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Income Tax Appellate Tribunal, DELHI BENCH: ‘E’ NEW DELHI
Before: SHRI SATBEER SINGH GODARA & SHRI M. BALAGANESH
ORDER PER SATBEER SINGH GODARA, JM These assessee’s and Revenue’s cross appeals & 2195/Del/2023 for assessment year 2017-18, arise against the Commissioner of Income Tax (Appeals)-31 [in short, the “CIT(A)”], New Delhi’s order dated 10.05.2023 passed in case no. 1121/21- 22, involving proceedings under section 143(3) of the Income-tax Act, 1961 (hereinafter referred to as ‘the Act’). Heard both the parties. Case files perused.
We note at the outset that there arise the twin legal issues of validity of the impugned section 143(3) assessment framed by the Assessing Officer dated 30th December, 2018 inter alia for want of a valid section 153D approval as well as on account of a fact that the learned lower authorities had neither initiated section 148 or section 153C proceedings herein, as the case may be.
We now advert to the basic relevant facts in the instant twin cross appeals. There is not dispute that the learned departmental authorities had carried out the search in question dated 25.11.2016 in Mr. Mohit Garg & Others’ cases wherein “certificates/documents belonging to the assessee were seized” as per the assessment order dated 30.12.2018. The assessee filed his return on 28.03.2018 declaring total income/loss of Rs.9,84,010/- . The Assessing Officer issued section 143(2) notice dated 28.09.2018; and, thereafter, he finalized his assessment in question inter alia making various additions which are not discussed herein since we are dealing with the above twin legal issues at this stage. The assessee appears to have challenged the Assessing Officer’s foregoing action before the CIT(A) who has partly accepted his lower appeal.
2 | P a g e This is what leaves both these parties aggrieved who have preferred their respective cross appeals herein.
4. We now come to the above former issue of validity of the impugned assessment for want of a section 153D approval. Learned counsel has invited our attention to page 10 in his paper- book indicating a common approval dated 29.12.2019 involving total eight persons including the assessee at serial no. 3 in assessment years 2011-12 to 2016-17.
It is in this factual backdrop that we sought to verify the clinching fact herein as to whether there is any separate approval for the impugned assessment year 2017-18 in the assessee’s case or not. No satisfactory reply has come from the Revenue side throwing sufficient light on the issue. We are thus constrained to hold that there was a common approval in the assessee’s and other seven persons’ cases which has already been held as not a substantive compliance to the provisions of the Act in ACIT Vs. Serajuddin and Co. [2024] 163 taxmann.com 118 (SC), PCIT Vs. Anuj Bansal [2024] 466 ITR 254 (SC), PCIT Vs. MDLR Hotels (P) Ltd. [2024] 166 taxmann.com 327 (Delhi), PCIT Vs. Shiv Kumar Nayyar [2024] 163 taxmann.com 9 (Delhi) and PCIT Vs. Sapna
3 | P a g e Gupta [2023] 147 taxmann.com 288 (All.) already deciding the very issue in assessee’s favour and against the department. Their lordships further hold that such a mechanical exercises of section 153D approval could not be mechanically finalized in absence of the prescribed authority having properly applied its mind. We thus decide the above former legal question in the assessee’s favour and against the department to conclude that the impugned assessment framed by the Assessing Officer on 30th December, 2018 is itself a non-est one in the eyes of law.