Smt. Namita Paul, Agartala V. Assistant Commissioner of Income Tax, Circle - Agartala , Agartala

CO 22/GTY/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6497 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 23-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K BHARDWAJ SHRI SANDIP SENG
• Keywords: Search and seizure; Opportunity of being heard; Period of limitation; Difference of opinion; Validity of assessment; Procedural lapse; Competent authority; Assessment record; Block assessment; Change of opinion; Set aside
• Section: 271(1)(c); 143(3); 142(1); 153A; 147; 68; 263; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL GUWAHATI BENCH, GUWAHATI BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. A.L. SAINI, ACCOUNTANT MEMBER ITA NO. 136 - 14 2 / GAU / 2018 ASSESSMENT YEARS :2008-09 TO 2014-15 SRI SWAPAN KUMAR PAUL B.K.ROAD, BANAMALIPUR, TRIPURA WET, AGARTALA- 799001 [ PAN NO. AEYPP 1702 J ] V/S . ACIT, CIRCLE AGARTALA, /APPELLANT .. / RESPONDENT ITA NO. 155 - 158 / GAU / 2018 ASSESSMENT YEARS :2011-12 TO 2014-15 C.O. NO.28-31/GAU/2018 (A/O ITA NO.155-158/GAU/2018) DCIT, CIRCLE AGARTALA, V/S . SRI SWAPAN KUMAR PAUL B.K.ROAD, BANAMALIPUR, TRIPURA WET, AGARTALA- 799001 [ PAN NO. AEYPP 1702 J ] /APPELLANT .. / RESPONDENT /CO-OBJECTOR ITA NO. 143 - 148 / GAU / 2018 ITA NO.149-151/GAU/2018 ASSESSMENT YEAR: 02008-09 TO 2010-11 & ITA NO.153-154/GAU/2018 ASSESSMENT YEARS :2012-13 & 2013- 14 C.O. NO.22 TO 27/GAU/2018 (A/O ITA NO. 149 TO 154/GAU/2018) SRI NAMITA PAUL C/O SRI SWAPAN KUMAR PAUL, B.K. ROAD, BANAMALIPUR, TRIPURA WET, V/S . ACIT, CIRCLE AGARTALA, PAGE 2 AGARTALA-799001 [ PAN NO. AGZPP 8327 N ] DCIT CIRCLE-AGARTALA AAYAKAR BHAWAN, MANTRI BARI ROAD, NETAJI CHOWMUHANI, WEST TRIPURA, V/S . SMT.NAMITA PAUL B.K. ROAD, BANAMALIPUR, AGARTALA- 799001 /APPELLANT .. / RESPONDENT /CO-OBJECTOR /BY ASSESSEE SHRI SANJAY MODY, FCA /BY REVENUE SHRI A.K. BHARDWAJ, ADDL. CIT-DR SHRI SANDIP SENGUPTA, JCIT-DR /DATE OF HEARING 12-07-2019 /DATE OF PRONOUNCEMENT 31-07-2019 / O R D E R PER BENCH:- 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 PAUL AND SMT.NAMITA PAUL INVOLVING THE VERY SEARCH DATED 23. 08.2013 AT THEIR BUSINESS AND RESIDENTIAL PREMISES ARISE FROM COMMISSIONER OF INCOME TAX (APPEALS)- SHILLONGS SEPARATE ORDERS DATED 26.03.2018 AND 23. 03.2018 (ASSESSEE-WISE); RESPECTIVELY INVOLVING PROCEEDINGS U/S 153A R.W.S. 143(3) OF THE INCOME TAX 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 CORRECTNE SS OF VALIDITY OF ALL THE IMPUGNED ASSESSMENTS FRAMED BY THE ASSISTANT COMMI SSIONER OF INCOME- TAX, AGARTALA CIRCLE FOR WANT OF APPROPRIATE APPROV AL BY THE JOINT COMMISSIONER OF INCOME-TAX-AS REQUIRED U/S 153D OF THE ACT. WE THUS STAKE UP THIS FIRST AND FOREMOST LEGAL ISSUE FOR ADJUDICA TION SINCE GOING TO ROOT OF THE MATTER. PAGE 3 3. LEARNED COUNSEL APPEARING ASSESSEE HAS REITERAT ED THE CORRESPONDING PLEADINGS IN THE INSTANT APPEAL(S) / CROSS OBJECTIO NS THAT THE 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; ADDITIONAL CIT AND