DCIT Central Moradabad) dated 19.04.2021 as partly sustained by Ld CIT-A are void ab initio and is jurisdictionally flawed as said assessment order is undisputedly and admittedly PASSED based on mechanical/rubber stamp/consolidated and invalid approval u/s153D dated 07.04.2021 (as supplied with RTI reply dated 08.07.2024 by office of Ld AO) and therefore impugned asst order and first appeal order may please quashed for total want of valid /requisite approval us 153D of 1961 Act"
This hon'ble ITAT as is well settled has ample powers in law to admit such additional legal jurisdictional ground (going to the root of the matter) as per prevalent/applicable judicial legal position.
The brief facts of the case are that the assessee is a partnership firm and running hospital in the name and style of M/s JOMC Hospital and path Lab namely Dr. P. K. Khanna and Dr. Rita Khanna with share of profit in equal portion. The assessee filed return of income for A.Y. 2018-19 declaring total income of Rs. 9,26,100/- on 17-08-2018. A search and seizure operation u/132 of the Act was conducted at the M/S JPMC Hospital including of its partners Dr. P.K. Khanna and Dr. Rita Khanna on 17-01-2019. During the search operation incriminating documents were seized. Notice u/s 153 A of the Act was issued to the assessee. In the response of the notice the assessee filed return of income declaring of Rs. 926100/-. The A.O. has completed the assessment and assed the total income of Rs. 73,61,871/- after making the addition.
4. Aggrieved the order the assessee filed appeal before the Ld. CIT(A) who vide his order dated 28-09-2023 partly allowed the appeal. Being aggrieved the order of Ld. CIT(A) the assessee preferred this appeal before the Tribunal.
5. First, we take up legal issue raised by the assessee in the grounds of appeal. Before deciding the legal issue in dispute, we may reproduce the approval u/s 153D of the Act as under:
6. Ld. Counsel for assessee filed a paper book containing pages 1to 147 wherein, various case laws have been referred and also relied on the case laws other than the paper books, whereby the legal issue in dispute has been decided in favour of the assessee. Ld. counsel drew our attention towards the decision viz Hon’ble Jurisdictional Allahabad High Court in the case of PCIT Central vs, Sidharth Gupta reported in 450 ITR 534 which was up held by the Hon’ble Supreme Court in SLP (Civil) Diary No. 43280/2023 dated 09-08-2024 & ITAT Delhi Bench decision JSS Buildcon Private Limited vs DCIT & 4690/Del/ 2024 and Rita Khanna Vs DCIT and submitted that by following the ratio of the aforesaid case laws, legal issue involved in the instant appeal may be allowed.
7. Ld. DR, submitted that the matter should have decided on merit. Reliance has been placed the case Improvement Trust, Ludhiana Vs. Ujagar Singh & Ors Civil Appeal No. 2398 of 2008 in which Hon’ble Supreme Court held that attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technalities. In the case of Zerita Ashlen Rocha vs Ann Marry Varghese the Hon’ble Kerla High Court held that courts should make every endeavor to dispose of a case on merits rater than on default.
We have heard the both parties and perused the materials available on record.
The Co-Ordinate Delhi Bench in the case of JSS Buildcon Private Limited vs DCIT & 4690/Del/ 2024 has decided the issue and observed as under: “ 11 We find that Hon'ble jurisdictional Allahabad High Court in the case of PCTT Central vs. Siddharth Gupta (supra) has decided the similar legal issue in favour of the assessee and against the Revenue, which was upheld by Hon'ble Supreme Court in SLP (Civil) (supra) and Hon'ble High Court held as under :- "The approval of draft assessment order being an in-built protection against any arbitrary or unjust exercise of power by the Assessing Officer, cannot be said to be a mechanical exercise, without application of independent mind by the Approving Authority on the material placed before it and the reasoning given in the assessment order. It is admitted by Sri Gaurav Mahajan, learned counsel for the appellant-revenue that the approval order is an administrative exercise of power on the part of the Approving Authority but it is sought to be submitted that mere fact that the approval was in existence on the date of the passing of the assessment order, it could not have been vitiated. This submission is found to be a fallacy, in as much as, the prior approval of superior authority means that it should appraise the material before it so as to appreciate on factual and legal aspects to ascertain that the entire material has been examined by the Assessing Authority before preparing the draft assessment order. It is trite in law 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. The requirement of approval under Section 153D is pre-requisite to pass an order of assessment or re-assessment. Section 153D requires that the Assessing Officer shall obtain prior approval of the Joint Commissioner in respect of "each assessment year" referred to in Clause (b) of sub-section (1) of Section 153A which provides for assessment in case of search under Section 132. Section 153A(1)(a) requires that the assessee on a notice issued to him by the Assessing Officer would be required to furnish the return of income in respect of "each assessment year" falling within six assessment years (and for the relevant assessment year or years), referred to in Clause (b) of sub- section (1) of Section 153A. The proviso to Section 153A further provides for assessment of the total income in respect of each assessment year falling within such sis assessment years (and for the relevant assessment year or years). The careful and conjoint reading of Section 153AL13 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 orders under Section 153A.
