Shri Subhajit Paul, Agartala V. Deputy Commissioner of Income Tax, Circle - Agartala , Agartala

CO 16/GTY/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7838 (ITAT-GUWAHATI)
• Duration Of Justice: 2 year(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-07-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 23-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ROCKEIN SAIKIA
• Keywords: Search and seizure; Document seized; Opportunity of being heard; Period of limitation; Validity of assessment; Procedural lapse; Assessment record; Block assessment; Time period of passing order; Documents seized; Set aside; CHAPTER XIVB
• Section: 271(1)(c); 143(3); 142(1); 153A; 251; 143(2); 191; 208; 192; 64; 142(2A); 113; 48; 13; 153; 119; 22; 153C; 147; 68; 148; 263; 132; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI ECOURT, AT KOLKATA BEFORE SHRI A. T. VARKEY, JM &DR. A.L.SAINI, AM ./ITA NO.116/GAU/2018 ( / ASSESSMENT YEAR:2014-15) DCIT, CIRCLE, AGARTALA VS. SHRI SUBHAJIT PAUL B.K. ROAD, BANAMALIPUR, AGARTALA, TRIPURA 799 001. ./ ./PAN/GIR NO.: AZNPP 5539 K (APPELLANT) .. (RESPONDENT) C.O. NO. 16/GAU/2018 (ARISING OUT OF ITA NO.116/GAU/2018 ( / ASSESSMENT YEAR: 2014-15) SHRI SUBHAJIT PAUL B.K. ROAD, BANAMALIPUR, AGARTALA, TRIPURA 799 001. VS. DCIT, CIRCLE, AGARTALA ./ ./PAN/GIR NO.: AZNPP 5539 K (CROSS-OBJECTOR) .. (RESPONDENT) ASSESSEE BY :SHRI ROCKEIN SAIKIA, JCIT, SR. DR REVENUE BY :SHRI SANJAY MODI, FCA / DATE OF HEARING : 10/06/2020 /DATE OF PRONOUNCEMENT : 31/07/2020 / O R D E R PER DR. A. L. SAINI: THE CAPTIONED APPEAL FILED BY THE REVENUE AND THE C ROSS OBJECTION FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2014-15, AR E DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX (APPEAL), SHILLONG, IN APPEAL NO. SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 2 22 2 CIT(A)/SHG/10062/2016-17 DATED 22.03.2018,WHICH IN TURN ARISE OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U /S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 29.03.2016. 2. GROUNDS OF APPEAL RAISED BY THE REVENUE ARE AS F OLLOWS: (I).THAT THE LD. CIT(A) IS ERRED IN ALLOWING RELIEF ON UNDISCLOSED INCOME OF RS. 86,12,277/- BEING THE SURPLUS OF PAYMENT RECEIVED F ROM FCI OVER LIABILITIES. (II) THAT THE LD. CIT(A) IS ERRED IN ALLOWING RELIE F TO THE ASSESSEE ON UNDISCLOSED INCOME OF RS. 2,31,83,893/- IGNORING THE ACCOUNTS M AINTAINED BY THE ASSESSEE IN TALLY SOFTWARE AVAILABLE IN THE COMPUTER OF THE ASS ESSEE. (III) FOR THAT THE APPELLANT CRAVES LEAVE TO ADD, A LTER, AMEND ANY / ALL OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF TH E HEARING OF THE APPEAL. 3. GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN HIS CROSS-OBJECTION ARE AS FOLLOWS: (I) FOR THAT THE APPEAL IS TIME BARRED. (II) FOR THAT THE LD. CIT(A) OUGHT TO HAVE HELD THA T ORDER OF ASSESSMENT IS BAD IN LAW AND UNSUSTAINABLE BEING PASSED IN VIOLATION OF SECTION 153D OF THE ACT. (III) FOR THAT THE LD. CIT(A) OUGHT TO HAVE HELD TH AT THE ORDER OF ASSESSMENT IS BAD IN LAW AS THE JURISDICTION IN ABSENCE OF ANY VALID NOTICE U/S 143(2) OF THE ACT HAVING BEEN SERVED UPON THE CROSS-OBJECTOR. (IV) FOR THAT THE LD. CIT(A) WAS JUSTIFIED IN DELET ING THE ARBITRARILY MADE ADDITION OF RS. 86,12,277/-. (V) FOR THAT THE LD. CIT(A) WAS JUSTIFIED IN DELETI NG THE ARBITRARILY MADE ADDITIONS OF RS. 1,64,58,199/- AND RS. 67,25,694/- AGGREGATIN G TO RS. 2,31,83,893/-. (VI) FOR THAT THE CROSS-OBJECTOR CRAVES LEAVE OF YO UR HONOURS TO TAKE ADDITIONAL GROUND OR GROUNDS OF CROSS-OBJECTION AND/OR MODIFY OR RESIGN ANY GROUND(S) OF CROSS-OBJECTION AT OR BEFORE THE TIME OF HEARING. 4. THE ASSESSEE IN HIS CROSS OBJECTION HAS CHALLENG ED THE VALIDITYOF ASSESSMENT ORDER DATED 29.03.2016 FRAMED BY THE ASSESSING OFFI CER U/S 143(3)/ 153D OF THE INCOME TAX ACT. THE ASSESSEE STATED THAT WHILE FRAM ING THE ASSESSMENT ORDER, THE ASSESSING OFFICER DID NOT TAKE APPROVAL FROM THE JO INT COMMISSIONER OF INCOME TAX, AS REQUIRED U/S 153D OF THE ACT, THEREFORE ORD ER SO MADE BY HIM IS VOID AND SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 3 33 3 HENCE NOT SUSTAINABLE IN THE EYE OF LAW. THIS TECHN ICAL GROUND RAISED BY THE ASSESSEE GOES TO THE ROOT OF THE MATTER, THEREFORE, FIRST WE ADJUDICATE THE SAME. 5. SHRI SANJAY MODI, LEARNED COUNSEL FOR THE ASSESS EE BEGINS BY POINTING OUT THAT ASSESSING OFFICER HAS FRAMED THE ASSESSMENT WITHOUT OBTAINING PRIOR APPROVAL OF THE JOINT COMMISSIONER OF INCOME TAX (IN SHORT JCI T) AS REQUIRED U/S 153D OF THE ACT. THEREFORE, THE ASSESSING OFFICER WAS HAVIN G NO JURISDICTION TO FRAME ASSESSMENT ORDER WITHOUT PRIOR APPROVAL OF JCIT AS THERE IS NECESSARY REQUIREMENT TO COMPLY WITH SECTION 153D OF THE ACT. THEREFORE, ORDER FRAMED BY THE ASSESSING OFFICER IS VOID IN THE EYE OF LAW AND SHOULD BE QUA SHED. 6. ON THE OTHER HAND, LD. DR FOR THE REVENUE HAS PR IMARILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER. HE STATED THAT REQU IREMENT U/S 153D OF THE ACT IS MERELY A PROCEDURAL ONE AND ASSESSMENT FRAMED BY TH E ASSESSING OFFICER CANNOT BE CONSIDERED AS VOID IN THE LAW; JUST BECAUSE THER E IS A SMALL BREACH IN OBSERVING THE PROVISIONS OF SECTION 153D OF THE ACT. 7. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GON E THROUGH THE SUBMISSION PUT FORTH ON BEHALF OF THE ASSESSEE ALONG WITH THE DOCU MENTS FURNISHED AND THE CASE LAWS RELIED UPON, AND PERUSED THE FACT OF THE CASE INCLUDING THE FINDINGS OF THE LD CIT(A) AND OTHER MATERIALS AVAILABLE ON RECORD. WE NOTE THAT IN ASSESSEES CASE UNDER CONSIDERATION, THE ASSESSING OFFICER MADE THE ASSESSMENT WITHOUT TAKING APPROVAL FROM THE JOINT COMMISSIONER OF INCOME TAX, WHICH IS NECESSARY AS PER THE PROVISION OF SECTION 153D OF THE ACT. WE NOTE T HAT COMPLIANCE OF SECTION 153D IS MANDATORY IN NATURE AS HELD BY THE CO-ORDINATE B ENCH IN THE CASE OF SHRI SWAPAN KUMAR PAUL IN ITA NO. 136 TO 142/GAU/2018, F OR A.Y. 2008-09 TO 2014- 15, ORDER DATED 31 ST JULY, 2019.IN THIS ORDER, THE TRIBUNAL HAS INTER A LIA OBSERVED AS FOLLOWS: THE INSTANT BATCH OF THIRTY TWO CASES FOR ASSESSME NT YEAR(S) 2008-08 TO 2014-15 PERTAINS TO 5WO ASSESSEES NAMELY SRI SWAPAN KUMAR P AUL AND SMT.NAMITA PAUL INVOLVING THE VERY SEARCH DATED 23.08.2013 AT THEIR BUSINESS AND RESIDENTIAL SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 4 44 4 PREMISES ARISE FROM COMMISSIONER OF INCOME TAX (APP EALS)-SHILLONGS SEPARATE ORDERS DATED 26.03.2018 AND 23.03.2018 (ASSESSEE-WI SE); RESPECTIVELY INVOLVING PROCEEDINGS U/S 153A R.W.S. 143(3) OF THE INCOME TA X ACT, 1961; IN SHORT THE ACT. 2. IT TRANSPIRES AT THE OUTSET THAT THE FIRST AND F OREMOST ISSUE IN ASSESSEES APPEAL(S) / CROSS OBJECTION(S) CHALLENGES CORRECTNESS OF VALIDI TY OF ALL THE IMPUGNED ASSESSMENTS FRAMED BY THE ASSISTANT COMMISSIONER O F INCOME-TAX, AGARTALA CIRCLE FOR WANT OF APPROPRIATE APPROVAL BY THE JOINT COMMI SSIONER OF INCOME-TAX-AS REQUIRED U/S 153D OF THE ACT. WE THUS STAKE UP THIS FIRST AND FOREMOST LEGAL ISSUE FOR ADJUDICATION SINCE GOING TO ROOT OF THE MATTER. 3. LEARNED COUNSEL APPEARING ASSESSEE HAS REITERATE D THE CORRESPONDING PLEADINGS IN THE INSTANT APPEAL(S) / CROSS OBJECTIONS THAT TH E IMPUGNED ASSESSMENT HAVE BEEN FRAMED WITHOUT OBTAINING PRIOR APPROVAL OF THE JCIT AS REQUIRED U/S 153D OF THE ACT. MR. A.K. BHARDWAJ AND MR. SANDIP SENGUPTA; ADD ITIONAL CIT AND JCIT, REPRESENT THE REVENUE BEFORE US. BOTH OF THEM STRON GLY ARGUE THAT THE JCIT HEREIN HAS DULY ACCORDED PRIOR APPROVAL TO THE ACITS DRAF T ASSESSMENT SOUGHT ON 28.03.2016. THEY PLACE ON RECORD THE ACITS APPROVA L LETTER DATED 28.03.2016 SENT TO THE JCIT CONCERNED WHO IN TURN GRANTED HIS APPRO VAL READING AS UNDER:- NO. JCIT/AGAR/SEARCH & SEIZURE/2015-16 265 DATED: 28.03.2016 TO THE ACIT, CIRCLE AGARTALA /SUB: APPROVAL U/S 153D OF THE I.T. ACT IN RESPECT OF SRI SWAPAN KUMAR PAUL GROUP OF CASES, SEARCH CONDUCTED ON 23-08-2013- REG ARDING. / REF: YOUR LETTER NO. (I) AGZPP8327N/ACIT/AGT/2015-16/292 DTD. 28.03.16 (II) AACCR8033/ACTI/AGT/2015-16/293 DTD 28.03.16 (III) AGZPP8327N/ACTIT/AGT/2015-16/294 DT. 28.03.16 (IV) APDPP3896B/ACIT/AGT/2015-16/295 DTD 28.3.16 (V) AZBOO5539K/ACIT/AGT /2015-16/296 DTD 28.03.16. DRAFT ASSESSMENT ORDERS AS PER YOUR LETTERS UNDER R EFERENCE FOR THE AY 2008-09 TO 2014-15 ARE HEREBY APPROVED U/S. 153D OF THE I.T. A CT. DETAIL OF THE CASES IS GIVEN IN THE FOLLOWING TABLE. YOU ARE DIRECTED TO PASS FI NIAL ORDER IN THESE CASES & SERVED UPON THE ASSESSEE AND SEND A COPY OF THE SAID FINAL ORDER TO THIS OFFICE FOR RECORD PURPOSE. SINCE O ASSESSMENT RECORDS ARE SENT BY YOU ALONG WITH YOUR DRAFT ORDER(S), QUESTION OF RETURNING THE SAME DOES NOT ARISE. NAME OF THE ASSESSEE` PAN A/YR. ASSESSED INCOME (IN RS) REMARKS SWAPAN KUMAR PAUL AEYPP1792J 08- 09 21,04,770 1. DONT QUOTE SECTION 68 IN CASE OF ADDITION UNDER VOLUNTARY DISCLOSURE / UNDISCLOSED INCOME. SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 5 55 5 2. KEEP PROPER NOTE AS NOTE NOT FOR THE ASSESSEE. 3. PENALTY PROCEEDINGS U/S. 271(1)(C)/271AAB IS TO BE INITIATED AFTER CAREFUL CONSIDERATION. KEEP PROPER NOTE, I.E. YOUR SATISFACTION FOR INITIATION OF PENALTY QUOTING PROPER SECTION UNDER WHICH PENALTY PROCEEDINGS ARE INITIATED. PENALTY NOTICE IS TO BE ISSUED SPECIFYING PROPER SECTION & SERVED UPON THE ASSESSEE. 4. SENTENCE REGARDING APPROVAL U/S. 153D IS TO BE MENTIONED IN NOTE NOT FOR THE ASSESSEE . 5. RETURN INCOME MUST BE MENTIONED IN THE BODY OF THE ORDER. -DO- DO 09- 10 21,48,280 ..DO .. .DO... DO. 10- 11 27,90,260 .DO. .DO... DO. 11- 12 1,16,61,819 .DO. .DO... DO. 12- 13 2,32,87,431 .DO. .DO... DO. 13- 14 1,85,27,754 .DO. .DO... DO. 14- 15 2,80.46.245 .DO. NAAMITA PAUL AGZPP8327N 08- 09 1,61,60,303 .DO. .DO... DO. 09- 10 2,57,33,242 .DO. .DO... DO. 10- 11 5,33,53,150 .DO. .DO... DO. 11- 12 1,15,49,771 .DO. .DO... DO. 12- 13 1,54,87,038 .DO. .DO... DO. 13- 2,43,6,7,030 .DO. SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 6 66 6 14 .DO... DO. 14- 15 6,19,675 .DO. RAJARSHI MOTORS PVT LTD. AACCR8033P 08- 09 2,23,94,991 .DO. .DO... DO. 09- 10 7,54,48,735 .DO. .DO... DO. 10- 11 12,49,68,760 .DO. .DO... DO. 11- 12 21,25,81,959 .DO. .DO... DO. 12- 13 33,70,10,742 .DO. .DO... DO. 13- 14 27,25,50,393 .DO. .DO... DO. 14- 15 20,70,87,907 .DO. SUBHAJIT PAUL AZNPP5539K 08- 09 1,53,950 DO .DO... DO. 00- 10 5,25,320 .DO. .DO... DO. 10- 11 17,26,930 .DO. .DO... DO. 11- 12 19,23,600 .DO. .DO... DO. 12- 13 1,15,65,396 .DO. .DO... DO. 13- 14 1,74,58,030 .DO. .DO... DO. 14- 15 1,44,89,296 .DO. ABHIJIT PAUL APDPP3896B 08- 09 6,06,070 .DO. .DO... DO. 09- 10 7,20,050 .DO. .DO... DO. 10- 11 23,50,980 .DO. .DO... DO. 11- 12 7,97,79,562 .DO. .DO... DO. 12- 13 5,20,31,013 .DO. .DO... DO. 13- 14 16,89,25,162 .DO. .DO... DO. 14- 15 12,98,56,202 .DO. 4. MR. MODYS NEXT CONTENTION IS THAT THE JCIT HERE IN HAS NOT APPLIED HIS MIND WHILST APPROVING THE ASSESSING OFFICERS PROPOS FOR FRAMING SEC. 153A SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 7 77 7 ASSESSMENT(S) IN THESE TWO SEARCHED TAXPAYERS CASH. HE QUOTES THIS TRIBUNALS CO- ORDINATE BENCHS DECISION IN (2012) 137 ITD 94 (PUN E) IN AKILGULAMALISOMJI VS. ITO WARD-4(5), PUNE THAT SUCH AN ASSESSMENT WITHOUT FOLLOWING THE PRESCRIBED MANDATORY PROCEDURE IN NOT VALID. LEARNED CO-ORDINA TE BENCHS ORDER TO THIS EFFECT READS AS UNDER:- 11. WE HAVE CONSIDERED THE ABOVE SUBMISSIONS AND H AVE GONE THROUGH THE DECISIONS RELIED UPON BY THE PARTIES IN VIEW OF ORD ERS OF THE AUTHORITIES BELOW AND MATERIAL AVAILABLE ON RECORD. THE RELEVANT FACTS AR E THAT DURING THE COURSE OF SEARCH AND SEIZURE ACTION ON 29.7.2003 AT THE BUSIN ESS AND RESIDENTIAL PREMISES OF MR. SHRIRAM SONI, CERTAIN DOCUMENTS BELONGING TO TH E ASSESSEE WERE FOUND AND SEIZED. NOTICE U/S. 153C WAS ISSUED TO THE ASSESSEE AND ASSESSMENT U/S. 153C R.W.S. 144 HAVE BEEN FRAMED FOR ALL THE 4 A.YS. UND ER CONSIDERATION. BEFORE THE LD CIT(A), THE ASSESSMENT ORDERS WERE QUESTIONED BOTH ON LEGAL ISSUE AND ON MERITS. ON LEGAL ISSUE, THE VALIDITY OF ASSESSMENT ORDERS I N ABSENCE OF APPROVAL OBTAINED U/S. 153 D OF THE ACT OF JOINT COMMISSIONER OF INCO ME TAX HAS BEEN QUESTIONED. ON MERITS ADDITIONS MADE BY THE A.O WERE IMPUGNED. SINCE THE ASSESSEE COULD NOT SUCCEED IN ITS APPEAL, THE PRESENT APPEALS HAVE BEE N PREFERRED IN QUESTIONING THE FIRST APPELLATE ORDERS. 