JCIT, REPRESENT THE REVENUE BEFO RE US. BOTH OF THEM STRONGLY ARGUE THAT THE JCIT HEREIN HAS DULY ACCORD ED PRIOR APPROVAL TO THE ACITS DRAFT ASSESSMENT SOUGHT ON 28.03.2016. THEY PLACE ON RECORD THE ACITS APPROVAL LETTER DATED 28.03.2016 SENT TO THE JCIT CONCERENED WHO IN TURN GRANTED HIS APPROVAL 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 23-0 8-2013- REGARDING. / 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. ACT. DETAIL OF THE CASES IS GIVEN IN THE FOLLOWING TABLE . YOU ARE DIRECTED TO PASS FINIAL ORDER IN THESE CASES & SERVED UPON THE ASSESSEE AND SEND A COPY OF THE SAID FINAL ORDER TO THIS OFFICE FOR REC ORD 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. DO NT QUOTE SECTION 68 IN CASE OF ADDITION UNDER VOLUNTARY DISCLOSURE / UNDISCLOSED INCOME. 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 PAGE 4 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. 13-14 2,43,6,7,030 .DO. .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 PROPO S FOR FRAMING SEC. 153A ASSESSMENT(S) IN THESE TWO SEARCHED TAXPAYERS CASH. HE QUOTES THIS TRIBUNALS CO-ORDINATE BENCHS DECISION IN (2012) 1 37 ITD 94 (PUNE) IN AKIL GULAMALI SOMJI VS. ITO WARD-4(5), PUNE THAT SUCH AN ASSESSMENT WITHOUT PAGE 5 FOLLOWING THE PRESCRIBED MANDATORY PROCEDURE IN NOT VALID. LEARNED CO- ORDINATE BENCHS ORDER TO THIS EFFECT READS AS UNDE R:- 11. WE HAVE CONSIDERED THE ABOVE SUBMISSIONS AND HA VE 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 BUSINESS AND RESIDENTIAL PREMISES OF MR. SHRIRAM SONI, CERTAIN DOCUMENTS BELONGING TO THE AS SESSEE WERE FOUND AND SEIZED. NOTICE U/S. 153C WAS ISSUED TO THE ASSESSEE AND ASS ESSMENT U/S. 153C R.W.S. 144 HAVE BEEN FRAMED FOR ALL THE 4 A.YS. UNDER CONSIDER ATION. BEFORE THE LD CIT(A), THE ASSESSMENT ORDERS WERE QUESTIONED BOTH ON LEGAL ISS UE AND ON MERITS. ON LEGAL ISSUE, THE VALIDITY OF ASSESSMENT ORDERS IN ABSENCE OF APPROVAL OBTAINED U/S. 153 D OF THE ACT OF JOINT COMMISSIONER OF INCOME 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 BEEN 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 AKIL GULAMALI SOMJI A.Y. 2001-02 TO 2004-05 PAGE OF 14 HAS BEEN FOUND DURING THE COURSE OF SEAR CH CONDUCTED ON A PERSON) AROSE OR RE-ASSESS INCOME OF SUCH OTHER PERSON IN A CCORDANCE WITH THE PROVISIONS OF SEC. 153A. SEC. 153B TALKS ABOUT TIME LIMIT FOR COM PLETION OF ASSESSMENT U/S. U/S. 153A, WHEREAS S.153D , TALKS ABOUT NECESSITY OF PRIOR APPROVAL FOR FRAMI NG ASSESSMENT IN CASE OF SEARCH OR REQUISITION. WE THU S FULLY CONCUR WITH THE SUBMISSION OF THE LD. A.R. THAT PROVISIONS LAID DOWN U/S. 153D ARE VERY MUCH APPLICABLE IN CASE OF ASSESSMENT OF INCOME OF ANY OTHER PERSON (I.E. T HE 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 I NCOME TAX, ASSESSMENT MADE U/S. 153 C WILL MAKE THE ASSESSMENT VOID OR VOIDABL E/CURABLE. FOR A READY REFERENCE, 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 COMMI SSIONER].' 