HITESH GOLCHHA vs. ASSISTANT COMMISSIONER OF INCOME TAX

Both the appeals are heard together since common question of law has been involved.

The present appeal has been filed against the order of ITAT dated 02/11/2023 for the assessment years 2016-2017 and 2014-2015. 3. The contention of the appellant is that the assessment was made pursuant to a scrutiny. It is stated that under Section 153(D) of the Income Tax Act 1961 in case of assessment pursuant to it provides mandatory provision which purports that that no order of assessment or re-assessment shall be passed by the Assessing Officer except with the prior approval of the Joint Commissioner. He submitted that in the instant case, the order has been passed by the Assessing Officer though the approval is said to have been obtained. But the said approval letter dated 20.12.2018 (Annexure - 4) would show that there is no application of mind as mechanical approval has been granted by the Joint Commissioner.

He would submit that since the right is being protected under Section 153(D) of the Income Tax Act, as per the law laid down by High Court of Orissa in the matter of Assistant Commissioner of Income Tax, (2023) 454 ITR 312 : 2023 SCC Online Ori 992: (2023) 333 CTR 228, the bare minimum requirement of said section is Approving Authority is required to indicate that what thought process was involved which should be reflected in the approval order, though the elaborate reasons need not to be given, but some indication of reason for arriving into conclusion must exist. In order to appreciate the 3 submission, we went through the order of the ITAT as also the approval order dated 20.12.2018 (Annexure - 4). As per Section 153(D) which has covered the instant case in hand the statute mandates was to obtain a prior approval of the Joint Commissioner by the Assessing Officer. The approval of Joint Commissioner has been taken, therefore mandate of Section 153(D) has been complied.

The order of the Assessing officer of approval (Annexure - 4) would reflect that Joint Commissioner was satisfied on the basis of the documents on record that such approval was justified. In a given case, it can not be presumed on the mere say of the assesee that no application of mind was there while granting the approval. It is the subjective satisfaction and the language of the (Annexure - 4) would show that on the basis of the document produced before the Joint Commissioner, he was convinced of the fact that such approval would be necessary as the statute mandate.

From perusal of the language of the letter (Annexure - 4), we cannot presume that there was no application of mind as the approval need not be a detailed assessment order. The presumption under Section 114 of the Evidence Act would follow when such official Act has been done in accordance with official procedure and will lead to presumption that due diligence was followed. Even otherwise, the order of the ITAT would reflect that the case of appellant was remanded back to the Assessing Officer for fresh adjudication of the issue. Further the liberty was given to the assessee to raise all such 4 issues before the Revenue Authorities and furnish necessary information/evidences in support of his contention. When such right has already been reserved in favour of the assessee, to raise grounds, we do not find that any prejudice has been caused and in fact the ITAT has principally accepted the contention of the appellant and in furtherance to advance the rules of natural justice, opportunity is given to appellant assessee.

In view of the fact, we do not find any substantial question of law arises for consideration. Accordingly, the appeal is being disposed off without any observation on merits of the case. (Goutam Bhaduri) (Radhakishan Agrawal) JUDGE JUDGE Vaibhav