12. ON PERUSAL OF THE PROVISIONS LAID DOWN U/S. 153 C OF THE ACT, IT IS APPARENT THAT AFTER ISSUANCE OF NOTICE U/S. 153C, THE A.O HAVING JURISDICTION OVER SUCH OTHER PERSON (AGAINST WHICH INCRIMINATING MATERIAL AKILGU LAMALISOMJI A.Y. 2001-02 TO 2004-05 PAGE OF 14 HAS BEEN FOUND DURING THE COURSE OF SEARCH CONDUCTED ON A PERSON) AROSE OR RE-ASSESS INCOME OF SUCH OTHER PER SON IN ACCORDANCE WITH THE PROVISIONS OF SEC. 153A. SEC. 153B TALKS ABOUT TIME LIMIT FOR COMPLETION OF ASSESSMENT U/S. U/S. 153A, WHEREAS S.153D , TALKS ABOUT NECESSITY OF PRIOR APPROVAL FOR FRAMING ASSESSMENT IN CASE OF SEARCH O R REQUISITION. WE THUS FULLY CONCUR WITH THE SUBMISSION OF THE LD. A.R. THAT PRO VISIONS LAID DOWN U/S. 153D ARE VERY MUCH APPLICABLE IN CASE OF ASSESSMENT OF I NCOME OF ANY OTHER PERSON (I.E. THE PERSON OTHER THAN THE PERSON SEARCHED). NOW THE ISSUE FOR OUR ADJUDICATION IS AS TO WHETHER ABSENCE OF OBTAINING PRIOR APPROVAL U /S. 153D OF JOINT COMMISSIONER OF INCOME TAX, ASSESSMENT MADE U/S. 15 3 C WILL MAKE THE ASSESSMENT VOID OR VOIDABLE/CURABLE. FOR A READY RE FERENCE, PROVISIONS LAID DOWN U/S. 153D OF THE ACT ARE BEING REPRODUCED HEREUNDER : '153D. NO ORDER OF ASSESSMENT OR REASSESSMENT SHALL BE PASSED BY AN ASSESSING OFFICER BELOW THE RANK OF JOINT COMMISSIO NER IN RESPECT OF EACH ASSESSMENT YEAR REFERRED TO IN CLAUSE (B) OF [SUB- SECTION (1) OF SECTION 153A OR THE ASSESSMENT YEAR REFERRED TO IN CLAUSE (B) O F SUB-SECTION (1) OF SECTION 153B , EXCEPT WITH THE PRIOR APPROVAL OF THE JOINT COMMISSIONER].' THE ABOVE PROVISIONS U/S. 153D HAVE BEEN LAID DOWN UNDER THE HEADING ' PRIOR APPROVAL NECESSARY FOR ASSESSMENT IN CASES OF SEARC H OR REQUISITION '. THIS HEADING ITSELF SUGGESTS THAT OBTAINING PRIOR APPROV AL THE ASSESSMENT IN CASES OF SEARCH OR REQUISITION IS NECESSARY. WE FURTHER NOTE THAT THE PROVISIONS U/S. 153D START WITH A NEGATIVE WORDING 'NO ORDER OF ASSESSME NT OR RE-ASSESSMENT' SUPPORTED BY THE FURTHER WORDING ' SHALL ' MAKES THE INTENTION OF THE LEGISLATURE SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 8 88 8 CLEAR THAT COMPLIANCE OF SEC. 153D REQUIREMENT IS M ANDATORY. NO UNIVERSAL RULE CAN BE LAID DOWN AS TO WHETHER MANDATORY ENACTMENT SHALL BE CONSIDERED DIRECTORY OR AKILGULAMALISOMJI A.Y. 2001-02 TO 2004 -05 PAGE OF 14 OBLIGATORY WITH AN IMPLIED NULLIFICATION FOR DISOBEDIENCE. AS PER THE DECISION OF HON'BLE SUPREME COURT IN THE CASES OF BANWARILALAGARWALLA V S. STATE OF BIHAR, AIR 1961 SC 849 (853); RAZASBULLAND SUGAR CO.LTD., VS. MUNIC IPAL BOARD, AIR 1965 (SC) 895 (899) & OTHERS IF OBJECT OF THE ENACTMENT WILL BE BENEFITED BY HOLDING THE SAME DIRECTORY, IT WILL BE CONSTRUED AS MANDATORY, WHEREAS IF BY HOLDING IT MANDATORY, SERIOUS GENERAL INCONVENIENCE WILL BE CR EATED TO NASCENT PERSONS WITHOUT VERY MUCH FURTHER OBJECT OF ENACTMENT, THE SAME WILL BE CONSTRUED AS DIRECTORY. BUT ALL THESE DOES NOT MEAN THAT LANGUAG E USED IS TO BE IGNORED, ONLY THAT THE PRIMA FACIE INFERENCE OF THE INTENTION OF THE LEGISLATURE ARISING FROM THE WORDS USED MAY BE DISPLACED BY CONSIDERING THE NATU RE OF THE ENACTMENT, ITS DESIGNED CONSEQUENCES FLOWING FROM ALTERNATIVE CONS TRUCTIONS. THE WORDINGS AND LANGUAGE USED IN SEC. 153D OF THE ACT AND THE HEADI NG ' PRIOR APPROVAL NECESSARY FOR ASSESSMENT IN CASES OF SEARCH OR REQUISITION ' UNDER WHICH, SEC. 153D HAS BEEN PROVIDED DO NOT LEAVE AN IOTA OF DOUBT ABOUT T HE VERY INTENTION OF THE LEGISLATURE TO MAKE THE COMPLIANCE U/S. 153D A MAND ATORY. THERE IS NO DISPUTE THAT IF A PROVISION IS MANDATORY, AN ACT DONE IN BR EACH THEREOF WILL BE INVALID, BUT, IF IT IS DIRECTORY, THE ACT WILL BE VALID ALTHOUGH NON-COMPLIANCE MAY GIVE RISE TO SOME OTHER PENALTY IF PROVIDED BY THE STATUTE. THE GENERAL RULE THAT NON- COMPLIANCE OF MANDATORY REQUIREMENTS RESULTS IN NUL LIFICATION OF THE ACT IS SUBJECT AT LEAST TO ONE EXCEPTION. IF CONTAIN REQUIREMENTS OR CONDITIONS ARE PROVIDED BY A STATUTE IN THE INTEREST OF A PARTICULAR PERSON, THE REQUIREMENTS, OR CONDITIONS ALTHOUGH MANDATORY MAY BE WAIVED HIM IF NO PUBLIC I NTEREST ARE INVOLVED AND IN SUCH CASE, THE ACT DONE STILL BE VALID EVEN IF THE REQUIREMENT OR CONDITION HAS NOT BEEN PERFORMED. HERE, BEFORE US, IS NOT A CASE WHER E CONSENT OF ASSESSEE WILL WAIVE THE CONDITION OF OBTAINING PRIOR APPROVAL U/S . 153D OF THE JOINT COMMISSIONER OF INCOME TAX BY THE A.O FOR FRAMING A KILGULAMALISOMJI A.Y. 2001-02 TO 2004-05 PAGE OF 14 ASSESSMENT U/S. 153C/ 153 A OF THE ACT . CONDITION OF PRIOR APPROVAL OF JCIT U/S. 153D HAS BEEN PUT IN PUBLIC INTEREST AND NOT IN THE INTEREST OF A PARTICULAR PERSON. THUS IT CANNOT BE WAIVED BY PARTICULAR PERSON. THE USE OF WORD ' SHALL ' RAISES A PRESUMPTION THAT A PARTICULAR PROVISION IS IMPERATIVE BUT THIS PRIMA FACIE INFERENCE MAY BE REVERTED BY O THER CONSIDERATION SUCH AS OBJECT AND SCOPE OF THE ENACTMENT AND CONSEQUENCE F LOWING FROM SUCH CONSTRUCTION. THE REVENUE HAS NOT BEEN ABLE TO REBU T THE ABOVE INFERENCE BY POINTING OUT OTHER CONSIDERATION LIKE OBJECT AND SC OPE OF THE ENACTMENT AND THE CONSEQUENCE FLOWING FROM SUCH CONSTRUCTION BEFORE U S. CLAUSE 9 OF MANUAL OF OFFICE PROCEDURE, VOLUME II (TECHNICAL) FEBRUARY 20 03 ISSUED BY DIRECTORATE OF INCOME TAX ON BEHALF OF CENTRAL BOARD OF DIRECT TAX ES, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA, READS AS UNDER: '9. APPROVAL FOR ASSESSMENT: AN ASSESSMENT ORDER UN DER CHAPTER XIV-B CAN BE PASSED ONLY WITH THE PREVIOUS APPROVAL OF TH E RANGE JCIT/ADDL.CIT. (FOR THE PERIOD FROM 30-6-1995 TO 31 -12-1996 THE APPROVING AUTHORITY WAS THE CIT.) THE ASSESSING OFF ICER SHOULD SUBMIT THE DRAFT ASSESSMENT ORDER FOR SUCH APPROVAL WELL IN TI ME. THE SUBMISSION OF THE DRAFT ORDER MUST BE DOCKETED IN THE ORDER-SHEET AND A COPY OF THE DRAFT ORDER AND COVERING LETTER FILED IN THE RELEVANT MIS CELLANEOUS RECORDS SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 9 99 9 FOLDER. DUE OPPORTUNITY OF BEING HEARD SHOULD BE GI VEN TO THE ASSESSEE BY THE SUPERVISORY OFFICER GIVING APPROVAL TO THE PROP OSED BLOCK ASSESSMENT, AT LEAST ONE MONTH BEFORE THE TIME BARRING DATE. FI NALLY ONCE SUCH APPROVAL IS GRANTED, IT MUST BE IN WRITING AND FILE D IN THE RELEVANT FOLDER INDICATED ABOVE AFTER MAKING A DUE ENTRY IN THE ORD ER-SHEET. THE ASSESSMENT ORDER CAN BE PASSED ONLY AFTER THE RECEI PT OF SUCH APPROVAL. THE FACT THAT SUCH APPROVAL HAS BEEN OBTAINED SHOUL D ALSO BE MENTIONED IN THE BODY OF THE ASSESSMENT ORDER ITSELF.' CHAPTER XIVB ALSO DEALS WITH ASSESSMENT OF SEARCH C ASES. SECTIONS 153A, 153B & 153C HAVE BEEN INTRODUCED TO CHAPTER XIV 'PROCEDURE FOR AKILGULAMALISOMJI A.Y. 2001-02 TO 2004-05 PAGE OF 14 ASSESSMENT' W.E. F. 1.6.2003 BY THE FINANCE ACT 2003 WHEREAS SEC. 153 D HAS BEEN INSERTED TO THE C HAPTER W.E.F. 1.6.2007 BY THE FINANCE ACT 2007. THESE PROVISIONS THUS ALSO DEAL WITH THE ASS ESSMENT IN CASE OF SEARCH OR REQUISITION AND WHEN THE ASSESSMENT OR DERS IN THE PRESENT CASE WERE PASSED THE PROVISIONS LAID DOWN U/S. 153D WERE VERY MUCH IN OPERATION. IN THE PRESENT CASE, ASSESSMENTS IN QUESTION HAVE BEEN FRA MED ON 27.12.2007. 13. IN THE CASE OF CIT VS. RATNABAI N.K. DUBHASH (M RS.) (SUPRA), THE DIFFERENCE BETWEEN CANCELLATION AND AMENDMENT OF ASSESSMENT IN VIEW OF THE PROVISIONS OF SECTIONS 143 , 144B , 153 AND 251 OF THE I.T. ACT 1961 HAS BEEN DEALT WITH. THE HON'BLE HIGH COURT HAS BEEN PLEASED TO HOLD AS UNDE R: 'IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE CLE AR OPINION THAT IN CASES FALLING UNDER SECTION 144B OF THE ACT, THE QUASI-JUDICIAL FUNCTION OF THE INCOME-TAX OFFICER AS AN ASSESSING AUTHORITY COMES TO AN END THE MOMENT THE ASSESSEE FILES OBJECTIONS TO THE DRAFT ORDER. T HE POWER TO DETERMINE THE INCOME OF THE ASSESSEE THEREAFTER GETS VESTED IN TH E INSPECTING ASSISTANT COMMISSIONER TO WHOM THE INCOME-TAX OFFICER IS REQU IRED TO FORWARD THE DRAFT ORDER TOGETHER WITH OBJECTIONS. THE ONLY THIN G THAT REMAINED TO BE DONE BY THE INCOME-TAX OFFICER IS TO PASS A FINAL O RDER IN ACCORDANCE WITH THE DIRECTIONS GIVEN BY THE INSPECTING ASSISTANT CO MMISSIONER. THE FUNCTION OF THE INCOME-TAX OFFICER TO MAKE THE FINA L ASSESSMENT UNDER SECTION 144B(5) OF THE ACT IS MORE IN THE NATURE OF A MINISTERIAL FUNCTION BECAUSE HE CAN PASS THE ORDER ONLY IN ACCO RDANCE WITH THE DIRECTIONS OF THE INSPECTING ASSISTANT COMMISSIONER . HE CANNOT VARY ORDEPART FROM THE DIRECTIONS GIVEN BY THE INSPECTIN G ASSISTANT COMMISSIONER. MOREOVER, THE REQUIREMENTS OF SECTION 144B OF THE ACT RE MANDATORY. THE INCOME-TAX OFFICER HAS NO OPTION BUT TO FOLLOW THE SAME. HE CANNOT MAKE THE FINAL ORDER ON THE BASIS OF THE DRAFT ORDER WITHOUT FORWARDING THE SAME TO THE INSPECTING ASSISTANT COM MISSIONER ALONG WITH THE OBJECTIONS AND WITHOUT OBTAINING THE DIRECTIONS OF THE INSPECTING ASSISTANT COMMISSIONER. AN ASSESSMENT MADE BY THE I NCOME-TAX OFFICER IN VIOLATION OF THE PROVISIONS OF SECTION 144B OF THE ACT WOULD BE AN ASSESSMENT WITHOUT JURISDICTION. IN THE INSTANT CAS E, THE ADMITTED POSITION IS THAT ON RECEIPT OF THE DRAFT AKILGULAMALISOMJI A .Y. 2001-02 TO 2004-05 PAGE OF 14 ORDER OF ASSESSMENT, THE ASSESSEE DID FI LE OBJECTIONS AND THE INCOME-TAX OFFICER COMPLETED THE ASSESSMENT HIMSELF ON THE BASIS OF THE DRAFT ORDER WITHOUT FORWARDING THE DRAFT ORDER AND THE OBJECTIONS TO THE SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 10 1010 10 INSPECTING ASSISTANT COMMISSIONER AND OBTAINING DIR ECTIONS FROM HIM. SUCH AN ORDER, ON THE FACE OF IT, IS BEYOND THE POW ERS OF THE INCOME-TAX OFFICER UNDER SECTION 143 READ WITH SECTION 144B OF THE ACT AND, HENCE, WITHOUT JURISDICTION. THE TRIBUNAL, IN OUR OPINION, WAS, THEREFORE, JUSTIFIED IN ITS CONCLUSION THAT THE ASSESSMENT WAS LIABLE TO BE ANNULLED. IT WAS RIGHT IN HOLDING THAT THE ASSESSMENT ORDER PASSED BY THE INCOME-TAX OFFICER THE INSTANT CASE WITHOUT REFERENCE TO THE INSPECTING AS SISTANT COMMISSIONER HAD RIGHTLY BEEN ANNULLED BY THE COMMISSIONER OF IN COME-TAX (APPEALS). IN VIEW OF THE ABOVE, WE ANSWER THE QUESTION REFERR ED TO US ACCORDINGLY IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THIS REFERENCE IS DISPOSED OF ACCORDINGLY WITH NO O RDER AS TO COSTS.' 14. IN THE CASE OF CIT VS. SPL'S SIDDHARTH LTD. (SU PRA), BEFORE THE HON'BLE DELHI HIGH COURT, THE FACTS WERE THAT NOTICE ISSUED BY TH E A.O U/S. 147 R.W.S 148 OF THE ACT FOR RE-OPENING THE ASSESSMENT FOR THE A.Y. 2002 -03 WAS SET ASIDE BY THE TRIBUNAL ON THE GROUND THAT THE REQUISITE APPROVAL OF ADDL. COMMISSIONER OF INCOME TAX, WHICH IS MANDATORILY REQUIRED, WAS NOT TAKEN. SINCE 4 YEARS HAD ELAPSED FROM THE END OF THE RELEVANT A.Y, THE A.O U /S. 151(1) OF THE ACT WAS REQUIRED TO TAKE APPROVAL OF THE COMPETENT AUTHORIT Y. THE HON'BLE DELHI HIGH COURT AFTER DISCUSSING THE ISSUE IN DETAIL AND THE CASE LAWS CITED BEFORE IT HAS BEEN PLEASED TO APPROVE THE DECISION OF TRIBUNAL. I N VIEW OF THESE DECISIONS AND THE POSITION OF LAW PROVIDED U/S. 153D OF THE ACT, WE HOLD THAT THE ASSESSMENT ORDERS IMPUGNED FRAMED IN ABSENCE OF OBTAINING PRIO R APPROVAL OF THE JOINT COMMISSIONER FOR THE A.YS. UNDER CONSIDERATION ARE INVALID AS NULL AND VOID AND ARE QUASHED ACCORDINGLY. 