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 ASSESSMENT OR RE-ASSESSMENT' SUPPORTED BY THE FURTHER WORDING ' SHALL ' MAKES THE INTENTION OF THE LEGISLATURE CLEAR THAT COMPLIANCE OF SEC. 153D REQUIREMENT IS MANDATORY. NO UNIVERSAL RU LE CAN BE LAID DOWN AS TO WHETHER MANDATORY ENACTMENT SHALL BE CONSIDERED DIR ECTORY OR AKIL GULAMALI SOMJI A.Y. 2001-02 TO 2004-05 PAGE OF 14 OBLIGATORY WITH AN IMPLIED NULLIFICATION FOR DISOBEDIENCE. AS PER THE DECISION OF HON'BLE SUPREM E COURT IN THE CASES OF BANWARILAL AGARWALLA VS. STATE OF BIHAR, AIR 1961 S C 849 (853); RAZAS BULLAND SUGAR CO.LTD., VS. MUNICIPAL BOARD, AIR 1965 (SC) 8 95 (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, SERI OUS GENERAL INCONVENIENCE WILL BE CREATED TO NASCENT PERSONS WITHOUT VERY MUCH FURTHE R OBJECT OF ENACTMENT, THE SAME PAGE 6 WILL BE CONSTRUED AS DIRECTORY. BUT ALL THESE DOES NOT MEAN THAT LANGUAGE 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 CON SIDERING THE NATURE OF THE ENACTMENT, ITS DESIGNED CONSEQUENCES FLOWING FROM A LTERNATIVE CONSTRUCTIONS. THE WORDINGS AND LANGUAGE USED IN SEC. 153D OF THE ACT AND THE HEADING ' PRIOR APPROVAL NECESSARY FOR ASSESSMENT IN CASES OF SEARC H OR REQUISITION ' UNDER WHICH, SEC. 153D HAS BEEN PROVIDED DO NOT LEAVE AN IOTA OF DOUBT ABOUT THE VERY INTENTION OF THE LEGISLATURE TO MAKE THE COMPLIANCE U/S. 153D A MANDATORY. THERE IS NO DISPUTE THAT IF A PROVISION IS MANDATORY, AN ACT DONE IN BREACH THEREOF WILL BE INVALID, BUT, IF IT IS DIRECTORY, THE ACT WILL BE V ALID ALTHOUGH NON-COMPLIANCE MAY GIVE RISE TO SOME OTHER PENALTY IF PROVIDED BY THE STATU TE. 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 REQUIRE MENTS, OR CONDITIONS ALTHOUGH MANDATORY MAY BE WAIVED HIM IF NO PUBLIC INTEREST A RE 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 WHERE CONSENT OF ASS ESSEE WILL WAIVE THE CONDITION OF OBTAINING PRIOR APPROVAL U/S. 153D OF THE JOINT COM MISSIONER OF INCOME TAX BY THE A.O FOR FRAMING AKIL GULAMALI SOMJI 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 F ACIE INFERENCE MAY BE REVERTED BY OTHER CONSIDERATION SUCH AS OBJECT AND SCOPE OF THE ENACTMENT AND CONSEQUENCE FLOWING FROM SUCH CONSTRUCTION. THE REVENUE HAS NOT BEEN ABLE TO REBUT THE ABOVE INFERENCE BY POINTING OUT OTHER CONSIDERATION LIKE OBJECT AND SCOPE OF THE ENACTMENT AND THE CONSEQUENCE FLOWING FROM SUCH CONSTRUCTION BEFORE US. CLAUSE 9 OF MANUAL OF OFFICE PROCEDURE, VOLUME II (TECHNICAL) FEBRUARY 2003 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 THE RA NGE JCIT/ADDL.CIT. (FOR THE PERIOD FROM 30-6-1995 TO 31-12-1996 THE APPROVI NG AUTHORITY WAS THE CIT.) THE ASSESSING OFFICER SHOULD SUBMIT THE DRAFT ASSESSMENT ORDER FOR SUCH APPROVAL WELL IN TIME. THE SUBMISSION OF THE D RAFT ORDER MUST BE DOCKETED IN THE ORDER-SHEET AND A COPY OF THE DRAFT ORDER AND COVERING LETTER FILED IN THE RELEVANT MISCELLANEOUS RECORDS FOLDER. DUE OPPORTUNITY OF BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE BY THE SUPERV ISORY OFFICER GIVING APPROVAL TO THE PROPOSED BLOCK ASSESSMENT, AT LEAST ONE MONTH BEFORE THE TIME BARRING DATE. FINALLY ONCE SUCH APPROVAL IS