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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR.
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
ORDER Per Bench.:
The four instant appeals of the assessee are filed against the order of ld. Commissioner of Income Tax (Appeals)-2, Jalandhar, [in brevity the CIT(A)] are identical fact and having separate orders that were passed u/s 250(6)of the Income Tax Act 1961, ( in brevity the Act) the date of orders for all orders is dated to 594/Asr/2018 Assessment Years: 2008-09 & 2011-12 to 2013-14 2 28.09.2018 by their respective assessment years. The impugned orders were emanatedfrom the order of ld. Dy. Commissioner of Income Tax, Central Circle-1, Jalandhar (in brevity the AO), orders dated 27.07.2016, order passed U/s 153A r.w.s. 143(3) of the Act.
At the outset, assessee stated that under relevant factual backdrop as well as issue involve in all the cases are identical. We, therefore, treat the assessee’s appeal in ITA 591/Asr/2018 for A.Y. 2008-09 as a lead case as per the request of the ld. Counsel.
The brief fact of the case is that the search was conducted at the residence of assessee and survey operation u/s 133A was conducted on 03.04.2012 on the premises of assessee in which the total event was carried out in the following manner which is as below:
Event Date Remarks Date of search 03.04.2012 Due date for completion of 31.03.2015 assessment Dale of reference for Special 20.03.2015 audit 18.09.2015 Date of receipt of special When audit report was audit report received there were nil days with the AO to complete the assessment within limitation period. 07.1 1.2015 The reference was made alter Date of reference to VO 51 days of receipt of special audit report Receipt of report of 31.05.2016 valuation officer 27.07.2016 y Date of completion of 16 months after lapse of assessment limitation. to 594/Asr/2018 Assessment Years: 2008-09 & 2011-12 to 2013-14 3
The appellant was asked to file return, in response to notice u/s 153A of the Act. The assessment completed and order was passed u/s 153A/143(3) of the Act.
The assessee had challenged the sanctity of prior approval u/s 153D for passing the assessment order u/s 153A. As per the assessee, the same issue is already covered in the case of Sh. Madan Lal vs. DCIT bearing to 118/Asr/2018, dated 16.08.2021 and in the case of Sh. Sunny Arora ITA No. 477/Asr/2019 both the facts are identical with the assessees’s case. The same approval was also issued in batch of these person including the assessee. The copy of the approval u/s 153D issued by the ld. Additional CIT, Central Range, bearing No. DCIT/CC-1/Jal/2016- 17/658 dated 27.07.2016 is enclosed here. to 594/Asr/2018 Assessment Years: 2008-09 & 2011-12 to 2013-14 4 to 594/Asr/2018 Assessment Years: 2008-09 & 2011-12 to 2013-14 5
The order of the AO was challenged before the ld. CIT(A), with the sanctity of the prior approval u/s 153D. The ld. CIT(A) upheld the order of the ld. AO& dismissed the legal ground related legality of the order passed U/s 153A/ 143(3) of the Act.
Being aggrieved assessee filed an appeal before us.
The ld. Counsel of the assessee appeared and mentioned that the issue is already covered before the bench. The Coordinate Bench of the ITAT, Amritsar has already passed the similar order in the case of Sh. Sunny Arora in ITA No. 477/Asr/2019. For paucity of time here we are reproducing the order of and the observation of the Bench. The relevant part of said order is extracted as below: - “7. We heard the rival submission and carefully considered the submission made by both the parties. The counsel Mr. Kapoor relied on the judgment of the Coordinate Bench in case of Sh. Madan Lal, supra which in favour of the assessee. The assessment order u/s 153A/143(3) was passed before receiving the approval of the higher authority. Have a quick look on the section 153D which is extracted as follows: to 594/Asr/2018 Assessment Years: 2008-09 & 2011-12 to 2013-14 6 ‘153D. Prior approval necessary for assessment in cases of search or requisition. —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 clause (b) of section 153A or the assessment year referred to in clause (b) of sub-section (1) of section 153B, except with the prior approval of the Joint Commissioner.".
7.1. In the instant case, the issue involved is identical to the issue involved in No. 112 to 118/Asr/2018, supra. The assessing authority had passed without receiving the prior approval of the Addl. CIT. Ld. CIT DR was unable to show that the approval was received before or during passing of order on dated 27.07.2016. The appellate authority had also accepted the fact that the approval was duly received by the assessing authority on 28.07.2016. The direction of the statute for ‘prior approval’ was ignored by the revenue authority before passing of the order U/s 153A/143(3) of the Act. The order is erroneous and liable to be quashed.
9. In the result, the appeal of the assessee bearing ITA no. 478/Asr/2019 is allowed & all the appeals of the assessee are allowed.”
The ld. CIT DR relied on the order of the revenue authorities& was not able to produce any contrary order related to submission of the assessee’s counsel.
We heard the rival submission, and the issue is already decided by the same Bench. So, the approval u/s 153D is out of jurisdiction so the assessment was passed u/s 153A/143(3) has no legality in the eye of law & is liable to be quashed. to 594/Asr/2018 Assessment Years: 2008-09 & 2011-12 to 2013-14 7 The other appeals are mutate mutandis similar fact with ITA 591/Asr/2018.
In the result, bearing to 594/Asr/2018 are allowed.
Order pronounced in the open court on11.10.2022