15. THE DECISIONS RELIED UPON BY THE LD. D.R ARE HA VING DIFFERENT FACTS AND ISSUE, HENCE ARE NOT HELPFUL TO THE REVENUE. IN THE CASE O F GUDUTHUR BROS. VS. ITO (SUPRA) THE LEVY OF PENALTY WITHOUT AFFORDING A HEA RING TO THE ASSESSEE WAS QUESTIONED BEFORE THE APPELLATE AUTHORITY, WHO SET ASIDE THAT ORDER. THE MATTER ULTIMATELY TRAVELLED TO THE HON'BLE SUPREME COURT A ND IT WAS HELD THAT THE ITO WAS WELL WITHIN HIS JURISDICTION TO CONTINUE THE PR OCEEDINGS FROM THE STAGE AT WHICH THE ILLEGALITY HAS OCCURRED AND TO ASSESS THE APPELLANTS TO A PENALTY, IF ANY. BEFORE THE HON' BLE M.P. HIGH COURT IN THE CASE OF CIT VS. SARDARILAL HASIM (SUPRA), THE ISSUE WAS REGARDING APPLICABILITY OF P RESCRIBED LIMITATION U/S. 275 IN A PENALTY ORDER PASSED AFTER THE CASE IS REMANDED B Y AN APPELLATE AUTHORITY. THE HON'BLE COURT WAS PLEASED TO HOLD THAT THE LIMITATI ON PRESCRIBED U/S. 275 OF THE ACT IS NOT APPLICABLE TO THE PENALTY ORDER PASSED A FTER THE CASE IS REMANDED BY AN APPELLATE AUTHORITY. IN THE CASE OF GAYATRI TEXTILE S VS. CIT (SUPRA) NON-OBTAINING OF PRIOR APPROVAL OF I.A.C U/S. 271(1)(C) (III) FOR DIRECTION FOR PAYMENT OF PENALTY WAS HELD AS PROCEDURALLY DEFECTIVE. THE PROVISIONS LAID DOWN U/S. 153D OF THE ACT UNDER CONSIDERATION IN THE PRESENT CASE BEFORE US, ARE DIFFERENT AS HERE THE PRIOR APPROVAL OF JOINT COMMISSIONER IS NOT REQUIRED MERE LY FOR DIRECTION FOR PAYMENT OF THE DUE AMOUNT OF TAX BUT OVERALL APPROVAL OF TH E ASSESSMENT FRAMED BY THE I.T.O. THUS, THE CITED DECISION IS NOT APPLICABLE I N THE PRESENT CASE. IN THE CASE OF CIT VS. SARA ENTERPRISES (SUPRA), THE ISSUE WAS AS TO WHETHER THE BAR OF LIMITATION CONTAINED U/S. 275 OF THE ACT WOULD ATTE NUATE OR CURTAIL THE POWERS OF CIT, VESTED IN HIM U/S. 263 OF THE SAID ACT. THE HO N'BLE MADRAS HIGH COURT WAS SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 11 1111 11 PLEASED TO HOLD THAT IT IS NOT HIT BY PROVISIONS OF SEC. 275 OF THE ACT. IN PRABU DAYALAMICHAND VS. CIT (SUPRA), THE HON'BLE HIGH COU RT OF MADHYA PRADESH WITH REFERENCE TO SEC. 271(1)(C) OF THE ACT WAS PLE ASED TO HOLD THAT A PROCEDURAL IRREGULARITY NOT INVOLVING THE QUESTION OF JURISDIC TION AKILGULAMALISOMJI A.Y. 2001-02 TO 2004-05 PAGE OF 14 CAN BE CURED. IT IS N OT HELPFUL TO THE REVENUE IN THE PRESENT CASE BECAUSE IN THE PRESENT CASE, THE A.O W AS HAVING NO JURISDICTION TO FRAME ASSESSMENT ORDER WITHOUT PRIOR APPROVAL OF JC IT AS NECESSARY REQUIREMENT TO COMPLY WITH U/S. 153D OF THE ACT. IN THE CASE OF CIT VS.DAMODHARMURALILAL (SUPRA), THE HON'BLE HIGH COURT DID NOT APPROVE THE VIEW OF THE TRIBUNAL IN HOLDING THAT IN VIEW OF CLAUSE (B) OF SEC. 251(1) O F THE ACT, THE FIRST APPELLATE AUTHORITY HAD NO POWER OF REMAND AND THEREFORE, THE PROCEDURAL ILLEGALITY WOULD NOT BE CORRECTED BY RECOURSE TO REMANDING THE CASE TO THE ITO. HERE IN THE PRESENT CASE, AS WE HAVE ALREADY DISCUSSED, AND ALS O CITED THE RECENT DECISION OF HON'BLE JURISDICTIONAL BOMBAY HIGH COURT IN THE CAS E OF CIT VS. RATNABAI N.K. DUBHASH (MRS.) (SUPRA) AND OF HON'BLE DELHI HIGH CO URT IN THE CASE OF CIT VS. SPL'S SIDDHARTH LTD. (SUPRA) THAT REQUIREMENT U/S. 153D FOR OBTAINING APPROVAL OF JCIT IS NOT PROCEDURAL ONLY BUT A MANDATORY REQU IREMENT, HENCE THE CITED DECISION BY THE LD. D.R IS NOT APPLICABLE IN THE CA SE OF PRESENT ASSESSEE. UNDER ABOVE CIRCUMSTANCES, THE ISSUE RAISED REGARDING THE VALIDITY OF ASSESSMENT ORDERS IN QUESTION WITHOUT OBTAINING PRIOR APPROVAL U/S. 1 53D OF THE ACT IS DECIDED IN FAVOUR OF THE ASSESSEE. THE ASSESSMENT ORDERS IN QU ESTION ARE THUS QUASHED AS NULL AND VOID. 4. WE AFFORDED AMPLE OPPORTUNITY TO THE DEPARTMENT TO CLEAR THE AIR AS TO WHETHER JCIT HAD APPLIED HIS MIND WHILST ACCORDING APPROVAL TO ACIT S DRAFT ASSESSMENT(S) IN THESE TWO ASSESSEES CASE OR NOT. MR. BHARDWAJ STATED THAT THE RELEVANT PROVISION ENSHRINED IN SEC. 153D OF THE AC T NOWHERE PRESCRIBES A PARTICULAR MODE OF APPROVAL. IT IS SUFFICIENT IF TH E ASSESSING OFFICER SEEKING APPROVAL PLACES THE ENTIRE FACTS/ISSUE(S) BEFORE TH E JCIT FOR THE PURPOSE OF SEEKING APPROVAL. HE INVITES OUR ATTENTION TO THE J CITS REMARKS IN LAST COLUMN EXTRACTED HEREINABOVE TO BUTTRESS THE POINT THAT TH E SAID PRESCRIBED AUTHORITY HAD DULY APPLIED ITS MIND AS REQUIRED U/S 153D OF THE A CT. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. SUFFICE TO SAY, THERE IS HARDLY ANY DISPUTE THAT THE ASSESSING OFFI CER HEREIN HAD IN FACT ASKED FOR THE JCITS APPROVAL U/S. 153D OF THE ACT BEFORE FRA MING ALL THE IMPUGNED ASSESSMENT(S). THE SOLE QUESTION OUR APT ADJUDICATI ONS WHETHER THE SAID APPROVAL DATED 28.03.2016 SATISFIES THE RELEVANT PARAMETERS SETTLED BY VARIOUS JUDICIAL PRECEDENTS OR NOT. MR. MODY AT THIS STAGE INVITES O UR ATTENTION TO CLAUSE 9 OF MANUAL OF OFFICE PROCEDURE, VOLUME-II (TECHNICAL), FEBRUARY 2003 ISSUED BY THE DIRECTORATE OF INCOME TAX ON BEHALF OF CENTRAL BOAR D OF DIRECT TAXES, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA DEALING WITH THE INSTANT ISSUE OF APPROVAL TO BE FINALIZED IN A PARTICULAR MANNER (SU PRA). HE EMPHASIZES THAT THE ACIT AS WELL AS THE JCITS ACTION UNDER CHALLENGE D OES NOT COMPLY THE PRESCRIBED PROCEDURE THEREIN. WE FIND NO MERIT IN THE INSTANT ARGUMENT SINCE SUCH A MANUAL OF OFFICE PROCEDURE IS FOR MERE INTERNAL CIRCULATIO N WHICH NOT PERTAKING THE CHARACTER OF CBDTS INSTRUCTIONS PRESCRIBED U/S 119 OF THE ACT. NOR IS THERE ANY MATERIAL TO SUGGEST THAT THIS MANUAL CONFIRMS ALL N ECESSARY CONDITIONS IN THE SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 12 1212 12 CLINCHING STATUTORY PROVISION U/S 119 OF THE ACT. T HE ASS INSTANT ARGUMENT IS REJECTED THEREFORE. 6. WE NOW ADVERT TO THE EQUALLY IMPORTANT ASPECT OF CORRECTNESS OF JCITS APPROVAL WHOSE CONTENTS STAND EXTRACTED IN PRECEDIN G PARAGRAPHS. WE WISH TO REITERATE HERE THAT THE ASSESSING AUTHORITY HAD ADM ITTEDLY SENT ITS LETTER SEEKING APPROVAL ON 28.03.2016 WHICH STOOD REPLIED BY WAY O F ALLEGED APPROVAL ON THE VERY DATE WITH CERTAIN REMARKS AT THE JCITS BEHEST (SUPRA). THIS APPROVAL MAKES IT CLEAR THAT THE ASSESSING OFFICER HAD NOT EVEN SE NT THE RELEVANT RECORDS FOR THE APPROVING AUTHORITYS APPRAISAL OF ALL THE NECESSAR Y FACTS. TRIBUNALS YET ANOTHER DECISION IN IT(SS)A NO.01/CTK/2017 GEETARANI PANDA VS. ACIT DECIDED ON 05.07.2018 EXPLAINS THE AMBIT AND SCOPE OF THE INST ANT MANDATORY REQUIREMENT OF SEC. 153D APPROVAL AS UNDER:- 4. THE COMMON GROUND NO.2 TAKEN IN BOTH THE APPEALS READS AS UNDER: THAT THE ASSESSMENT ORDER PASSED U/S.153A(A) OF TH E ACT IS NOT SUSTAINABLE IN VIEW OF THE FACT THAT THE ORDER OF ASSESSMENTS WERE APPROVED U/S.153D BY THE ACIT BEFORE COMPETITION OF THE ASSESSMENT AND, THER EFORE, THE ASSESSMENT ORDER IS LIABLE TO BE QUASHED 5. THE CIT(A) DISPOSED OF THIS ISSUE BY OBSERVING A S UNDER: THAT, THE ASSESSMENT ORDER PASSED U/S 153A(A) OF THE ACT IS NOT SUSTAINABLE IN VIEW OF THE FACT THAT THE ORDER OF ASSESSMENT WERE APPROVED U/S 153D BY THE LD. ADDL. COMMISSIONER OF INCOME TAX BEFORE COMPLETION OF THE ASSESSMENT AND THEREFORE THE ASSESSMENT ORDER IS LIABLE TO BE QUAS HED. THE GROUND OF APPEAL IS CONTESTED AS FOLLOWS:- . A. THAT AS PER THE PROVISIONS OF SECTION 153D OF TH E ACT EVERY ASSESSMENT ORDER IN SEARCH CASES ARE TO BE PASSED WITH THE PRI OR APPROVAL OF THE LD. JCIT/ADDL. CIT. IN THE INSTANT CASE AS MENTIONED IN THE BOTTOM OF THE ASSESSMENT ORDER THE APPROVAL HAD BEEN OBTAINED FRO M THE LD. ADDL. CIT ON 27.03.2015. FOR THIS PROPOSITION IT IS SUBMITTED THAT, THE AO ISSUED NOTICE U/S.142(1) ON 30.3.2015 REQUISITIONING CERTA IN DOCUMENTS, CLARIFICATIONS ETC. IF THE ASSESSMENT WAS COMPLETED PRIOR TO 27 03 2015, THEN HOW THE NOTICE U/S 142(1) WAS ISSUED ON 30.03. 2015. AS A MATTER OF FACT, NO ASSESSMENT WAS COMPLETED ON 27.03.2015 OR PRIOR TO THAT NOR ALSO ORDERS WERE APPROVED BY THE LD. ADDL. COMMISSIONER OF INCOME TAX. THEREFORE, THE ASSESSMENT ORDER PASSED WITHOUT OBTA INING THE APPROVAL FROM THE ADDL. COMMISSIONER OF INCOME TAX IS ILLEGA L AND VOID AB INITIO AND LIABLE TO BE QUASHED. B. FURTHER IT IS SUBMITTED THAT, AS PER THE PROVISI ONS OF SECTION 153D THE ACT, EVERY ASSESSMENT OR REASSESSMENT ORDER IS TO B E PASSED NOT BELOW THE RANK OF JOINT COMMISSIONER OF INCOME TAX, EXCEPT WI TH THE PRIOR APPROVAL OF THE JOINT COMMISSIONER. THAT MEANS IF AN ORDER I S NOT PASSED BY THE JOINT COMMISSIONER THEN THAT ORDER IS TO BE APPROVE D BY THE JOINT COMMISSIONER. HERE THE MEANING OF APPROVAL IS NOT S IMPLE APPROVAL OR APPROVAL OF THE ORDER IN THE MECHANICAL MANNER. THE JOINT COMMISSIONER MUST HAVE TO GO THROUGH THE SEIZED DOCUMENTS, NOTIC ES ISSUED BY THE ASSESSING OFFICER, SUBMISSIONS MADE BY THE ASSESSEE AND ALSO THE SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 13 1313 13 DOCUMENTS SUBMITTED BY THE ASSESSEE, THEN HE HAD TO APPLY HIS JUDICIOUS MIND TO ALL THE RELEVANT RECORDS AND THEN ONLY THE ORDERS CAN BE APPROVED. IN THE INSTANT CASE THE LAST NOTICES U/S 142(1) WAS ISSUED ON 30.03.2015 TO WHICH THE SUBMISSIONS WERE MADE ON 31.03.2015 AND A S MENTIONED IN THE ASSESSMENT ORDER THE ORDERS WERE APPROVED ON 27.03. 2015. SO, IT IS NOT KNOWN ON 27.03.2015, HOW THE LD. ADDL. CIT HAS APPL IED HIS MIND TO THE NOTICES ISSUED ON 30.03.2015 AND THE SUBMISSION MAD E BY THE APPELLANT ON 31.03.2015. AS A MATTER OF FACT NO ASSESSMENT ORDER WAS APPROVED BY THE LD. ADDL. CIT, THEREFORE THE ASSESSMENT ORDER PASSE D BY THE LD. ASSESSING OFFICER IS ILLEGAL AND LIABLE TO BE QUASHED. C. FURTHER IT IS SUBMITTED THAT, THE HON'BLE ITAT O F MUMBAI IN THE CASE OF 'SMT. SHREELEKHA DAM ANI VS. DY. CIT, (2015) 173 TT J 332 (MUMBAI)' IT WAS HELD THAT, 'LEGISLATIVE INTENT IS CLEAR INASMUC H AS PRIOR TO THE INSERTION OF SEC.L53D, THERE WAS NO PROVISION FOR TAKING APPR OVAL IN CASES OF ASSESSMENT AND REASSESSMENT IN CASES WHERE SEARCH H AS BEEN CONDUCTED. THUS, THE LEGISLATURE WANTED THE ASSESSMENTS/REASSE SSMENTS OF SEARCH AND SEIZURE CASES SHOULD BE MADE WITH THE PRIOR APPROVA L OF SUPERIOR AUTHORITIES WHICH ALSO MEANS THAT THE SUPERIOR AUTH ORITIES SHOULD APPLY THEIR MINDS ON THE MATERIALS ON THE BASIS OF WHICH THE OFFICER IS MAKING THE ASSESSMENT AND AFTER DUE APPLICATION OF MIND AND ON THE BASIS OF SEIZED MATERIALS, THE SUPERIOR AUTHORITIES HAVE TO APPROVE THE ASSESSMENT ORDER'. IN THE INSTANT CASE, THE LD ADDL. CIT (AS CLAIMED B Y THE LD. AO) HAS APPROVED THE ORDER PRIOR TO THE COMPLETION OF THE A SSESSMENT FROM WHICH IT CAN BE WELL CONCLUDED THAT, THE LD. ADDL. CIT HAD N OT APPLIED HIS MIND TO THE MATERIALS ON RECORD AND THEREFORE, THE ASSESSME NT ORDER IS BAD IN LAW AND LIABLE TO BE QUASHED. ON THE ABOVE GROUND IT IS PRAYED BEFORE YOUR HONOUR TO QUASH THE ASSESSMENT ORDER. DECISION :- THE SUBMISSION OF THE LD. A.R. WAS REFERRED TO T HE A.O. U/S.250(4) OF THE ACT ON 23.09.2016. IN REPLY, THE A.O. HAS GIVEN THE FOLLOWING REPLY IN LETTER DT.17.10.2016:- 'THE CONTENTION OF THE ASSESSEE THAT THE ASSESSMENT ORDERS WERE PASSED WITHOUT THE PRIOR APPROVAL OF THE ADDL. CIT IS NOT CORRECT. ASSESSMENT ORDERS HAVE BEEN PASSED WITH THE IN PRIN CIPLE APPROVAL OF THE ADDL. C.I.T. AFTER OBTAINING THE SAME AS REQ UIRED U/S.L53D OF THE I.T. ACT, 1961. THE IMMINENT ADDITIONS/DISALLOW ANCES WHICH THE ASSESSING OFFICER WAS GOING TO MAKE IN ITS ASSESSME NT ORDERS TO BE PASSED U/S.L53A(B) OF THE ACT WERE THERE IN THE PRO POSED DRAFT ASSESSMENT ORDERS. SO THE AVERMENTS OF THE ASSESSEE THAT ASSESSMENT ORDERS WERE PASSED WITHOUT OBTAINING THE APPROVAL OF THE ADDL. CIT IS ALTOGETHER MISPLACED AND INCORRECT AND NOT BORNE BY THE MATERIAL AVAILABLE ON RECORD. HENCE DESERVE TO BE DISMISSED.' THE A.O. HAS FURNISHED COPY OF THE APPROVAL LETTER OF THE ADDL.CIT, RANGE- 1, BHUBANESWAR DT.27.03.2015. THE COPY OF TH E LETTER HAS BEEN PLACED RECORD. ON PERUSAL OF THE APPROVAL LETT ER, IT IS CLEARLY EVIDENT THAT THE ADDL. C7 ASKED THE A.O. TO VERIFY OPENING BALANCE SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 14 1414 14 WITH EVIDENCE FAILING WHICH THE OPENING BALANCE MAY BE ADDED TO THE TOTAL INCOME. THEREFORE, THE A.O. ISSUED THE AL LEGED NOTICE U/S. 142(1) ASKING THE APPELLANT TO PROVE THE SAME WITH EVIDENCE. THE COUNSEL OF THE APPELLANT APPEARED IN RESPONSE TO TH E NOTICE, BUT PRODUCED NO EVIDENCE AND HENCE, THE ALLEGED ADDITIO N TO THE TOTAL INCOME WAS MADE. IN VIEW OF THE ABOVE, IT IS HELD T HAT THERE IS NO STRENGTH IN THE ARGUMENT OF THE LD. A.R. ALLEGING V IOLATION OF PROVISIONS OF SEC. 153 D OF THE ACT AND HENCE, THE GROUND OF APPEAL IS REJECTED. 6. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE ARGUED THAT SEARCH WAS CONDUCTED IN THE PREMISES OF THE ASSESSEE ON 13.12. 2012. THE ASSESSMENT ORDER UNDER SECTION 153A(B) OF THE ACT WAS PASSED ON 31.3 .2015. THE APPROVAL WAS OBTAINED FROM THE ADDL. COMMISSIONER OF INCOME TAX, RANGE-1, BHUBANESWAR ON 27.3.2015 AND FILED COPY OF THE SAME. NOTICE U/S.14 2(1) OF THE ACT WAS ISSUED ON 30.3.2015 AND REFERRED TO PAGES 15 & 16 OF PAPER BO OK, WHERE COPY OF THE SAME IS PLACED. ON THE ABOVE STATED FACTS, LD A.R. OF THE A SSESSEE SUBMITTED THAT ACCORDING TO THE PROVISIONS OF SECTION 153D OF THE ACT, NO OR DER OF ASSESSMENT OR REASSESSMENT SHALL BE PASSED BY AN ASSESSING OFFICE R BELOW THE RANK OF JOINT COMMISSIONER OF INCOME TAX IN RESPECT OF EACH ASSES SMENT YEAR REFERRED TO IN CLAUSE (B) OF SUB-SECTION(1) OF 153A EXCEPT WITH TH E PRIOR APPROVAL OF THE JOINT COMMISSIONER OF INCOME TAX. HE SUBMITTED THAT IT WI LL BE OBSERVED FROM THE ASSESSMENT ORDER DATED 31.3.2015 PASSED U/S.153A(B) IN THE CASE OF GEETARANI PANDA, THE ASSESSING OFFICER ASSESSED THE INCOME OF THE ASSESSEE AT RS.24,67,700/-, WHEREAS AS PER THE APPROVAL LETTER OF THE ADDL. COMMISSIONER OF INCOME TAX, RANGE-1, BHUBANESWAR DATED 27.3.2015, T HE INCOME ASSESSED AT RS.1,31,960/- IN THE ASSESSMENT YEAR 2007-2008 AND IN ORDER DATED 31.3.2015 IN THE CASE OF SMT. MANJUSMTA DASH, THE ASSESSING OFFI CER ASSESSED THE INCOME OF THE ASSESSEE AT RS.3,44,785/-, WHEREAS AS PER THE A PPROVAL LETTER OF THE ADDL. CIT, RANGE-1, BHUBANESWAR DATED 27.3.2015, THE INCOME AS SESSED AT RS.1,31,000/- AND, THEREFORE, THE ASSESSMENT ORDERS PASSED BY THE ASSESSING OFFICER WERE WITHOUT THE PRIOR APPROVAL OF THE ADDITIONAL CIT AN D HENCE, BAD IN LAW AND LIABLE TO BE ANNULLED. HE RELIED ON THE DECISION OF MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF SMT. SHREELEKHADAMANI VS DCIT, 173 TTJ (MUMBAI) 332 , WHEREIN, IT WAS HELD AS UNDER: 11.3 THE LEGISLATIVE INTENT IS CLEAR INASMUCH AS P RIOR TO THE INSERTION OF SEC.153D, THERE WAS NO PROVISION FOR TAKING APPROVA L IN CASES OF ASSESSMENT AND REASSESSMENT IN CASES WHERE SEARCH H AS BEEN CONDUCTED. THUS, THE LEGISLATURE WANTED THE ASSESSMENTS/REASSE SSMENTS OF SEARCH AND SEIZURE CASES SHOULD BE MADE WITH THE PRIOR APPROVA L OF SUPERIOR AUTHORITIES WHICH ALSO MEANS THAT THE SUPERIOR AUTH ORITIES SHOULD APPLY THEIR MINDS ON THE MATERIALS ON THE BASIS OF WHICH THE OFFICER IS MAKING THE ASSESSMENT AND AFTER DUE APPLICATION OF MIND AND ON THE BASIS OF SEIZED MATERIALS, THE SUPERIOR AUTHORITIES HAVE TO APPROVE THE ASSESSMENT ORDER. 11.4 THE QUESTION BEFORE US IS HAS THIS BEEN DONE IN THE PRESENT CASE. THE LANGUAGE OF THE APPROVAL LETTER SAYS NO . LET US NOW CONSIDER SOME ANALOGOUS PROVISION IN THE ACT. SEC. 142(2A): SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 15 1515 15 142(2A) IF, AT ANY STAGE OF THE PROCEEDINGS BEFORE HIM, THE ASSESSING OFFICER, HAVING REGARD TO THE NATURE AND COMPLEXITY OF THE ACCOUNTS, VOLUME OF THE ACCOUNTS, DOUBTS ABOUT THE CORRECTNES S OF THE ACCOUNTS, MULTIPLICITY OF TRANSACTIONS IN THE ACCOUNTS OR SPE CIALISED NATURE OF BUSINESS ACTIVITY OF THE ASSESSEE, AND THE INTEREST S OF THE REVENUE, IS OF THE OPINION THAT IT IS NECESSARY SO TO DO, HE MAY, WITH THE PREVIOUS APPROVAL OF THE CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR COM MISSIONER, DIRECT THE ASSESSEE TO GET THE ACCOUNTS AUDITED BY AN ACCO UNTANT, AS DEFINED IN THE EXPLANATION BELOW SUB-SECTION (2) OF SECTION 28 8, NOMINATED BY THE COMMISSIONER IN THIS BEHALF AND TO FURNISH A REPORT OF SUCH AUDIT IN THE PRESCRIBED FORM DULY SIGNED AND VERIFIED BY SUCH AC COUNTANT AND SETTING FORTH SUCH PARTICULARS AS MAY BE PRESCRIBED AND SUC H OTHER PARTICULARS AS THE ASSESSING OFFICER MAY REQUIRE. IN THIS SECTION ALSO THE AO MAY DIRECT THE ASSESSEE TO GET THE ACCOUNTS AUDITED BY AN ACCOUNTANT WITH THE PREVIOUS APPROVAL OF THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER. THIS PROV ISION HAS BEEN ELABORATELY CONSIDERED BY THE HONBLE SUPREME COURT IN THE CASE OF SAHARA INDIA VS CIT 169 TAXMAN 328 WHEREIN AT PARA- 6, THE HONBLE SUPREME COURT OBSERVED AS UNDER: A BARE PERUSAL OF THE PROVISIONS OF SUB-SECTION (2 A) OF THE ACT WOULD SHOW THAT THE OPINION OF THE ASSESSING OFFICE R THAT IT IS NECESSARY TO GET THE ACCOUNTS OF ASSESSEE AUDITED B Y AN ACCOUNTANT HAS TO BE FORMED ONLY BY HAVING REGARD TO: (I) THE NATURE AND COMPLEXITY OF THE ACCOUNTS OF THE ASSESSEE; AND (II ) THE INTERESTS OF THE REVENUE. THE WORD ' AND ' SIGNIFIES CONJUNCTION AND NOT DISJUNCTION. IN OTHER WORDS, THE TWIN CONDITIONS OF 'NATURE AND COMPLEXITY OF THE ACCOUNTS' AND ' THE INTERESTS OF THE REVENUE ' ARE THE PREREQUISITES FOR EXERCISE OF POWER UNDER SECTI ON 142(2A) OF THE ACT. UNDOUBTEDLY, THE OBJECT BEHIND ENACTING TH E SAID PROVISION IS TO ASSIST THE ASSESSING OFFICER IN FRAMING A COR RECT AND PROPER ASSESSMENT BASED ON THE ACCOUNTS MAINTAINED BY THE ASSESSEE AND WHEN HE FINDS THE ACCOUNTS OF THE ASSESSEE TO BE CO MPLEX, IN ORDER TO PROTECT THE INTERESTS OF THE REVENUE, RECOURSE T O THE SAID PROVISION CAN BE HAD. THE WORD ' COMPLEXITY ' USED IN SECTION 142(2A) IS NOT DEFINED OR EXPLAINED IN THE ACT. AS OBSERVED IN SWADESHI COTTON MILLS CO. LTD. V. CIT [1988] 171 IT R 634 1 (ALL.), IT IS A NEBULOUS WORD. ITS DICTIONARY MEANING IS: ' THE STATE OR QUALITY OF BEING INTRICATE OR COMPLEX OR THAT IS DI FFICULT TO UNDERSTAND. HOWEVER, ALL THAT IS DIFFICULT TO UNDER STAND SHOULD NOT BE REGARDED AS COMPLEX. WHAT IS COMPLEX TO ONE MAY BE SIMPLE TO ANOTHER. IT DEPENDS UPON ONES LEVEL OF UNDERSTANDI NG OR COMPREHENSION. SOMETIMES, WHAT APPEARS TO BE COMPLE X ON THE FACE OF IT, MAY NOT BE REALLY SO IF ONE TRIES TO UN DERSTAND IT CAREFULLY.' THUS, BEFORE DUBBING THE ACCOUNTS TO BE COMPLEX OR DIFFICULT TO UNDERSTAND, THERE HAS TO BE A GENUINE AND HONEST ATTEMPT ON THE PART OF THE ASSESSING OFFICER TO UND ERSTAND ACCOUNTS MAINTAINED BY THE ASSESSEE; APPRECIATE THE ENTRIES MADE THEREIN SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 16 1616 16 AND IN THE EVENT OF ANY DOUBT, SEEK EXPLANATION FRO M THE ASSESSEE. BUT OPINION REQUIRED TO BE FORMED BY THE ASSESSING OFFICER FOR EXERCISE OF POWER UNDER THE SAID PROVISION MUST BE BASED ON OBJECTIVE CRITERIA AND NOT ON THE BASIS OF SUBJECTI VE SATISFACTION. THERE IS NO GAINSAYING THAT RECOURSE TO THE SAID PR OVISION CANNOT BE HAD BY THE ASSESSING OFFICER MERELY TO SHIFT HIS RESPONSIBILITY OF SCRUTINIZING THE ACCOUNTS OF AN ASSESSEE AND PASS O N THE BUCK TO THE SPECIAL AUDITOR. SIMILARLY, THE REQUIREMENT OF PREVIOUS APPROVAL OF THE CHIEF COMMISSIONER OR THE COMMISSIO NER IN TERMS OF THE SAID PROVISION BEING AN INBUILT PROTECTION A GAINST ANY ARBITRARY OR UNJUST EXERCISE OF POWER BY THE ASSESS ING OFFICER, CASTS A VERY HEAVY DUTY ON THE SAID HIGH RANKING AU THORITY TO SEE TO IT THAT THE REQUIREMENT OF THE PREVIOUS APPROVAL, E NVISAGED IN THE SECTION IS NOT TURNED INTO AN EMPTY RITUAL. NEEDLES S TO EMPHASISE THAT BEFORE GRANTING APPROVAL, THE CHIEF COMMISSION ER OR THE COMMISSIONER, AS THE CASE MAY BE, MUST HAVE BEFORE HIM THE MATERIAL ON THE BASIS WHEREOF AN OPINION IN THIS BE HALF HAS BEEN FORMED BY THE ASSESSING OFFICER. THE APPROVAL MUST REFLECT THE APPLICATION OF MIND TO THE FACTS OF THE CASE. 11.5 THUS, EVEN THE HONBLE SUPREME COURT HAS CLEAR LY LAID DOWN THAT THE APPROVAL MUST REFLECT THE APPLICATION OF MIND TO TH E FACTS OF THE CASE. 11.6 SIMILARLY, THE HONBLE HIGH COURT OF CALCUTTA IN THE CASE OF PEERLESS GENERAL FINANCE & INVESTMENT CO. LTD. VS DCIT 236 I TR 671 HAS MADE THE FOLLOWING OBSERVATIONS WHICH ARE PERTINENT TO THE F ACTS OF THE CASE IN HAND BEFORE US. THE FACTUAL MATRIX OF THE MATTER CLEARLY SHOWS THA T A PROPOSAL WAS MADE ON MARCH 10, 1998, AND NO PRIOR APPROVAL THEREFORE WAS GRANTED BY THE CHIEF COMMISSIONER OF INCOME-TAX BUT MERELY ONE G. P. AGARWAL WAS NOMINATED. AN ARGUMENT HAS BEEN ADVANCED TO THE EFF ECT THAT BY MAKING SUCH A NOMINATION, APPROVAL WILL BE DEEMED TO HAVE BEEN GRANTED. THE ANSWER TO THE SAID CONTENTION MUST BE RENDERED IN T HE NEGATIVE. THE CHIEF COMMISSIONER OF INCOME-TAX BEFORE GRANTING SUCH APP ROVAL MUST HAVE BEFORE HIM THE MATERIALS ON THE BASIS WHEREOF AN OP INION HAD BEEN FORMED. A PRIOR APPROVAL CAN BE GRANTED ONLY WHEN T HE MATERIALS FOR APPOINTMENT OF THE EXTRAORDINARY PROCEDURE IS REQUI RED TO BE TAKEN BY THE ASSESSING OFFICER. THE ASSESSING OFFICER, THEREFORE , WAS REQUIRED TO PLACE ALL MATERIALS BEFORE THE COMMISSIONER OF INCOME-TAX OR THE CHIEF COMMISSIONER OF INCOME- TAX, AS THE CASE MAY BE, TO SHOW THAT HE INTENDS TO TAKE RECOURSE TO THE SAID PROVISION HAVING REGAR D TO THE NATURE AND COMPLEXITY OF THE ACCOUNTS OF THE ASSESSEE AND THE INTERESTS OF THE REVENUE. NO SUCH MATERIALS HAD BEEN PLACED BEFORE THE CHIEF COMMISSIONER OF INCOME-TAX. IT FURTHER APPEARS THAT EVEN NO PREVIOU S APPROVAL WAS SOUGHT FOR BUT MERELY A PROPOSAL WAS PLACED FOR PERUSAL OF THE CHIEF COMMISSIONER OF INCOME-TAX AND FOR APPOINTMENT OF A SPECIAL AUDITOR. THE CHIEF COMMISSIONER OF INCOME-TAX, THEREFORE, DID NO T APPLY HIS MIND AT ALL AS REGARDS THE PREREQUISITE FOR GRANT OF PREVIOUS A PPROVAL AND SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 17 1717 17 MECHANICALLY APPOINTED SRI G. P. AGARWAL, AS A SPEC IAL AUDITOR. THE SAID ORDER DEPICTS A TOTAL NON-APPLICATION OF MIND ON TH E PART OF THE ASSESSING OFFICER AS ALSO THE CHIEF COMMISSIONER OF INCOME-TA X. 11.7. ANOTHER SECTION RELEVANT TO THE FACTS IN ISSU E IS SEC. 158BG WHICH READ AS UNDER: THE ORDER OF ASSESSMENT FOR THE BLOCK PERIOD SHALL BE PASSED BY AN ASSESSING OFFICER NOT BELOW THE RANK OF AN ASSISTAN T COMMISSIONER OR DEPUTY COMMISSIONER OR AN ASSISTANT DIRECTOR OR DEP UTY DIRECTOR, AS THE CASE MAY BE: PROVIDED THAT NO SUCH ORDER SHALL BE P ASSED WITHOUT THE PREVIOUS APPROVAL OF (A) THE COMMISSIONER OR THE DIRECTOR, AS THE CASE M AY BE, IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OR BOOKS OF ACCO UNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION 132A, AFT ER THE 30TH DAY OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF JANUARY, 1997; (B) THE JOINT COMMISSIONER OR THE JOINT DIRECTOR, A S THE CASE MAY BE, IN RESPECT OF SEARCH INITIATED UNDER SECTION 132 OR BO OKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS REQUISITIONED UNDER SECTION 132A, ON OR AFTER THE 1ST DAY OF JANUARY, 1997. 