GR ANTED, IT MUST BE IN WRITING AND FILED IN THE RELEVANT FOLDER INDICATED ABOVE AF TER MAKING A DUE ENTRY IN THE ORDER-SHEET. THE ASSESSMENT ORDER CAN BE PASSED ONL Y AFTER THE RECEIPT OF SUCH APPROVAL. THE FACT THAT SUCH APPROVAL HAS BEEN OBTAINED SHOULD ALSO BE MENTIONED IN THE BODY OF THE ASSESSMENT ORDER ITSEL F.' CHAPTER XIVB ALSO DEALS WITH ASSESSMENT OF SEARCH C ASES. SECTIONS 153A, 153B & 153C HAVE BEEN INTRODUCED TO CHAPTER XIV 'PROCEDURE FOR AKIL GULAMALI SOMJI 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 CHAPTER 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 ORDERS IN THE P RESENT CASE WERE PASSED THE PROVISIONS LAID DOWN U/S. 153D WERE VERY MUCH IN OP ERATION. IN THE PRESENT CASE, ASSESSMENTS IN QUESTION HAVE BEEN FRAMED ON 27.12.2 007. PAGE 7 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 INC OME- TAX OFFICER AS AN ASSESSING AUTHORITY COMES TO AN E ND THE MOMENT THE ASSESSEE FILES OBJECTIONS TO THE DRAFT ORDER. THE P OWER TO DETERMINE THE INCOME OF THE ASSESSEE THEREAFTER GETS VESTED IN TH E INSPECT-ING ASSISTANT COMMISSIONER TO WHOM THE INCOME-TAX OFFICER IS REQU IRED TO FORWARD THE DRAFT ORDER TOGETHER WITH OBJECTIONS. THE ONLY THING THAT REMAINED TO BE DONE BY THE INCOME-TAX OFFICER IS TO PASS A FINAL ORDER IN ACCO RDANCE WITH THE DIRECTIONS GIVEN BY THE INSPECTING ASSISTANT COMMISSIONER. THE FUNCTION OF THE INCOME- TAX OFFICER TO MAKE THE FINAL ASSESSMENT UNDER SECTION 144B(5) OF THE ACT IS MORE IN THE NATURE OF A MINISTERIAL FUNCTION BECAUS E HE CAN PASS THE ORDER ONLY IN ACCORDANCE WITH THE DIRECTIONS OF THE INSPE CTING ASSISTANT COMMISSIONER. HE CANNOT VARY ORDEPART FROM THE DIRE CTIONS GIVEN BY THE INSPECTING ASSISTANT COMMISSIONER. MOREOVER, THE RE QUIREMENTS OF SECTION 144B OF THE ACT RE MANDATORY. THE INCOME-TAX OFFICER HA S 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 COMMISSIONER ALONG WITH THE OBJECTIONS AND WITHOUT OBTAINING THE DIRECTIONS OF THE INSPECTING ASSISTANT COMMISSIONER. AN ASSESSMENT MA DE BY THE INCOME-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 AKIL GULAMALI SOMJI A. Y. 2001-02 TO 2004-05 PAGE OF 14 ORDER OF ASSESSMENT, THE ASSESSEE DID FILE OB JECTIONS AND THE INCOME- TAX OFFICER COMPLETED THE ASSESSMENT HIMSELF ON THE BASIS OF THE DRAFT ORDER WITHOUT FORWARDING THE DRAFT ORDER AND THE OBJECTIO NS TO THE INSPECTING ASSISTANT COMMISSIONER AND OBTAINING DIRECTIONS FRO M HIM. SUCH AN ORDER, ON THE FACE OF IT, IS BEYOND THE POWERS 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 T HE INSTANT CASE WITHOUT REFERENCE TO THE INSPECTING ASSISTANT COMMISSIONER HAD RIGHTLY BEEN ANNULLED BY THE COMMISSIONER OF INCOME-TAX (APPEALS). IN VIE W OF THE ABOVE, WE ANSWER THE QUESTION REFERRED TO US ACCORDINGLY IN F AVOUR 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. COM MISSIONER 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 RE QUIRED TO TAKE APPROVAL OF THE COMPETENT AUTHORITY. THE HON'BLE DELHI HIGH COURT A FTER DISCUSSING THE ISSUE IN DETAIL AND THE CASE LAWS CITED BEFORE