13. We further find that Hon'ble Delhi High Court in the case of PCTT vs. Shiv Kumar Nayyar (supra) has decided the similar legal issue in favour of the assessee and against the Revenue. The relevant findings of the Hon'ble Delhi High Court are reproduced as under :- "15. 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 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/05/2024 ot 21:34:51 that a letter dated 30.12.2018 was filed by the Id. AO before the ld. Addl. CIT seeking approval of draft assessment order u/s 153D of the Act. The Id. 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. NeetuNayyar from Central Public Information Officer who is none other than the Id. Addl. Commissioner of Income-tax, Central Range-S. New Delhi, under Right to Information Act, wherein, it reveals that the Id. 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 us 153D, 14 cases pertained to the assessee herein and Smt. NeetuNayyar. 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 Id. 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 Id. Addl. CIT has granted a single approval for all assessment years put together."
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.
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 authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 20/05/2024 at 21:34:51 judicial pronouncements discussed hereinabove, we are unable to find any substantial question of law which would merit our consideration."
12. We also find that ITAT Delhi Bench in the case of M/s Millenium Vinimay (P) Ltd. vs. ACIT, (supra) has dealt the similar legalissue and decided the same in favour of the assessee. The relevant findings of the Coordinate Bench are reproduced as under- "15. There are several decisions, which supports the view that approval granted by the superior authority in mechanical manner defeats the very purpose of obtaining approval u/s 153D of the Act. Such perfunctory approval has no legal sanctity in the eyes of the law. The decision of the co-ordinate bench in Shreelekha Damani VS. DCIT 173 TTJ 332(Mum.) which has been approved by jurisdictional High Court subsequently, 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, not a valid approva in the eye of law. Tribunal reproduced the observations made b the Additional CIT while granting approval and came to th conclusion that the same suffered from lack of application e mind. The Tribunal referred to various judgments of the Supreme Court and the High Courts in support of its conclusion that the approval whenever required under the law, must be preceded application of mind and consideration of relevant factors before the same can be granted. The approval should not be an empty ritual and must be based on consideration of relevant material record.
The learned Counsel for the Revenue submitted that the question of legality of the approval was raised by the assessee for the first time before the Tribunal. He further submitted that the Additional CIT had granted the approval The Tribunal committed an error in holding that the same is invalid.
Having heard the learned Counsel for the both sides and having perused the documents on record, we have no hesitation in upholding the decision of the Tribunal. The Additional CIT while granting an approval for passing the order of assessment, had made following remarks: "To. The DCIT(OSD)1, Mumbai Subject: Approval u/s 153D of draft order u/s 143(3) r.w.s. 1534 in the case of Smt. Shreelekha Nandan Damani for A.Y. 2007-08 reg. Ref: No. DCIT (OSD)1/CR7/Appr/2010-11 dt. 31.12.2010 As per this office letter dated 20.12.2010, the Assessing Officers were asked to submit the draft orders for approval u/s 153D on or before 24.12.2010. However, this draft order has been submitted on 31.12.2010. Hence there is no much time left to analyze the issue of draft order on merit. Therefore, the draft order is being approved as it is submitted. Approval to the above said draft order is granted u/s 153D of the I. T. Act, 1961."
In plain terms, the Additional CIT recorded that the draft order for approval under Section 153D of the Act was submitted only on 31st December, 2010. Hence, there was not enough time left to analyze the issues of draft order on merit. Therefore, the order was approved as it was submitted. Clearly, therefore, the Additional CIT for want of time could not examine the issues arising out of the draft order. His action of granting the approval was thus, a mere mechanical exercise accepting the draft order as it is without any independent application of mind on 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 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 adopted for issuing approval u/s 153D of the Act by expressing discordant note on such mechanical exercise of responsibility placed on designated authority under section 153D of the Act.
17. Hence, vindicated by the factual position as noted in preceding paras, we find considerable force in the arguments advanced by the Ld. the Assessee's Representative on the Additional Ground of Appeal
. In our considered opinion the approvals so granted under the shelter of section 153D of the Act does not pass the test of legitimacy. The Assessment orders of various assessment years as a consequence of such inexplicable approval lacks legitimacy. Consequently, the impugned assessments orders in the captioned appeals are non-est and a nullity and hence the same are quashed.
18. In view of prima facie merits found in the legal objections raised in the Addl. Grounds of the Assessees, we do not consider it expedient to look into the aspects on merits of additions/disallowance as the legal objections on sanction granted under Section 153D of the Act has been answered in favour of the Assessee. Thus the other Grounds raised in the Appeals of the Assessee in both the Appeals have rendered in- fructuous, which do not need any separate adjudication.
19. In the result, the Appeals filed by the Assessee in and are allowed.
11. Upon considering the entire aspect of the matter, we find that the approval has been granted not separately for each assessment year for the assessee whereas the provision of Section 153D of the Act stipulates conditions that no order of assessment or reassessment shall be made by an Assessment Officer below the rank of Joint Commissioner in respect of each assessment year referred to in Clause (b) of Sub Section (1) of Section 153A of the Act or the assessment year referred to in Clause (b) of Sub Section 153B of the Act except the prior approval of the Joint Commissioner. It further appears from the approval dated 08.06.2018 that the same was a common and composite order whereas the Addl. Commissioner is required to verify and approve that each of assessment year is complied with as well as procedural laid down under the Act. Such fact clearly reveals non-application of mind on the part of the Learned Addl. Commissioner of Income Tax, Central Range-7, New Delhi. Thus granting approval for all the common years 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.
In the result, appeal of the assessee is allowed."
10.. In the instant case approval was granted by the single order for the two years. Respectfully following the above precedents, we quash the proceedings, initiated u/s 153 A/143(3) of the Act in the absence of a valid approval granted by the Addl, Commissioner of Income Tax Central Range Lucknow. 11. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 28.05.2025.