11.8. IN THIS SECTION ALSO IT IS PROVIDED THAT THE ORDER CANNOT BE PASSED WITHOUT THE PREVIOUS APPROVAL. THIS SECTION WAS THOROUGHLY SCRU TINIZED BY THE TRIBUNAL MADRAS BENCH IN THE CASE OF KIRTILAL KALIDAS & CO. VS DCIT 67 ITD 573, AT PARA-41 OF ITS ORDER THE OBSERVATIONS OF THE TRIBUN AL ARE AS UNDER: IN THESE CASES, THE COMMISSIONER HAS PASSED AN ORD ER GRANTING APPROVAL UNDER SECTION 158BG OF THE ACT THROUGH A SINGLE ORD ER PASSED ON 31-3- 1997 WITHOUT GIVING ANY REASON WHATSOEVER. AS WE HA VE RECORDED ELSEWHERE ABOVE, THE DRAFT ASSESSMENT ORDERS OF THE BLOCK PERIOD IN ALL THESE CASES WERE MADE ON 31-3-1997 AND ON THE VERY SAME DAY, I.E., ON 31- 3-1997 THE COMMISSIONER GRANTS APPROVAL AND THAT TO O WITHOUT GIVING OR RECORDING ANY REASONS WHATSOEVER. THE APPROVAL ORDE R DOES NOT DISCLOSE THE POINTS WHICH WERE CONSIDERED BY THE COMMISSIONE R AND THE REASONS FOR ACCEPTING THEM. IN OUR VIEW, THIS IS TOTALLY AN UNSATISFACTORY METHOD OF GRANTING APPROVAL IN EXERCISE OF JUDICIAL POWER VES TED IN THE COMMISSIONER. 11.9. THIS DECISION OF THE TRIBUNAL WAS CONSIDERED BY ALLAHABAD BENCH OF THE TRIBUNAL IN THE CASE OF VERMA ROADWAYS VS ACIT 75 I TD 183 WHEREIN ALSO THE ASSESSEE- APPELLANT HAS CHALLENGED THE VALIDITY OF APPROVAL TO THE ASSESSMENT ORDER ACCORDED BY THE CIT KANPUR. THE TRIBUNAL AT P ARA-47 HAS HELD AS UNDER: COMING TO THE ASPECT OF THE APPLICATION OF MIND, W HILE GRANTING APPROVAL, WE ARE OF THE VIEW THAT REQUIREMENT OF AP PROVAL PRESUPPOSES A PROPER AND THOROUGH SCRUTINY AND APPLICATION OF MIN D. IN THE CASE OF KIRTILAL KALIDAS & CO. (SUPRA), THE I.T.A.T MADRAS BENCH A HAS OBSERVED THAT THE FUNCTION TO BE PERFORMED BY THE C OMMISSIONER IN GRANTING PREVIOUS APPROVAL REQUIRES AN ENQUIRY AND JUDICIAL APPROACH ON THE ENTIRE FACTS, MATERIALS AND EVIDENCE. IT HAS BE EN FURTHER OBSERVED THAT SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 18 1818 18 IN LAW WHERE ANY ACT OR FUNCTION REQUIRES APPLICATI ON OF MIND AND JUDICIAL DISCRETION OR APPROACH BY ANY AUTHORITY, IT PARTAKE S AND ASSUMES THE CHARACTER AND STATUS OF A JUDICIAL OR AT LEAST QUAS I-JUDICIAL ACT, PARTICULARLY BECAUSE THEIR ACT, FUNCTION, IS LIKELY TO AFFECT THE RIGHTS OF AFFECTED PERSONS. 11.10. SIMILARLY, U/S. 151 OF THE ACT IT IS PROVIDE D THAT NO NOTICE SHALL BE ISSUED U/S. 148 UNLESS THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER IS SATISFIED THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE. THE SANCTION UNDER THIS SECTI ON WAS CONSIDERED BY THE TRIBUNAL, MUMBAI BENCH IN THE CASE OF SHRI AMARLAL BAJAJ IN ITA NO. 611/M/2004 WHEREIN AT PARA-8, THE TRIBUNAL HAS CONS IDERED THE DECISION OF THE HONBLE HIGH COURT OF DELHI BENCH IN THE CASE OF UN ITED ELECTRICAL CO. 258 ITR 317 WHICH READ AS UNDER: HONBLE DELHI HIGH COURT IN THE CASE OF UNITED ELE CTRICAL CO. PVT. LTD. VS CIT 258 ITR 317 HAS HELD THAT THE PROVISO TO SUB-SECTI ON (1) OF SECTION151OF THE ACT PROVIDES THAT AFTER THE EXPIRY OF FOUR YEARS FROM T HE END OF THE RELEVANT ASSESSMENT YEAR, NOTICE UNDER SECTION 148 SHALL NOT BE ISSUED UNLESS THE CHIEF COMMISSIONER OR THE COMMISSIONER, AS THE CASE MAY BE, IS SATISFI ED, ON THE REASONS RECORDED BY THE ASSESSING OFFICER CONCERNED, THAT IT IS A FIT C ASE FOR THE ISSUE OF SUCH NOTICE. THESE ARE SOME IN-BUILTS SAFEGUARDS TO PREVENT ARBI TRARY EXERCISE OF POWER BY AN ASSESSING OFFICER TO FIDDLE WITH THE COMPLETED ASSE SSMENT. THE HONBLE HIGH COURT FURTHER OBSERVED THAT WHAT DISTURBS US MORE IS THAT EVEN THE ADDITIONAL COMMISSIONER HAS ACCORDED HIS APPROVAL FOR ACTION U NDER SECTION 147 MECHANICALLY. WE FEEL THAT IF THE ADDITIONAL COMMIS SIONER HAD CARED TO GO THROUGH THE STATEMENT OF THE SAID PARTIES, PERHAPS HE WOULD NOT HAVE GRANTED HIS APPROVAL, WHICH WAS MANDATORY IN TERMS OF THE PROVI SO TO SUB-SECTION (1) OF SECTION 151 OF THE ACT AS THE ACTION UNDER SECTION 147 WAS BEING INITIATED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT A SSESSMENT YEAR. THE POWER VESTED IN THE COMMISSIONER TO GRANT OR NOT TO GRANT APPROVAL IS COUPLED WITH A DUTY. THE COMMISSIONER IS REQUIRED TO APPLY HIS MIN D TO THE PROPOSAL PUT UP TO HIM FOR APPROVAL IN THE LIGHT OF THE MATERIAL RELIE D UPON BY THE ASSESSING OFFICER. THE SAID POWER CANNOT BE EXERCISED CASUALLY AND IN A ROUTINE MANNER. WE ARE CONSTRAINED TO OBSERVE THAT IN THE PRESENT CASE THE RE HAS BEEN NO APPLICATION OF MIND BY THE ADDITIONAL COMMISSIONER BEFORE GRANTING THE APPROVAL. 12. COMING TO THE FACTS OF THE CASE IN HAND IN THE LIGHT OF THE ANALYTICAL DISCUSSION HEREINABOVE AND AS MENTIONED ELSEWHERE, THE ADDL. C OMMISSIONER HAS SHOWED HIS INABILITY TO ANALYZE THE ISSUES OF DRAFT ORDER ON M ERIT CLEARLY STATING THAT NO MUCH TIME IS LEFT, INASMUCH AS THE DRAFT ORDER WAS PLACE D BEFORE HIM ON 31.12.2010 AND THE APPROVAL WAS GRANTED ON THE VERY SAME DAY. CONS IDERING THE FACTUAL MATRIX OF THE APPROVAL LETTER, WE HAVE NO HESITATION TO HOLD THAT THE APPROVAL GRANTED BY THE ADDL. COMMISSIONER IS DEVOID OF ANY APPLICATION OF MIND, IS MECHANICAL AND WITHOUT CONSIDERING THE MATERIALS ON RECORD. IN OUR CONSIDERED OPINION, THE POWER VESTED IN THE JOINT COMMISSIONER/ADDL COMMISSIONER TO GRANT OR NOT TO GRANT APPROVAL IS COUPLED WITH A DUTY. THE ADDL COMMISSIO NER/JOINT COMMISSIONER IS REQUIRED TO APPLY HIS MIND TO THE PROPOSALS PUT UP TO HIM FOR APPROVAL IN THE LIGHT OF THE MATERIAL RELIED UPON BY THE AO. THE SAID POW ER CANNOT BE EXERCISED SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 19 1919 19 CASUALLY AND IN A ROUTINE MANNER. WE ARE CONSTRAINE D TO OBSERVE THAT IN THE PRESENT CASE, THERE HAS BEEN NO APPLICATION OF MIND BY THE ADDL. COMMISSIONER BEFORE GRANTING THE APPROVAL. THEREFORE, WE HAVE NO HESITATION TO HOLD THAT THE ASSESSMENT ORDER MADE U/S. 143(3) OF THE ACT R.W. S EC. 153A OF THE ACT IS BAD IN LAW AND DESERVES TO BE ANNULLED. THE ADDITIONAL GRO UND OF APPEAL IS ALLOWED. 13. THE LD. DEPARTMENTAL REPRESENTATIVE HAS STRONGL Y RELIED UPON THE DECISION OF THE TRIBUNAL MUMBAI BENCH IN THE CASE OF RAFIQUE AB DUL HAMID KOKANI VS DCIT 113 TAXMAN 37, HONBLE HIGH COURT OF KARNATAKA IN T HE CASE OF RISHABCHAND BHANSALI VS DCIT 136 TAXMAN 579 AND HONBLE HIGH CO URT OF MADRAS IN THE CASE OF SAKTHIVEL BANKERS VS ASSTT. COMMISSIONER 12 4 TAXMAN 227. 13.1. WE HAVE CAREFULLY PERUSED THE DECISIONS PLACE D ON RECORD BY THE LD. DR. WE FIND THAT ALL THE DECISIONS RELIED UPON BY THE LD. DR ARE MISPLACED INASMUCH AS ALL THESE DECISIONS RELATE TO THE ISSUE WHETHER THE JOINT CIT/CIT HAS TO GIVE AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE G RANTING THE APPROVAL. THIS IS NOT THE ISSUE BEFORE US AS THE LD. COUNSEL HAS NEVE R ARGUED THAT THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY OF BEING HEARD. THESE DEC ISIONS THEREFORE WOULD NOT DO ANY GOOD TO THE REVENUE. 7. FURTHER, HE RELIED ON THE DECISION OF JODHPUR BE NCH OF THE TRIBUNAL IN THE CASE OF SMT. INDRA BANSAL &ORS VS ACIT, (2018) 192 TTJ ( JD) 968, WHEREIN, IT WAS HELD AS UNDER: 6.4 COMING TO THE FACTS OF THE CASE, IT IS APPAREN T FROM THE DOCUMENTS ON RECORD THAT THE APPROVAL WAS GIVEN BY THE JT. CIT IN HASTY MANNER WITHOUT EVEN GOING THROUGH THE RECORDS AS THE RECORDS WERE IN JODHPUR WHILE THE JT CIT WAS CAMPING AT UDAIPUR. THE ENTIRE EXERCISE OF SEEKING AND GRAN TING OF APPROVAL IN ALL THE 22 CASES WAS COMPLETED IN ONE SINGLE DAY ITSELF I.E. 3 1ST MARCH, 2013. THUS, IT IS APPARENT THAT THE JCIT DID NOT HAVE ADEQUATE TIME T O APPLY HIS MIND TO THE MATERIAL ON THE BASIS OF WHICH THE AO HAD MADE THE DRAFT ASSESSMENT ORDERS. TRIBUNAL, MUMBAI BENCH AND TRIBUNAL ALLAHABAD BENCH IN THEIR ORDERS, AS DISCUSSED IN THE PRECEDING PARAGRAPHS, HAVE LAID DO WN THAT THE POWER TO GRANT APPROVAL IS NOT TO BE EXERCISED CASUALLY AND IN ROU TINE MANNER AND FURTHER THE CONCERNED AUTHORITY, WHILE GRANTING APPROVAL, IS EX PECTED TO EXAMINE THE ENTIRE MATERIAL BEFORE APPROVING THE ASSESSMENT ORDER. IT HAS ALSO BEEN LAID DOWN THAT WHENEVER ANY STATUTORY OBLIGATION IS CAST UPON ANY AUTHORITY, SUCH AUTHORITY IS LEGALLY REQUIRED TO DISCHARGE THE OBLIGATION BY APP LICATION OF MIND. IN ALL THE CASES BEFORE US, THE DEPARTMENT COULD NOT DEMONSTRA TE, BY COGENT EVIDENCE, THAT THE JT. CIT HAD ADEQUATE TIME WITH HIM SO AS TO GRA NT APPROVAL AFTER DULY EXAMINING THE MATERIAL PRIOR TO APPROVING THE ASSES SMENT ORDER. THE CIRCUMSTANCES INDICATE THAT THIS EXERCISE WAS CARRI ED OUT BY THE JT. CIT IN A MECHANICAL MANNER WITHOUT PROPER APPLICATION OF MIN D. ACCORDINGLY, RESPECTFULLY FOLLOWING THE RATIO OF THE CO-ORDINATE BENCHES OF M UMBAI AND ALLAHABAD AS AFOREMENTIONED AND ALSO APPLYING THE RATIO OF THE J UDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF SAHARA INDIA (FIRM) VS. CIT (S UPRA), WE HOLD THAT THE JT. CIT HAS FAILED TO GRANT APPROVAL IN TERMS OF S. 153D OF THE ACT I.E., AFTER APPLICATION OF MIND BUT HAS RATHER CARRIED OUT EXERCISE IN UTMOST HASTE AND IN A MECHANICAL MANNER AND, THEREFORE, THE APPROVAL SO GRANTED BY H IM IS NOT AN APPROVAL WHICH SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 20 2020 20 CAN BE SUSTAINED. ACCORDINGLY, ASSESSMENTS IN THREE COS AND NINETEEN APPEALS OF THE ASSESSEE(S), ON IDENTICAL FACTS, ARE LIABLE TO BE ANNULLED AS SUFFERING FROM THE INCURABLE DEFECT OF THE APPROVAL NOT BEING PROPER. ACCORDINGLY, WE ANNUL THE ASSESSMENT ORDERS IN CO NOS. 8 TO 10/JODH/2016 AND ITA NOS. 325 TO 331/JODH/2016. THUS, ALL THE THREE COS AND THE NINE TEEN APPEALS OF THE ASSESSEE, AS AFORESAID, ARE ALLOWED. 8. ON THE OTHER HAND, LD D.R. ARGUED AND SUBMITTED THAT ON PERUSAL OF LETTER OF ADDL. COMMISSIONER OF INCOME TAX DATED 27.3.2015 IN PARA 7, HE HAS OBSERVED AS UNDER: SMT. GEETARANI PANDA A.Y. 2007-08 :- BROADLY SPEAKING, LIKE THE CASE OF SMT. MANJUSMITA DASH, THIS ALSO APPEARS TO BE THE CASE OF CAPITAL BUILDING WHERE THE ASSESSEE HAS DECLARED INCOME OF RS. 87,200/- AS MISC. INCOME, WHICH IS NOT VERIFIABLE A ND THE ENTIRE RECEIPTS ALONGWITH OPENING CAPITAL HAVE BEEN SHOWN AS CASH IN HAND. A PERUSAL OF THE BALANCE SHEET OF THE ASSESSEE SHOW S AN OPENING CAPITAL OF RS.23,35,735/-, MOST OF WHICH IS IN CASH. THE CAPIT AL AS ON 31ST MARCH, 2007 HAS BEEN SHOWN AT RS. 24,22,099/-, OUT WHICH RS. 16,35, 201.65 HAS BEEN SHOWN AS CASH IN HAND WITH RS. 28,897.35 AS CASH AT BANK. BE SIDES, INVESTMENT OF RS. 4 LACS IN FIXED DEPOSITS AND RS. 3 LACS IN MIS IN POST OFF ICE HAS BEEN SHOWN. THIS APPEARS QUITE UNUSUAL AS THE ASSESSEE WAS MAINTAINI NG BANK ACCOUNT WITH PUNJAB NATIONAL BANK. NO PRUDENT PERSON WOULD KEEP SUCH A BIG CASH AMOUNT IN HIS HAND DESPITE HAVING A BANK ACCOUNT. FURTHER YOU SHOULD EXAMINE THE OPENING CASH IN HAND AND ASK THE ASSESSEE TO FURNISH EVIDENCE IN SUPPORT OF IT FAILING WHICH THI S OPENING CASH IN HAND MAY BE ADDED TO THE TOTAL INCOME OF THE ASSESSEE. 9. LD D.R. SUBMITTED THAT THE ADDL. CIT, RANGE-1, B HUBANESWAR HAS GONE THROUGH THE SEIZED MATERIALS AND AFTER THAT HAS GIVEN APPRO VAL TO THE ORDER OF THE ASSESSING OFFICER AND WHILE DOING SO, HE HAS DIRECT ED THE ASSESSING OFFICER TO EXAMINE THE OPENING CASH IN HAND BEFORE DETERMINING THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSING OFFICER AFTER EXAMINING THE SAME AS PER THE DIRECTION OF THE ADDL. CIT HAS PASSED THE ASSESSMENT ORDER. HENC E, IT IS WRONG TO SAY THAT THE ORDER OF THE ASSESSING OFFICER IS NOT APPROVED BY T HE ADDITIONAL CIT IN VIEW OF THE PROVISIONS OF SECTION 153D OF THE ACT. 10. HE FURTHER ARGUED AND SUBMITTED THAT THE CASE L AWS RELIED UPON BY LD A.R. OF THE ASSESSEE ARE NOT APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE AS IN THOSE CASES, THE APPROVAL WAS GRANTED BY THE JT. CIT ON T HE VERY DAY OF RECEIPT OF THE DRAFT ORDER FROM THE ASSESSING OFFICER, WHICH IS NO T THE CASE AT HAND, WHEREIN, THE DRAFT ORDERS WERE RECEIVED BY THE JT. CIT FOUR DAYS PRIOR TO THE GRANT OF APPROVAL. 