IT HAS BEEN PLEASED TO APPROVE THE DECISION OF TRIBUNAL. IN VIEW OF THESE DECISIONS AND THE POSITI ON OF LAW PROVIDED U/S. 153D OF THE ACT, WE HOLD THAT THE ASSESSMENT ORDERS IMPUGNED FR AMED IN ABSENCE OF OBTAINING PAGE 8 PRIOR 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 HEARING TO THE ASSESSEE WAS QUESTIONED BEFORE THE APPELLATE AUTHORITY, WHO SET ASIDE THAT ORDER. THE MATTER ULTIMATELY TRAVELLED TO THE HON'BLE SUPREME COURT AND IT WAS HELD THAT THE ITO WAS WELL WITHIN HIS JURISDICTION TO CONTINUE THE PROCEEDINGS FROM THE S TAGE 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 PRESCRIBED LIMITATION U/S. 275 IN A PENALTY ORDER PASSED AFTER THE CASE IS REMANDED BY AN APPELLATE AUTHORITY. THE HON'BLE COURT WAS PLEASED TO HOLD THAT THE LIMITATION PRESCRIBED U/S. 275 OF THE ACT IS NO T APPLICABLE TO THE PENALTY ORDER PASSED AFTER THE CASE IS REMANDED BY AN APPELLATE A UTHORITY. IN THE CASE OF GAYATRI TEXTILES VS. CIT (SUPRA) NON-OBTAINING OF PRIOR APP ROVAL OF I.A.C U/S. 271(1)(C) (III) FOR DIRECTION FOR PAYMENT OF PENALTY WAS HELD AS PROCED URALLY 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 COMMI SSIONER IS NOT REQUIRED MERELY FOR DIRECTION FOR PAYMENT OF THE DUE AMOUNT OF TAX BUT OVERALL APPROVAL OF THE ASSESSMENT FRAMED BY THE I.T.O. THUS, THE CITED DEC ISION IS NOT APPLICABLE IN THE PRESENT CASE. IN THE CASE OF CIT VS. SARA ENTERPRIS ES (SUPRA), THE ISSUE WAS AS TO WHETHER THE BAR OF LIMITATION CONTAINED U/S. 275 OF THE ACT WOULD ATTENUATE OR CURTAIL THE POWERS OF CIT, VESTED IN HIM U/S. 263 OF THE SA ID ACT. THE HON'BLE MADRAS HIGH COURT WAS PLEASED TO HOLD THAT IT IS NOT HIT BY PRO VISIONS OF SEC. 275 OF THE ACT. IN PRABU DAYAL AMICHAND VS. CIT (SUPRA), THE HON'BLE H IGH COURT 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 AKIL GULAMALI SOMJI A.Y. 2001-02 TO 2004-05 PAGE OF 14 CAN BE CURED. IT IS NOT HELPF UL TO THE REVENUE IN THE PRESENT CASE BECAUSE IN THE PRESENT CASE, THE A.O WAS HAVIN G NO JURISDICTION TO FRAME ASSESSMENT ORDER WITHOUT PRIOR APPROVAL OF JCIT AS NECESSARY REQUIREMENT TO COMPLY WITH U/S. 153D OF THE ACT. IN THE CASE OF CIT VS.DA MODHAR MURALILAL (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) OF THE ACT, THE FIRST APP ELLATE AUTHORITY HAD NO POWER OF REMAND AND THEREFORE, THE PROCEDURAL ILLEGALITY WOU LD NOT BE CORRECTED BY RECOURSE TO REMANDING THE CASE TO THE ITO. HERE IN THE PRESENT CASE, AS WE HAVE ALREADY DISCUSSED, AND ALSO CITED THE RECENT DECISION OF HO N'BLE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF CIT VS. RATNABAI N.K. DUBHASH (MRS.) (SUPRA) AND OF HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. SPL'S SIDDH ARTH LTD. (SUPRA) THAT REQUIREMENT U/S. 153D FOR OBTAINING APPROVAL OF JCIT IS NOT PRO CEDURAL ONLY BUT A MANDATORY REQUIREMENT, HENCE THE CITED DECISION BY THE LD. D. R IS NOT APPLICABLE IN THE CASE OF PRESENT ASSESSEE. UNDER ABOVE CIRCUMSTANCES, THE IS SUE RAISED REGARDING THE VALIDITY OF ASSESSMENT ORDERS IN QUESTION WITHOUT O BTAINING PRIOR APPROVAL U/S. 153D OF THE ACT IS DECIDED IN FAVOUR OF THE ASSESSEE. TH E ASSESSMENT ORDERS IN QUESTION 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 TH E ACT NOWHERE PRESCRIBES A PARTICULAR MODE OF APPROVAL. IT IS SUFFICIENT IF TH E ASSESSING OFFICER SEEKING PAGE 9 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 T HE ACT. 5. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO RI VAL CONTENTIONS. SUFFICE TO SAY, THERE IS HARDLY ANY DISPUTE THAT THE ASSESS ING OFFICER HEREIN HAD IN FACT ASKED FOR THE JCITS APPROVAL U/S. 153D OF THE ACT BEFORE FRAMING ALL THE IMPUGNED ASSESSMENT(S). THE SOLE QUESTION OUR APT A DJUDICATIONS WHETHER THE SAID APPROVAL DATED 28.03.2016 SATISFIES THE RELEVA NT PARAMETERS SETTLED BY VARIOUS JUDICIAL PRECEDENTS OR NOT. MR. MODY AT THI S STAGE INVITES OUR ATTENTION TO CLAUSE 9 OF MANUAL OF OFFICE PROCEDURE, VOLUME-I I (TECHNICAL), FEBRUARY 2003 ISSUED BY THE DIRECTORATE OF INCOME TAX ON BEH ALF OF CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA DEALING WITH THE INSTANT ISSUE OF APPROVAL TO BE FINALIZED IN A PART ICULAR MANNER (SUPRA). HE EMPHASIZES THAT THE ACIT AS WELL AS THE JCITS ACTI ON UNDER CHALLENGE DOES NOT COMPLY THE PRESCRIBED PROCEDURE THEREIN. WE FIN D NO MERIT IN THE INSTANT ARGUMENT SINCE SUCH A MANUAL OF OFFICE PROCEDURE IS FOR MERE INTERNAL CIRCULATION WHICH NOT PERTAKING THE CHARACTER OF CB DTS INSTRUCTIONS PRESCRIBED U/S 119 OF THE ACT. NOR IS THERE ANY MATERIAL TO SU GGEST THAT THIS MANUAL CONFIRMS ALL NECESSARY CONDITIONS IN THE CLINCHING STATUTORY PROVISION U/S 119 OF THE ACT. THE ASS INSTANT ARGUMENT IS REJECTED THER EFORE. 6. WE NOW ADVERT TO THE EQUALLY IMPORTANT ASPECT O F 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 OF ALLEGED APPROVAL ON THE VERY DATE WITH CERTAIN REMARKS AT T HE JCITS BEHEST (SUPRA). THIS APPROVAL MAKES IT CLEAR THAT THE ASSESSING OFF ICER HAD NOT EVEN SENT THE RELEVANT RECORDS FOR THE APPROVING AUTHORITYS APPR AISAL OF ALL THE NECESSARY FACTS. TRIBUNALS YET ANOTHER DECISION IN IT(SS)A NO.01/CTK/2017 GEETARANI PAGE 10 PANDA VS. ACIT DECIDED ON 05.07.2018 EXPLAINS THE AMBIT AND SCOPE OF THE INSTANT 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 W ERE APPROVED U/S.153D BY THE ACIT BEFORE COMPETITION OF THE ASSESSMENT AND, THEREFORE, 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 WE RE APPROVED U/S 153D BY THE LD. ADDL. COMMISSIONER OF INCOME TAX BEFORE COM PLETION OF THE ASSESSMENT AND THEREFORE THE ASSESSMENT ORDER IS LI ABLE TO BE QUASHED. 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 W ITH THE PRIOR 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 FROM THE LD. ADDL. CIT ON 27.03.2015. FOR THIS PROP OSITION IT IS SUBMITTED THAT, THE AO ISSUED NOTICE U/S.142(1) ON 30.3.2015 REQUISITIONING CERTAIN DOCUMENTS, CLARIFICATIONS ET C. IF THE ASSESSMENT WAS COMPLETED PRIOR TO 27 03 2015, THEN HOW THE NOT ICE U/S 142(1) WAS ISSUED ON 30.03.2015. AS A MATTER OF FACT, NO ASSES SMENT WAS COMPLETED ON 27.03.2015 OR PRIOR TO THAT NOR ALSO O RDERS WERE APPROVED BY THE