11. IN THE REJOINDER, LD A.R. OF THE ASSESSEE SUBMI TTED THAT A READING OF THE FIRST, SECOND AND THIRD PARAS OF THE ADDL. CIT OF HIS LETT ER DATED 27.3.2015 READ AS UNDER: 'DESPITE A REMINDER GIVEN ON 19TH MARCH, 2015 TO SU BMIT THE TIME BARRING DRAFT ASSESSMENT ORDERS FOR APPROVAL U/S. 153D ON O R BEFORE 23.03.2015, SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 21 2121 21 THE DRAFT ORDERS IN M/S. NEELACHAL CARBO METALICKS PVT. LTD. GROUP OF CASES HAS BEEN RECEIVED IN THIS OFFICE ONLY ON TILL 26TH MARCH, 2015 IN THE AFTERNOON. THE DRAFT ORDERS HAVING BEING SUBMITTED ONLY 5 DAYS BEFORE FINAL ORDERS ARE GETTING BARRED BY LIMITATION,, I H AVE NO OTHER OPTION BUT TO ACCORD THE APPROVAL TO THE SAME AS THE APPROVAL IS STATUTORILY REQUIRED U/S. 153D, EVEN THOUGH THERE IS NO TIME LEFT FOR UNDERSI GNED TO ENSURE THAT ALL THE POINTS RAISED IN THE APPRAISAL REPORT, THE APPE LLATE PROCEEDINGS, AUDIT INSPECTION ETC. ARE DULY TAKEN INTO ACCOUNT, AND TH E ENQUIRIES AND INVESTIGATIONS THAT ARE REQUIRED TO BE MADE ARE ACT UALLY MADE BEFORE FINALIZATION OF THE ASSESSMENT ORDERS. IT WOULD HAVE BEEN MUCH BETTER AND IN THE INTEREST OF REVENUE, IF YOU HAD SUBMITTED THE DRAFT ORDERS ATLEAST ONE MONTH EARLIE R SO AS TO ALLOW THE UNDERSIGNED SOMETIME TO GO THROUGH AND ANALYSE THE SAME VIS-A-VIS THE APPRAISAL REPORT AND SEIZED RECORDS. IT ALSO GOES W ITHOUT SAYING THAT YOU NEVER CARED EVEN TO DISCUSS THESE CASES WITH THE UN DERSIGNED FOR GUIDANCE AND LINE OF INVESTIGATION TO BE TAKEN. HOWEVER, DES PITE ALL THIS, I HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORDS AND SOME OF THE OBSERVATIONS, IN RESPECT OF THE FOLLOWING CASES ARE GIVEN IN SUBSEQU ENT PARAS. 12. LD A.R. SUBMITTED THAT THE READING OF THE SAME WILL SHOW THAT THERE WAS NO APPLICATION OF MIND DUE TO SHORTAGE OF TIME BY THE ADDITIONAL CIT GRANTING APPROVAL TO THE DRAFT ASSESSMENT ORDER BY THE ASSES SING OFFICER. 13. IN REPLY TO THE SAME, LD D.R. SUBMITTED THAT TH E READING OF PARA 7 OF THE ORDER WILL SHOW THAT THE ADDL. CIT HAS APPLIED HIS MIND A ND GRANTED NECESSARY APPROVAL TO EXAMINE THE CASH IN HAND BEFORE PASSING THE ASSE SSMENT ORDER. HE ARGUED THAT THE SAID DETAILS SHOW THAT THOUGH THERE WAS SHORTAG E OF TIME, THE ADDL. CIT HAS APPLIED HIS MIND BEFORE GRANTING APPROVAL TO THE AS SESSMENT ORDER BY BURNING THE MIDNIGHT ORDER. 14. THE COMMON GROUND NO.4 IN BOTH THE APPEALS READ S AS UNDER: THAT THE ASSESSMENT ORDER PASSED U/S.153A(A) ARE B ARRED BY LIMITATION AND LIABLE TO BE QUASHED. 15. THE CIT(A) HAS DISPOSED OF THIS ISSUE BY OBSERV ING AS UNDER: THAT, THE ASSESSMENT ORDER PASSED U/S 153A(A) IS B ARRED : LIMITATION AND LIABLE TO BE QUASHED. THE GROUND OF APPEAL IS CONTE STED AS FOLLOWS:- A. THAT, IN THE INSTANT CASE AS IT IS POINTED OUT I N THE ASSESSMENT ORDER, IT HAD BEEN PASSED ON 31.03.2015. FOR THIS PROPOSITION IS IT TO BRING TO YOUR KIND NOTICE THAT, THE NOTICE U/S 142(1) WAS ISSUED AND SERVED ON THE APPELLANT ON 30.03.2015 TO WHICH THE HEARING WAS FI XED ON 31.03.2015. ON 31.03.2015, THE A/R OF THE APPELLANT APPEARED AND F ILED THE REQUIRED DOCUMENTS, EXPLANATIONS AND NECESSARY WRITTEN SUBMI SSION. AS PER THE PROVISIONS OF THE ACT AFTER GETTING OF THE DOCUMENT S, SUBMISSIONS ETC THE LD ASSESSING OFFICER APPLIED HIS JUDICIOUS MIND AND TH EN PREPARE THE DRAFT ORDER WHICH WERE SENT TO THE LD. ADDL. CIT WHO HAD GONE THROUGH THE SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 22 2222 22 SEIZED MATERIALS/DOCUMENTS, NOTICES ISSUED BY THE L D. ASSESSING OFFICER, DOCUMENTS AND SUBMISSIONS SUBMITTED BY THE APPELLAN T AND AFTER BEING SATISFIED WITH ALL THESE, HE HAD GIVEN THE APPROVAL OF THE ORDERS AND ONLY THEREAFTER THE FINAL ORDER CAME OUT AND UPLOADED BY THE LD. 'ASSESSING OFFICER. HUMANLY ALL THESE ACTIVITIES ARE NOT POSSI BLE WITHIN ONE DAY. MOREOVER FROM THE SYSTEM, IT CAN BE VERIFIED THAT, THE ASSESSMENT ORDER PASSED BY THE LD. ASSESSING OFFICER WERE NOT UPLOAD ED WHICH AGAIN PROVE THAT, THE ASSESSMENT ORDERS WERE NOT PASSED WITHIN THE DUE DATE, OTHERWISE WHAT PREVENTED HIM TO UPLOAD THE ASSESSMENT ORDERS. SO IT IS CLEAR THAT THE ORDER WERE NEVER BEEN PASSED ON 31.03.2015, RATHER IT HAD BEEN PASSED AFTER THE EXPIRY OF THE DUE DATE AND BACK DATED. TH EREFORE THE ASSESSMENT ORDERS ARE BARRED BY LIMITATION AND LIABLE TO BE QU ASHED. B. FURTHER IT IS SUBMITTED THAT, AS PER THE PROVISI ONS OF THE ACT, ONCE THE ASSESSMENT ORDERS ARE PASSED THEY SHOULD BE IMMEDIA TELY SENT TO THE DISPATCH SECTION FOR DISPATCH OF THE ORDERS. IN THE INSTANT CASE INSTEAD OF SENDING THE ORDERS TO THE DISPATCH SECTION THE LD. ASSESSING PREFER TO CALL THE A/R AND HANDED OVER THE ORDERS ON 08.04.2015. A GAIN QUESTION ARISES IF THE ORDERS WERE PASSED ON 31.03.2015 WHY THE ORD ERS WERE NOT SENT TO DISPATCH SECTION OR HANDED OVER TO THE APPELLANT ON THE SAME DAY OR IN THE IMMEDIATE NEXT DAY. BUT AS A MATTER OF FACT THE ORD ERS WERE NEVER PASSED WITHIN THE DUE DATE, THEY ARE BACK DATED. HENCE THE ASSESSMENT ORDERS ARE BARRED BY LIMITATION AND LIABLE TO BE QUASHED. C. FURTHER IT IS. SUBMITTED THAT, AS CLAIMED/DATED (PURPORTED) THE ASSESSMENT ORDER WAS PASSED ON 31ST MARCH 2015, BUT IT HAS NOT BEEN DISPATCHED/ SENT FOR SERVICE WITHIN THE LIMITATION, A LEGAL PRESUMPTION ARISES THAT THE ORDER WAS NOT PASSED WITHIN THE LIM ITATION AND THEREFORE, TO REBUT THE LEGAL PRESUMPTION, AND IT IS SO BECAUSE, THE LAW IN THIS RESPECT IS THAT THE ORDER SHOULD NOT LOOK ONLY TO HAVE BEEN MA DE WITHIN LIMITATION, IT SHOULD BE OUT OF REACH OF THE AUTHORITY MAKING THE ASSESSMENT ORDER WITHIN THE LIMITATION. FOR THIS FINDING THE RELIANCE MAY B E PLACED ON B.J.SHELAT VS. STATE OF GUJRAT; AIR 1978 SC1109. IN THIS CASE THE HON'BLE SUPREME COURT HAS HELD AS FOLLOWS:- 'THE ORDER OF ANY AUTHORITY 'CANNOT BE SAID TO BE P ASSED UNLESS IT IS IN SOME WAY PRONOUNCED OR PUBLISHED OR THE PARTY AFFEC TED HAS A MEANS OF KNOWING IT. IT IS NOT ENOUGH IF THE ORDER IS MADE, SIGNED AND KEPT IN THE FILE, BECAUSE SUCH ORDER MAY BE LIABLE TO CHANGE AT THE HANDS OF THE AUTHORITY WHO MAY MODIFY IT, OR EVEN DESTROY IT, BE FORE IT IS MADE KNOWN, BASED ON SUBSEQUENT INFORMATION, THINKING, OR CHANG E OF OPINION. TO MAKE THE ORDER COMPLETE AND EFFECTIVE, IT SHOULD BE ISSU ED, SO AS TO BE BEYOND THE CONTROL OF THE AUTHORITY CONCERNED, FOR ANY POS SIBLE CHANGE OR MODIFICATION THEREIN. THIS SHOULD BE DONE WITHIN TH E PRESCRIBED PERIOD, THOUGH THE ACTUAL SERVICE OF THE ORDER MAY BE BEYON D THAT PERIOD.' D. FURTHER IT IS SUBMITTED THAT, THE HON'BLE JURISD ICTIONAL ITAT RESPECTFULLY FOLLOWING THE AFORESAID DECISION IN THE CASE OF ACI T, CIRCLE-2(2) VS. SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 23 2323 23 ORISSA STEVEDORES LTD. VIDE ITA NO.409-411/2011 & C O NO.30- 32/CTK/2011, IT WAS HELD THE COMMUNICATION IS CONDI TION PRECEDENT TO AN ORDER OF ASSESSMENT BECOMING EFFECTIVE. E. RECENTLY THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF 'COMMISSIONER OF INCOME TAX AND OTHERS VS. B J N HO TELS LTD. (2016), 382 ITR 110 (KAR)' IT WAS HELD THAT, TO MAKE AN ORD ER EFFECTIVE THE REVENUE HAS TO DISPATCH THE ORDER WITHIN THE DUE DA TE, I.E. IN THE INSTANT CASE IT SHOULD BE DISPATCHED ON OR BEFORE 31.03.201 5 WHICH HAD NOT BEEN DONE. THEREFORE THE ORDERS ARE BARRED BY LIMITATION . F. FURTHER, IT IS SUBMITTED THAT, THE ASSESSMENT OR DER WAS SERVED ON THE APPELLANT BY HAND ON 8TH OF APRIL, 2015 WHICH ALSO PROVES THAT THE ORDER WAS NEVER DISPATCHED OR 'SENT BY ANY OTHER SPECIFIE D MODE. THEREFORE THE ASSESSMENT ORDER IS BARRED BY LIMITATION AND LIABLE TO BE QUASHED. SIMILAR VIEW WAS ALSO EXPRESSED IN THE FOLLOWING RATIOS: SHANTI LAL GOD AW AT & ORS VS. ASSISTANT COMMISSION ER OF INCOME TAX, (2009) 126 TTJ (JD) 135 COMMISSIONER OF INCOME TAX VS. PURSHOTTAMDAS T. PAT EL, (1994) 120 CTR (CUJ) 332 : (1994) 209 ITR 52 (GUJ) JIFFIR AND KAREEM VS. AGRICULTURAL INCOME TAX OFFIC ER & ANR., (1999) 240 ITR 587 (KER) ON THE ABOVE GROUND IT IS SUBMITTED THAT, THE ASSES SMENT ORDER PASSED BY THE LD AO IS BARRED BY LIMITATION AND LIABLE TO BE QUASHED. DECISION:- SUBMISSION MADE BY THE LD. A.R. WAS CONS IDERED CAREFULLY WITH REFERENCE TO MATERIAL AVAILABLE ON RECORD AND THE O BSERVATION/FINDINGS MADE ARE ENUMERATED HEREUNDER:- (I) THE SUBMISSION OF THE LD. A.R. WAS REFERRED TO THE A.O. U/S.25 ACT ON 23.09.2016. IN REPLY, THE A.O. HAS GIVEN THE FOLLOW ING REPLY DT.17.10.2016:- 'THE AUTHORIZED REPRESENTATIVE (A.R.) AFTER BEING A PPOINTED BY THE ASSESS- , ACT SO ARE NOT ONLY TO PLEAD OR ARGUE THE CASE BE FORE THE A.O. IN ORDER TO ACT ON BEHALF, THE ASSESSEE A.R. A POWER OF ATTORNE Y (POA) HAS BEEN SUBMITTED AT THE OUT SET OF THE CASE. THAT POA AUTH ORIZES THE A.R. TO TAKE COPIES OF THE ASSESSMENT ORDERS. THAT POA ALSO AUTH ORIZES THE A.O. TO GET THE ASSESSMENT ORDER(S) SERVED ON THE ASSESSEE THRO UGH HIS/HER A.R. BEING IT A GROUP CASE ALL ASSESSMENT ORDERS AFTER THE SCR UTINY PROCEEDINGS BEING COMPLETED, HAVE BEEN SERVED ON THE ASSESSEE THROUGH HER A.R. ON 08.04.2015AND THE RECEIPT OF THE ORDERS HAS BEEN DU LY ACKNOWLEDGED BY THE A.R. ALSO. THE, SCRUTINY PROCEEDINGS WERE COMPL ETED BY 31.03.20,15 AND ASSESSMENT ORDERS HAVE BEEN SERVED ON 08.04.201 5. NO INORDINATE DELAY HAS HAPPENED. WHEN THE A.R. IS READY TO ACT I N EVERY RESPECTS [INCLUDING APPLYING FOR REFUND AND RECEIVING THE RE FUND VOUCHERS] ON SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 24 2424 24 BEHALF OF THE ASSESSEE THROUGH THE POA AND AS STATE D ABOVE THE A.R. ALSO DID NOT OBJECT AT THE - INSTANT TO RECEIVE THE ASSE SSMENT ORDER SERVING OF ASSESSMENT ORDER (S) WHICH RESULTED IN DEMAND BY HA ND DID NOT VIOLATE ANY RULE. ' (II). IT IS NOWHERE MENTIONED IN THE STATUTE THAT T HE ASSESSMENT ORDER WOULD HAVE TO BE SERVED ON THE ASSESSEE. AIL THAT IS REQU IRED IS THAT THE NOTICE OF DEMAND SPECIFYING THE SUM PAYABLE SHOULD BE SERVED ON THE ASSESSEE IN THE PRESCRIBED FORM AND WOULD BE ACCOMPANIED BY AN ASSESSMENT AS HELD IN THE CASE OF CIT VS. KAILASHO DEVI BURMAN (1978) 115 ITR 732 (CAL.,) SIVALINGAMCHETTIAR (VS) VS. CIT (1966) 62 ITR 678 ( MAD.), KALYANKUMAR RAY VS. CIT (1991) 191 ITR 634 (SC), ARRAH SASARAM LIGHT RAILWAY CO. LTD. VS. CIT (1993) 204 ITR 807 (CAL), SHAHDARA (DE LHI) SAHARANPUR LIGHT RAILWAY CO. LTD. VS. CIT (1994) 208 ITR 882 ( CAL), ETC. THE LIMITATION PERIOD PRESCRIBED IN SECTION 153 IS THE PERIOD WITHIN WHICH THE AO HAS TO COMPLETE ONE STAGE OF THE PROCEEDINGS, TH AT IS, THE ASSESSMENT OF THE INCOME AND THE DETERMINATION OF THE TAX PAYABLE . IT IS NOT NECESSARY THAT THE TERMS OF THE ORDER OF ASSESSMENT SHOULD, A LSO BE COMMUNICATED TO THE ASSESSEE WITHIN THAT PERIOD [RELIED ON RM.P.R. VISWANATHAN CHETTIAR VS. CIT (1954) 25 ITR 79 (MAD.) APPROVED IN CIT VS. BALKRISHNA MALHOTRA (1972) 81 ITR 759 (SC), ESTHURIASWATHIAH V S. CIT (1963) 50 ITR 764 (MYS.), BADRI PRASAD BAJORIA VS. CIT (1967) 64 ITR 362 (CAL.) ETC.] OR THAT THE NOTICE OF THE DEMAND SHOULD ALSO BE SERVED ON THE ASSESSEE WITHIN THAT PERIOD. [ALSO RELIED ON SUSHIL CHANDRA GHOSE VS. ITO (1959) 35 ITR 379 (CAL.) CAGIT VS. KAPPUMALAI ESTAT E (1998) 234 ITR 187, 188 (KER.) ETC.]