LD. ADDL. COMMISSIONER OF INCOME TA X. THEREFORE, THE ASSESSMENT ORDER PASSED WITHOUT OBTAINING THE APPRO VAL FROM THE ADDL. COMMISSIONER OF INCOME TAX IS ILLEGAL AND VOID AB I NITIO 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 WITH THE PRIOR APPROVAL OF THE JOINT COMMISSIONER. THAT MEAN S IF AN ORDER IS NOT PASSED BY THE JOINT COMMISSIONER THEN THAT ORDER IS TO BE APPROVED BY THE JOINT COMMISSIONER. HERE THE MEANING OF APPROVA L IS NOT SIMPLE APPROVAL OR APPROVAL OF THE ORDER IN THE MECHANICAL MANNER. THE JOINT COMMISSIONER MUST HAVE TO GO THROUGH THE SEIZED DOC UMENTS, NOTICES ISSUED BY THE ASSESSING OFFICER, SUBMISSIONS MADE B Y THE ASSESSEE AND ALSO THE DOCUMENTS SUBMITTED BY THE ASSESSEE, T HEN HE HAD TO APPLY HIS JUDICIOUS MIND TO ALL THE RELEVANT RECORD S AND THEN ONLY THE ORDERS CAN BE APPROVED. IN THE INSTANT CASE THE LAS T NOTICES U/S 142(1) WAS ISSUED ON 30.03.2015 TO WHICH THE SUBMISSIONS W ERE MADE ON 31.03.2015 AND AS MENTIONED IN THE ASSESSMENT ORDER THE ORDERS WERE APPROVED ON 27.03.2015. SO, IT IS NOT KNOWN ON 27.0 3.2015, HOW THE LD. ADDL. CIT HAS APPLIED HIS MIND TO THE NOTICES I SSUED ON 30.03.2015 AND THE SUBMISSION MADE BY THE APPELLANT ON 31.03.2 015. AS A MATTER OF FACT NO ASSESSMENT ORDER WAS APPROVED BY THE LD. ADDL. CIT, THEREFORE THE ASSESSMENT ORDER PASSED BY THE LD. AS SESSING OFFICER IS ILLEGAL AND LIABLE TO BE QUASHED. PAGE 11 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 TTJ 332 (MUMBAI)' IT WAS HELD THAT, 'LEGISLATIVE INTENT IS CLEAR INASMUCH AS PRIOR TO THE INSERTION OF SEC.L53D, THERE WAS NO PROVISIO N FOR TAKING APPROVAL IN CASES OF ASSESSMENT AND REASSESSMENT IN CASES WH ERE SEARCH HAS BEEN CONDUCTED. THUS, THE LEGISLATURE WANTED THE ASSESSMENTS/REASSESSMENTS OF SEARCH AND SEIZURE CAS ES SHOULD BE MADE WITH THE PRIOR APPROVAL OF SUPERIOR AUTHORITIE S WHICH ALSO MEANS THAT THE SUPERIOR AUTHORITIES SHOULD APPLY THEIR MI NDS ON THE MATERIALS ON THE BASIS OF WHICH THE OFFICER IS MAKING THE ASS ESSMENT 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 BY THE L D. AO) HAS APPROVED THE ORDER PRIOR TO THE COMPLETION OF THE ASSESSMENT FROM WHICH IT CAN BE WELL CONCLUDED THAT, THE LD. ADDL. CIT HAD NOT A PPLIED 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 I T 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 TH E IN PRINCIPLE APPROVAL OF THE ADDL. C.I.T. AFTER OBTAIN ING THE SAME AS REQUIRED U/S.L53D OF THE I.T. ACT, 1961. THE IMMINE NT ADDITIONS/DISALLOWANCES WHICH THE ASSESSING OFFICER WAS GOING TO MAKE IN ITS ASSESSMENT ORDERS TO BE PASSED U/S.L 53A(B) OF THE ACT WERE THERE IN THE PROPOSED DRAFT ASSESSMENT ORD ERS. SO THE AVERMENTS OF THE ASSESSEE THAT ASSESSMENT ORDERS WE RE PASSED WITHOUT OBTAINING THE APPROVAL OF THE ADDL. CIT IS ALTOGETHER MISPLACED AND INCORRECT AND NOT BORNE BY THE MATERI AL 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 THE LETTER HAS BEEN PLACED RECORD. ON PERUSAL OF TH E APPROVAL LETTER, IT IS CLEARLY EVIDENT THAT THE ADDL. C7 ASK ED THE A.O. TO VERIFY OPENING BALANCE