. WHAT IS REQUIRED FOR COMPLET ION OF THE ASSESSMENT IS THE DETERMINATION OF THE TAX LIABILITY AND ISSUE OF DEMAND NOTICE, BUT CERTAINLY NOT THE -SERVICE OF THE SAME ON THE ASSES SEE. [INDIA FERRO ALLOY INDUSTRY PVT. LTD. VS. CIT (1993) 202 ITR 671, 677 (CAL.), N. SUBHA RAO 48 ITR 808 (MYS.)]. IN THE CASE OF ESTHURIASWATHIAH VS. CIT (1963) 50 ITR 764 (MYS.), THE ORDER UNDER SECTION 143(3) DATE D 29-02-1961 WAS SERVED TO THE ASSESSEE ON 04-04-1961. THE HON'BLE H IGH COURT MYSORE TREATED THE ORDER AS VALID. IN THE CASE OF RAMANAND AGRAWAL VS. CIT 151 ITR 216 (GUA.), THE ORDER U/S 143(3) DATED 16-03-19 68 WAS SERVED ON 13- 04-1968 AND THE HON'BLE GUAHATI HIGH COURT HELD THE ORDER AS VALID. ORDER SHEET ENTRY PASSED BY THE A.O. STATES THAT AS SESSMENT ORDER WAS COMPLETED ON 31.03.2015 AND HENCE, THE ASSESSMENT O RDER SERVED ON 08.04.2015 IS VALID AND NOT TIME BARRED AS HELD IN THE CASE OF SEWDUTTROYRAMBULLAY& SONS VRS. CIT (CAL) 204 ITR 58 0, CIT VRS. T.O. ABRAHAM & CO.) (KER) 333 ITR 182. IN SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE, THE HON'BLE JURISDICTIONAL TRIBUNAL REJEC TED THE APPEAL OF THE ASSESSEE IN CASE OF CIT VRS. SOPHIA STUDY CIRCLE IN ITA NO.286/CTK/2012 FOR A.Y.2008-09 AND THE RELEVANT PORTION OF THE ORD ER IS REPRODUCED, VERBATIM, HEREUNDER:- WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT THE OU TSET, A PERUSAL OF THE PROVISIONS OF SECTION 153 OF THE ACT SHOWS THAT THE WORD USED IN THE SAID SECTION ' MAKE '. SIMILARLY, A PERUSAL OF THE PROVISO TO SECTION 1 47 OF THE ACT SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 25 2525 25 SHOWS THAT THE WORD USED AS ' NO ACTION SHALL BE TAKEN '. SIMILARLY, IN THE PROVISIONS OF SECTION 148 OF THE ACT, THE WORDS USE D ARE 'SHALL SERVE ON THE ASSESSEE'. SIMILARLY, IN THE PROVISIONS OF SECTION 149 OF THE ACT, THE WORDS USED ARE ISSUE TO THE ASSESSEE'. THUS, EACH WORD US ED IN EACH SECTION HAS A DIFFERENT PURPOSE AND DIFFERENT MEANING. 'MADE' CAN NOT BE TREATED ON THE SAME FOOTING AS SERVED. THE FACT THAT THE WORD USED IS ' MADE ' IN SECTION 153 SHOWS THAT THE ASSESSMENT ORDER SHOULD BE MADE ON OR BEFORE THE SAID DATE. IT DOES NOT MEAN THAT IT SHOULD BE SERVED. ON THIS GROUND ITSELF AS WE FIND THAT THE DECISION OF THE COORDINATE BENCH HAS ERRONEOUSLY LAID DOWN THE LAW ON THIS ISSUE IF THE WORD 'MADE' IS GIVEN T HE MEANING SERVED THEN THE SECTION ITSELF WOULD BECOME UNWORKABLE AND IT W OULD MAKE ALL ASSESSMENT ORDERS MADE ON THE LAST DAY ILLEGAL. IN THE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE PRINCIPLES AND THE RATIO LAID DOWN BY THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VRS. H I-TECH ARAL LTD. (20- 10) 321 ITR 477, WE DIFFER FROM THE DECISION TAKEN BY THE COORDINATE BENCH IN THE CASE OF DURGA CONDEV PVT. LTD. (SUPRA) AS ALSO DECISION OF SHANTI LAI GODAWAT&ORS. VRS. ACIT (2009) 126 TTJ(JO DH) 135. HERE, WE MAY SPECIFICALLY MENTION THAT IN THE CASE OF DURGA CONDEV PVT. LTD. (SUPRA), THOUGH ONE OF US IS CO SIGNATORY IN THAT O RDER STILL WE DIFFER FROM THE SAID ORDER AS THERE IS NO BRAVERY. PERPETUATING AN ERROR IN LAW. THE FACT THAT THE ASSESSMENT ORDER IS DT.31.12.2010 AN THERE IS NO EVIDENCE AVAILABLE TO SHOW THAT THIS ORDER WAS NOT PASSED ON 31.12.201T MAKES THIS ORDER SUSTAINABLE IN LAW AS UNDER THE PROVISIONS OF THE GENERA/ CLAUSES ACT GOVERNMENT DOCUMENT CANNOT BE QUESTIONED UNLESS AND UNTIL SUBSTANTIAL EVIDENCE HAS BEEN PRODUCED TO DISLODGE THE VERACITY OF THE SAME. UNDER THESE CIRCUMSTANCES, S IT IS NOTICED T HAT THE ASSESSMENT ORDER IS DT. 31.12.2010 AND AS NO EVIDENCE HAS BEEN PRODU CED TO SHOW OR TO PROVE THE ALLEGATION THAT THE ORDER WAS BACK DATED, THE TECHNICAL GROUND RAISE BY THE ASSESSEE STANDS REJECTED. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE DISCUSSED ABOVE, IT IS FOUND THAT THERE IS NO INORDINATE DELAY IN SERVICE OF THE ORDER AND THEREFORE, THE GROUND OF APPEAL FILED BY THE APPELL ANT IS NOT ACCEPTABLE AND HENCE, IT IS REJECTED. 16. LD A.R REFERRING TO PAGE 16 OF THE ORDER OF THE CIT(A) IN THE CASE OF GEETARANI PANDA AND PAGE 15 OF THE ORDER OF THE CIT(A) IN THE CASE OF MANJUSMITA DASH SUBMITTED THAT THE CIT(A) HAS CALLED FOR A REMAND R EPORT U/S.250(4) OF THE ACT DATED 23.9.2016 AND IN REPLY TO THE SAME, THE ASSES SING OFFICER HAS SUBMITTED HIS REPORT VIDE LETTER DATED 17.10.2016, WHICH READS AS UNDER: 'THE AUTHORIZED REPRESENTATIVE (A.R.) AFTER BEING A PPOINTED BY THE ASSESSEE TO ACT SO ARE NOT ONLY TO PLEAD OR ARGUE T HE CASE BEFORE THE A.O. IN ORDER TO ACT ON BEHALF OF THE ASSESSEE A.R. A PO WER OF ATTORNEY (POA) HAS BEEN SUBMITTED AT THE OUTSET OF THE CASE. THAT POA AUTHORIZES THE A.R. TO TAKE COPIES OF THE ASSESSMENT ORDERS. THAT POA A LSO AUTHORIZES THE A.O. TO GET THE ASSESSMENT ORDER(S) SERVED ON THE ASSESS EE THROUGH HIS/HER A.R. BEING IT A GROUP CASE ALL ASSESSMENT ORDERS AFTER T HE SCRUTINY PROCEEDINGS SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 26 2626 26 BEING COMPLETED, HAVE BEEN SERVED ON THE ASSESSEE T HROUGH HER A.R. ON 08.04.2015 AND THE RECEIPT OF THE ORDERS HAS BEEN D ULY ACKNOWLEDGED BY THE A.R. ALSO. THE SCRUTINY PROCEEDINGS WERE COMPLE TED BY 31.03.2015 AND ASSESSMENT ORDERS HAVE BEEN SERVED ON 08,04.2015. N O INORDINATE DELAY HAS HAPPENED. WHEN THE A.R. IS READY TO ACT IN EVER Y RESPECTS [INCLUDING APPLYING FOR REFUND AND RECEIVING THE REFUND VOUCHE RS] ON BEHALF OF THE ASSESSEE THROUGH THE POA AND AS STATED ABOVE THE A. R. ALSO DID NOT OBJECT AT THE INSTANT TO RECEIVE THE ASSESSMENT ORDER SERV ING OF ASSESSMENT ORDER (S) WHICH RESULTED IN DEMAND BY HAND DID NOT VIOLAT E ANY RULE.' 17. ON THE ABOVE STATED FACTS, HIS ARGUMENT WAS THA T AS THE ASSESSMENT ORDER WAS PASSED ON 31.3.2015 AND THE SAME WAS DELIVERED BY H AND TO THE ASSESSEE ON 8.4.2015, THE SAME WAS BARRED BY LIMITATION AND, TH EREFORE, LIABLE TO BE ANNULLED. 18. LD D.R. ON THE OTHER HAND SUBMITTED THAT SECTIO N 153A REQUIRES THE ORDER TO BE MADE WITHIN THE TIME LIMIT AND DOES NOT REQUIRES THE SAME TO BE SERVED ON THE ASSESSEE AND THEY CAN BE SERVED LATER ON. HE AGREED WITH THE FACTS AS STATED IN THE ORDER OF THE CIT(A) THAT ALTHOUGH THE ASSESSMENT OR DER WAS PASSED ON 31.3.2015, IT WAS SERVED ON THE LD A.R. OF THE ASSESSEE BY HAN D ON 8.4.2015. HE RELIED ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF BINANI INDUSTRIES LTD VS. CIT (2015) 59 TAXMANN. COM 389 AND SUBMITTED THAT T HE HONBLE HIGH COURT HAS UPHELD THE ORDER IN ABSENCE OF ANY MATERIAL TO SHOW THAT THE ASSESSING OFFICER REVISITED THE ORDERS AFTER 31.12.2016. 19. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT C ASE, THE ASSESSEE HAS RAISED TWO LEGAL ISSUES. FIRSTLY, THE ORDER OF ASSESSMENT BEIN G ISSUED AFTER THE STATUTORILY PERMITTED TIME IS BARRED BY LIMITATION. SECONDLY, N O REQUISITE APPROVAL AS ENVISAGED UNDER THE PROVISIONS OF SECTION 153D OF T HE ACT WAS OBTAINED AND, THEREFORE, THE IMPUGNED ORDER OF ASSESSMENT IS BARR ED IN LAW. 20. WE FIND FORCE IN BOTH THE ABOVE LEGAL ISSUES RA ISED BY THE ASSESSEE FOR THE REASON DISCUSSED HEREUNDER. 21. IN THE INSTANT CASE, IT IS NOT IN DISPUTE THAT THOUGH THE IMPUGNED ORDER OF ASSESSMENT IS DATED 31.3.2015 WAS ISSUED AND SERVED MANUALLY ONLY ON 8.4.2015 ON THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE. T HIS BENCH OF THE TRIBUNAL IN THE CASE OF M/S. NIDAN VS ACIT, (2018) 53 CCH 0046 (CUTTACK TRIBUNAL) HAS HELD AS UNDER: 4. IN ALL THE ABOVE SEVEN APPEALS, THE ASSESSEE RA ISED A LEGAL GROUND WHICH IS THAT THE ORDERS OF ASSESSMENT PASSED BY TH E ASSESSING OFFICER ARE BARRED BY LIMITATION. 5. THE FACTS RELATING TO THIS ISSUE ARE THAT A SEAR CH AND SEIZURE OPERATION WAS CONDUCTED IN THE CASE OF THE ASSESSEE ON 28.5.2 014. IN PURSUANCE TO THE SAID SEARCH, ORDER U/S.153A R.W.S 144 OF THE AC T WAS PASSED FOR THE ASSESSMENT YEARS 2009-2010 TO 2014-15 AND ASSESSMEN T FOR THE ASSESSMENT YEAR 2015-16 WAS MADE U/S.144 OF THE ACT . THE SAID ORDERS OF SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 27 2727 27 ASSESSMENT WERE SERVED UPON THE ASSESSEE ON 9.1.201 7 THOUGH ALL THE ORDERS WERE DATED 30.12.2016. 6. BEFORE THE CIT(A), THE ASSESSEE CONTENDED THAT T HE AFORESAID ORDERS BEING DISPATCHED ON 7.1.2017 ARE BARRED BY LIMITATI ON. THE CIT(A) OBSERVED THAT AS THE ORDERS WERE DATED 30.12.2016 A ND IN ABSENCE OF ANY MATERIAL TO SHOW THAT THE ASSESSING OFFICER REVISIT ED THESE ORDERS AFTER 30.12.2016 UPHELD THE ORDERS AND DRAWN SUPPORT FROM THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. BINANI INDUSTRIES LTD., (2015) 59 TAXMANN.COM 389 (CAL). 7. BEFORE US, THE ASSESSEE PRODUCED COPY OF ENVELOP E BY WHICH THE ORDERS OF ASSESSMENT WERE SENT TO THE ASSESSEE BY THE ASSE SSING OFFICER AND COPY OF TRACK RECORD OF SPEED POST TO SHOW THAT THE IMPU GNED ORDERS OF ASSESSMENT WERE, IN FACT, DISPATCHED BY THE ASSESSI NG OFFICER ON 7.1.2017, THOUGH THE ORDERS WERE DATED 30.12.2016. THE ASSESS EE CONTENDED THAT AS THE ORDERS WERE DISPATCHED AFTER 30.12.2016, THEREF ORE, THE ORDERS OF ASSESSMENT WERE BARRED BY LIMITATION. HE PLACED REL IANCE ON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. B J N HOTELS LD., (2017) 79 TAXMANN.COM 336(KAR). 8. ON THE OTHER HAND, LD D.R. PLACED RELIANCE ON TH E ORDERS OF THE CIT(A). 9. LD D.R. COULD NOT EXPLAIN WHEN THE ORDERS WERE P REPARED ON 30.12.2016 WHY IT COULD NOT BE DISPATCHED ON OR BEF ORE 31.12.2016. 10. WE FIND THAT SECTION 153B(1)(A) READS AS UNDER : 153B (1) NOTWITHSTANDING ANYTHING CONTAIN IN SECTI ON 153, THE AO SHALL MAKE AN ORDER OF ASSESSMENT OR REASSESSMEN T (A) IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITH IN SIX ASSESSMENT YEARS [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEAR S] REFERRED TO IN CLAUSE (B) OF SUB-SECTION (1) OF SECTION 153A, WITH IN A PERIOD OF TWENTY-ONE MONTHS FROM THE END OF THE FINANCIAL YEA R IN WHICH THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED. 11. A PERUSAL OF THE ABOVE PROVISIONS SHOW THAT THE LANGUAGE USED BY THE LEGISLATURE IN THE ABOVE PROVISION IS IN NEGATIVE A ND THE WORDS USED ARE ORDER OF ASSESSMENT AND NOT ONLY ASSESSMENT . THE WORD ORDER DENOTES A COMMAND WHICH IS TO BE FOLLOWED BY SOMEBO DY ELSE. UNLESS THE COMMAND IS COMMUNICATED TO THE PERSON BY WHOM IT HA S TO BE FOLLOWED, IT DOES NOT BECOME AN ORDER . 12. IN OUR CONSIDERED VIEW, SIMPLY DETERMINING THE TOTAL INCOME OF AN ASSESSEE AND DETERMINING ITS TAX LIABILITY ON A PIE CE OF PAPER AND SIGNING THE SAME MAY CONSTITUTE AN ASSESSMENT BUT ONLY ON I TS COMMUNICATION TO SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 28 2828 28 THE ASSESSEE IT BECOMES ORDER OF ASSESSMENT . THUS, IN OUR CONSIDERED OPINION, TO BECOME A LEGAL VALID ORDER OF ASSESSMEN T, ITS COMMUNICATION MUST BE WITHIN A PERIOD OF LIMITATION PRESCRIBED BY THE LAW THOUGH THE COMMUNICATION MAY END AFTER THE PRESCRIBED PERIOD O F LIMITATION. OUR ABOVE VIEW DERIVES SUPPORT FROM THE DECISION OF HON BLE KARNAKATA HIGH COURT IN THE CASE OF B J N HOTELS LTD (SUPRA), WHER EIN, IT HAS BEEN HELD AS UNDER: THAT THE REVENUE IS NEITHER ABLE TO POINT OUT FROM THE RECORDS THAT THE ASSESSMENT ORDERS WERE DISPATCHED ON 27.4.2007 NOR PRODUCED THE DISPATCH REGISTER TO ESTABLISH THAT THE ORDERS WERE COMPLETE AND EFFECTIVE I.E. IT WAS ISSUED, SO AS TO BE BEYOND THE CONTROL OF THE AUTHORITY CONCERNED WITHIN THE PERIOD OF LIMITATION I.E. 29.4.2007. ADM ITTEDLY, THE ASSESSMENT ORDERS WERE SERVED ON THE ASSESSEE ON 30.4.2007. HE NCE, THE ASSESSMENT ORDERS PASSED WERE BARRED BY LIMITATION. IN THE ABOVE DECISION, HONBLE HIGH COURT FOLLOWS I TS ONE EARLIER DECISION AND HAS STATED AS UNDER: AN IDENTICAL ISSUE WAS BEFORE THIS COURT IN ITA NO .832/2008 (D.D. 14.10.2014 IN THE CASE OF MAHARAJA SHOPPING COMPLEX VS DCIT. THIS COURT FOLLOWING THE JUDGMENT OF KERALA HIGH COURT I N THE CASE OF GOVERNMENT WOOD WORKS VS STATE OF KERALA (1988) 69 STC 62 HAS HELD THAT IN THE ABSENCE OF DISPATCH DATE MADE AVAILABLE TO THE COURT FROM THE RECORDS, TO PROVE THAT THE ORDER IS ISSUED WITHIN T HE PRESCRIBED PERIOD, ORDER PASSED BY AO IS BARRED BY LIMITATION. THE SAI D JUDGMENT SQUARELY APPLIES TO THE FACTS OF THE PRESENT CASE. 13. TO THE SAME EFFECT ARE THE DECISIONS OF HONBLE KERALA HIGH COURT, WHICH ARE IN THE CASE OF (I) K. JOSEPH JACOB VS AGRICULTURAL INCOME TAX OFFICER & ANOTHER (1991) 190 ITR 464 (KER) AND (II) COMMISSIONER OF A GRICULTURAL INCOME TAX OFFICER VS. KAPPUMALAI ESTATE, 234 ITR 187 (KER). 14. THE JODHPUR BENCH OF THIS TRIBUNAL ALSO HELD SI MILARLY IN THE CASE OF SHANTI LAL GODAWAT AND OTHERS VS. ACIT, REPORTED IN 126 TT J (JD) 135. 15. IN VIEW OF ABOVE PLETHORA OF JUDICIAL PRECEDENT S, IN OUR CONSIDERED OPINION, THE DECISION OF HONBLE CALCUTTA HIGH COURT RELIED UPON BY THE CIT(A) IN THE CASE OF BINANI INDUSTRIES LTD., (SUPRA) WILL NOT DETER U S AS IT IS A SETTLED POSITION OF LAW THAT WHEN TWO DIVERGENT VIEWS ARE EXPRESSED BY TWO DIFFERENT HONBLE HIGH COURTS, NONE OF WHICH ARE HONBLE JURISDICTIONAL HI GH COURT, THEN THE VIEW FAVOURABLE TO THE ASSESSEE SHOULD BE FOLLOWED. FOR THIS, WE DERIVE SUPPORT FROM THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F CIT VS. VEGETABLE PRODUCTS LTD., 88 ITR 192 (SC). 16. COMING TO THE FACTS OF THE INSTANT CASE, IT IS NOT IN DISPUTE THAT THE LAST AUTHORISATION U/S.132 OF THE ACT WAS EXECUTED ON 28 .5.2014. TWENTY- ONE MONTHS FROM THE END OF THE FINANCIAL YEAR 2014-2015 EXPIRE S ON 31.12.2016. THEREFORE, THE ORDERS OF ASSESSMENT IN PURSUANCE TO THE SAID S EARCH FOR THE ASSESSMENT YEARS 2009-2010 TO 2015-2016 WERE TO BE MADE ON OR BEFORE 31.12.2016. SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 29 2929 29 17. IT IS NOT IN DISPUTE THAT THE ORDERS OF ASSESSM ENT UNDER CONSIDERATION WERE DISPATCHED ONLY ON 7.1.2017. HENCE, IN OUR CONSIDER ED OPINION, THE SAID ORDERS OF ASSESSMENT WERE TIME BARRED AND CONSEQUENTLY, WE SE T ASIDE THE SAME AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSEE FOR ALL THE S EVEN YEARS UNDER APPEAL. 22. IN VIEW OF ABOVE, AS IN THE INSTANT CASE, THE C OMMUNICATION PROCESS OF THE ASSESSMENT WAS NOT INITIATED ADMITTEDLY WITHIN THE PRESCRIBED PERIOD OF LIMITATION, HENCE IT DID NOT BECOME AN ORDER OF ASSESSMENT WI THIN THE PERIOD OF LIMITATION. WE, THEREFORE, HAVE NO HESITATION IN HOLDING THAT T HE IMPUGNED ORDER OF ASSESSMENT IS BARRED BY LIMITATION. 23. IN THE INSTANT CASE, THE ALLEGED APPROVAL LETTE R DATED 27.3.2015 OF THE ADDL. CIT, RANGE-1, BHUBANESWAR READS AS UNDER: 'DESPITE A REMINDER GIVEN ON 19TH MARCH, 2015 TO SU BMIT THE TIME BARRING DRAFT ASSESSMENT ORDERS FOR APPROVAL U/S.153D ON OR BEFORE 23.03.2015, THE DRAFT ORDERS IN M/S. NEELACHAL CARBO METALICKS PVT. LTD. GROUP OF CASES HAS BEEN RECEIVED IN THIS OFFICE ONLY ON TILL 26TH MARCH, 2015 IN THE AFTERNOON. THE DRAFT ORDERS HAVING BEING SUBMITTED ONLY 5 DAYS BEFORE FINAL ORDERS ARE GETTING BARRED BY LIMITATION, I HA VE NO OTHER OPTION BUT TO ACCORD THE APPROVAL TO THE SAME AS THE APPROVAL IS STATUTORILY REQUIRED U/S. 153D, EVEN THOUGH THERE IS NO TIME LEFT FOR UNDERSI GNED TO ENSURE THAT ALL THE POINTS RAISED IN THE APPRAISAL REPORT, THE APPE LLATE PROCEEDINGS, AUDIT INSPECTION ETC. ARE DULY TAKEN INTO ACCOUNT, AND TH E ENQUIRIES AND INVESTIGATIONS THAT ARE REQUIRED TO BE MADE ARE ACT UALLY MADE BEFORE FINALIZATION OF THE ASSESSMENT ORDERS. IT WOULD HAVE BEEN MUCH BETTER AND IN THE INTEREST OF REVENUE, IF YOU HAD SUBMITTED THE DRAFT ORDERS AT LEAST ONE MONTH EARLI ER SO AS TO ALLOW THE UNDERSIGNED SOMETIME TO GO THROUGH AND ANALYSE THE SAME VIS-A-VIS THE APPRAISAL REPORT AND SEIZED RECORDS. IT ALSO GOES W ITHOUT SAYING THAT YOU NEVER CARED EVEN TO DISCUSS THESE CASES WITH THE UN DERSIGNED FOR GUIDANCE AND LINE OF INVESTIGATION TO BE TAKEN. HOWEVER, DESPITE ALL THIS, I HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORDS AND SOME OF THE OBSERVATIONS, IN RESPECT OF THE FOLLOWING CASES ARE GIVEN IN SUBSEQUENT PARAS. 24. IN OUR CONSIDERED VIEW, THE PROVISIONS CONTAINE D IN SECTION 153D AS ENACTED BY THE PARLIAMENT CANNOT BE TREATED AS AN EMPTY FOR MALITY. THE PROVISION HAS CERTAIN PURPOSE. IT IS APPARENT THAT THE PURPOSE BE HIND THE ENACTMENT OF THE ABOVE PROVISION IN THE STATUTE BY THE PARLIAMENT ARE TWO FOLDS. FIRSTLY, THE APPROVAL OF THE SENIOR AUTHORITY WILL ENSURE THAT THE ASSESSEE IS NOT PREJUDICED BY THE UNDUE OR IRRELEVANT ADDITION OR ASSESSMENT. SECONDLY, THE APPROVAL BY SENIOR AUTHORITY WILL ALSO ENSURE THAT PROPER ENQUIRY OR INVESTIGATI ON ARE CARRIED OUT BY THE ASSESSING AUTHORITY. THUS, THE ABOVE PROVISION PROV IDES FOR MENTAL APPLICATION OF A SENIOR OFFICER OF THE DEPARTMENT, WHICH IN TURN, PROVIDES SAFEGUARD TO BOTH I.E. REVENUE AS WELL AS THE ASSESSEE. THEREFORE, THIS IM PORTANT PROVISION LAID DOWN BY SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 30 3030 30 THE LEGISLATURE CANNOT BE TREATED AS A MERE EMPTY F ORMALITY. THE SAME VIEW WAS EXPRESSED BY THE PUNE BENCHES OF THE TRIBUNAL IN TH E CASE OF AKILGULAMALISOMJI VS ITO, IN IT APPEAL NOS.455 TO 458 (PUNE) OF 2010 ORDER DATED 30.3.2012, WHEREIN, IT WAS HELD THAT WHEN THE APPROVAL WAS GRA NTED WITHOUT PROPER APPLICATION OF MIND, THE ORDER OF ASSESSMENT WILL B E BAD IN LAW. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT-II VS SHRI AKI LGULAMALISOMJI, IN INCOME TAX APPEAL (L) NO.1416 OF 2012 ORDER DATED 15.1.201 3 CONCURRED WITH THE VIEW OF THE TRIBUNAL THAT NOT FOLLOWING OF THE PROVISION S OF SECTION 153D OF THE ACT WILL RENDER THE RELATED ORDER OF ASSESSMENT VOID. 25. IN THE INSTANT CASE, WE FIND THAT THE SUPERVISO RY AUTHORITY HAS HIMSELF ADMITTED THAT BECAUSE OF REASONS STATED BY HIM, COU LD NOT APPLY HIS MIND AND HAS ACCORDED THE APPROVAL MECHANICALLY TO MEET THE REQU IREMENTS OF LAW AS THE REQUIREMENT WAS MERELY A FORMALITY. THE SAID SUPERV ISORY AUTHORITY HAD A DUTY TOWARDS BOTH THE ASSESSEE AS WELL AS THE REVENUE WH ICH WAS FAILED TO BE PERFORMED IN THE INSTANT CASE. 26. FURTHER, WE FIND THAT THE APPROVING AUTHORITY H AS REQUIRED THE ASSESSING AUTHORITY TO CONDUCT FURTHER ENQUIRY IN RESPECT OF OPENING CASH IN HAND. THE ASSESSING AUTHORITY THEREAFTER HAS NEVER COMMUNICAT ED HIS FINDINGS OF THE FURTHER ENQUIRY TO THE SUPERVISORY AUTHORITY AND NOT TAKEN THE APPROVAL OF JUSTIFICATION OF HIS FINDINGS. THUS, IN OUR CONSIDERED OPINION, ALLE GED APPROVAL LETTER DATED 27.3.2015 OF THE ADDL. CIT, RANGE1, BHUBANESWAR DOE S NOT CONSTITUTE THE APPROVAL WHICH IS ENVISAGED BY THE PROVISIONS OF SE CTION 153D OF THE ACT. THUS, FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH C OURT IN THE CASE OF AKILGULAMALISOMJI (SUPRA), WE HOLD THAT THE IMPUGNE D ORDER OF ASSESSMENT IS VOID AND BAD IN LAW. THEREFORE, THE IMPUGNED ORDER OF ASSESSMENT IS HEREBY CANCELLED AND GROUND NO.2 AND GROUND NO.4 OF APPEAL IN CASE OF BOTH THE ASSESSEES ARE ALLOWED. 7. LEARNED CO-ORDINATE BENCH HAS TAKEN INTO CONSIDE RATION THE SETTLED LEGAL POSITION ON THE VERY ISSUE OF SEC. 153D APPROVAL IN LIGHT OF EA RLIER PROVISION SEC. 158BG VIS-A-VIS SEC. 153D (SUPRA) TO CONCLUDE THAT THE JCIT IS NOT TO AC CORD A MERE MECHANICAL APPROVAL BUT HE HAS TO APPLY HIS MIND IN ORDER TO ENSURE THAT TH E ASSESSING AUTHORITY CONDUCTS APPROPRIATE ENQUIRY AND INVESTIGATION. AND ALSO THA T THERE IS NO UNDUE OR IRRELEVANT ADDITION MADE IN THE ASSESSMENT IN ISSUE. WE ALSO F IND THAT THE TRIBUNALS LEADING DECISION IN CASE OF PCIT VS. SHREELEKHADAMANI STANDS AFFIRME D IN HON'BLE BOMBAY HIGH COURT IN TAX APPEAL NO.668 OF 2016 DECIDED ON 27.11.2018. WE CONCLUDE IN THESE FACTS AND CIRCUMSTANCES THAT THE DEPARTMENT HAS NOT PROCEEDED TO FINALISE THE IMPUGNED ASSESSMENT(S) IN TRUE LIGHT OF THE RELEVANT MANDATO RY PROVISION SEC. 153D OF THE ACT MAINLY FOR THE REASON NEITHER THE ASSESSING OFFICER HAD SENT ANYTHING MORE THAN THE DRAFT ASSESSMENT ORDER(S) NOR THE JCIT HAD AN OCCASION T O APPLY HIS MIND TO ENSURE THE TWIN PURPOSE OF HIS STATUTORY EXERCISE (SUPRA). WE FURTH ER MAKE IT CLEAR THAT SINCE THE ENTIRE EXERCISE WAS CARRIED OUT FROM BOTH THE AUTHORITIES END ON THE SAME DATE I.E. 28.03.2016 ITSELF IN ABSENCE ALL THE CORRESPONDING RECORDS, TH E IMPUGNED APPROVAL DOES NOT SATISFY THE RELEVANT PARAMETERS OF LAW AS SETTLED IN PRECED ING CASE LAW. WE THEREFORE QUASH ALL THE IMPUGNED ASSESSMENT(S) FRAMED U/S. 153A R.W.S. 143(3) FOR THIS PRECISE REASON ALONE. ALL THESE REVENUES APPEAL(S) ARE DECLINED WHEREAS THE ASSESSEES APPEAL(S) / CROSS OBJECTIONS ARE ALLOWED IN FOREGOING TERMS. ORDERED ACCORDINGLY. SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 31 3131 31 7. TO SUM UP, THESE REVENUES APPEAL(S) ARE DISMISS ED AND ASSESSEES APPEALS / CROSS- OBJECTIONS ARE ALLOWED. A COPY OF THE INSTANT COMMO N ORDER BE PLACED IN THE RESPECTIVE CASE FILE(S). 8. WE NOTE THAT THE WORDINGS AND LANGUAGE USED IN SECTION 153D OF THE ACT AND THE HEADING PRIOR APPROVAL NECESSARY FOR ASSESSMEN T IN CASES OF SEARCH OR REQUISITION WHICH HAS BEEN PROVIDED UNDER SECTION 153D OF THE ACT, DO NOT LEAVE AN IOTA OF DOUBT ABOUT THE VERY INTENTION OF THE LE GISLATURE TO MAKE THE COMPLIANCE OF SECTION 153D, A MANDATORY. IN OTHER WORDS, THE C OMPLIANCE OF SECTION 153D IS MANDATORY IN NATURE. THEREFORE, ASSESSMENT ORDER PA SSED BY THE INCOME TAX OFFICER, IN THE ASSESSEES CASE, WITHOUT TAKING PRI OR APPROVAL FROM JCIT, IS NULL IN THE EYE OF LAW. AS THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE COORDINATE BENCH IN THE CASE OF SHRI SWAPAN KUMAR P AUL (SUPRA) AND THERE IS NO CHANGE IN FACTS AND LAW AND THE REVENUE IS UNABLE T O PRODUCE ANY MATERIAL TO CONTROVERT THE AFORESAID FINDINGS OF THE COORDINATE BENCH (SUPRA). WE FIND NO REASON TO INTERFERE IN THE SAID ORDER OF THE COORDI NATE BENCH (SUPRA). IN VIEW OF THE DECISION OF COORDINATE BENCH IN THE CASE OF SHRI SWAPAN KUMAR PAUL (SUPRA) AND POSITION OF LAW PROVIDED U/S 153D OF THE ACT, WE HOLD THAT IMPUGNED ASSESSMENT ORDER FRAMED IN ABSENCE OF OBTA INING PRIOR APPROVAL OF THE JOINT COMMISSIONER OF INCOME TAX (JCIT), FOR THE AS SESSMENT YEAR UNDER CONSIDERATION IS INVALID AND NULL IN THE EYE OF L AW, THEREFORE WE QUASH THE ASSESSMENT ORDER DATED 29.03.2016. 9. SINCE WE HAVE ALLOWED THE ASSESSEES APPEAL; BA SED ON THE TECHNICAL ISSUE RAISED IN THE CROSS-OBJECTIONS THEREFORE, WE DO NOT ADJUDICATE THE OTHER ISSUES RAISED ON MERITS IN CROSS OBJECTIONS, AND WE ALSO DO NOT ADJUDICATE THE APPEAL FILED BY THE REVENUE, AS WE HAVE ALREADY ALLOWED TH E APPEAL OF THE ASSESSEE, SHRI SUBHAJIT PAUL ITA NO.116/GAU/2018 & C.O. NO. 16/GAU/2018 ASSESSMENT YEAR:2014-15 PAGE | PAGE | PAGE | PAGE | 32 3232 32 THEREFORE APPEAL FILED BY THE REVENUE BECOMES INFRU CTUOUS AND HENCE DOES NOT REQUIRE ADJUDICATION. 10. IN THE RESULT, CROSS-OBJECTION NOS. 1 AND 2 RAI SED BY THE ASSESSEE ARE ALLOWED AND APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 31.07.2020 SD/- ( A.T. VARKEY ) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / DATE: 31/07/2020 ( BISWAJIT, SR.PS ) COPY OF THE ORDER FORWARDED TO: 1. DCIT, CIRCLE-AGARTALA 2. SHRI SUBHAJIT PAUL 3. C.I.T(A)- 4. C.I.T.- GUWAHATI 5. CIT(DR), GAUHATI BENCH, GUWAHATI. 6. GUARD FILE. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY / DDO / H. O. O ITAT, GAUHA TI BENCH