WITH EVIDENCE FAILING WHICH THE OPENING BALANCE MAY BE ADDED TO THE TOTAL INCOME. THEREFORE , THE A.O. ISSUED THE ALLEGED NOTICE U/S. 142(1) ASKING THE AP PELLANT TO PROVE THE SAME WITH EVIDENCE. THE COUNSEL OF THE AP PELLANT APPEARED IN RESPONSE TO THE NOTICE, BUT PRODUCED NO EVIDENCE AND HENCE, THE ALLEGED ADDITION TO THE TOTAL INCOME WAS MADE. IN VIEW OF THE ABOVE, IT IS HELD THAT THERE IS NO STRE NGTH IN THE ARGUMENT OF THE LD. A.R. ALLEGING VIOLATION OF PROV ISIONS OF SEC. 153 D OF THE ACT AND HENCE, THE GROUND OF APPEAL IS REJECTED. PAGE 12 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 O N 31.3.2015. THE APPROVAL WAS OBTAINED FROM THE ADDL. COMMISSIONER O F INCOME TAX, RANGE-1, BHUBANESWAR ON 27.3.2015 AND FILED COPY OF THE SAME . NOTICE U/S.142(1) OF THE ACT WAS ISSUED ON 30.3.2015 AND REFERRED TO PAG ES 15 & 16 OF PAPER BOOK, WHERE COPY OF THE SAME IS PLACED. ON THE ABOV E STATED FACTS, LD A.R. OF THE ASSESSEE SUBMITTED THAT ACCORDING TO THE PROVIS IONS OF SECTION 153D OF THE ACT, NO ORDER OF ASSESSMENT OR REASSESSMENT SHA LL BE PASSED BY AN ASSESSING OFFICER BELOW THE RANK OF JOINT COMMISSIO NER OF INCOME TAX IN RESPECT OF EACH ASSESSMENT YEAR REFERRED TO IN CLAU SE (B) OF SUB-SECTION(1) OF 153A EXCEPT WITH THE PRIOR APPROVAL OF THE JOINT CO MMISSIONER OF INCOME TAX. HE SUBMITTED THAT IT WILL BE OBSERVED FROM THE ASSE SSMENT ORDER DATED 31.3.2015 PASSED U/S.153A(B) IN THE CASE OF GEETARA NI PANDA, THE ASSESSING OFFICER ASSESSED THE INCOME OF THE ASSESSEE AT RS.2 4,67,700/-, WHEREAS AS PER THE APPROVAL LETTER OF THE ADDL. COMMISSIONER O F INCOME TAX, RANGE-1, BHUBANESWAR DATED 27.3.2015, THE INCOME ASSESSED AT RS.1,31,960/- IN THE ASSESSMENT YEAR 2007-2008 AND IN ORDER DATED 31.3.2 015 IN THE CASE OF SMT. MANJUSMTA DASH, THE ASSESSING OFFICER ASSESSED THE INCOME OF THE ASSESSEE AT RS.3,44,785/-, WHEREAS AS PER THE APPROVAL LETTE R OF THE ADDL. CIT, RANGE- 1, BHUBANESWAR DATED 27.3.2015, THE INCOME ASSESSED AT RS.1,31,000/- AND, THEREFORE, THE ASSESSMENT ORDERS PASSED BY THE ASSE SSING 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. SHREELEKHA DAMANI 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/REASSESSMENTS OF SEARCH AND SEIZURE CAS ES SHOULD BE MADE WITH THE PRIOR APPROVAL OF SUPERIOR AUTHORITIE S WHICH ALSO MEANS THAT THE SUPERIOR AUTHORITIES SHOULD APPLY THEIR MI NDS ON THE MATERIALS ON THE BASIS OF WHICH THE OFFICER IS MAKING THE ASS ESSMENT 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): 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 COMMISS IONER OR COMMISSIONER, DIRECT THE ASSESSEE TO GET THE ACCOUN TS AUDITED BY AN PAGE 13 ACCOUNTANT, AS DEFINED IN THE EXPLANATION BELOW SUB -SECTION (2) OF SECTION 288, NOMINATED BY THE COMMISSIONER IN THIS BEHALF AND TO FURNISH A REPORT OF SUCH AUDIT IN THE PRESCRIBED FO RM DULY SIGNED AND VERIFIED BY SUCH ACCOUNTANT AND SETTING FORTH SUCH PARTICULARS AS MAY BE PRESCRIBED AND SUCH OTHER PARTICULARS AS THE ASS ESSING 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 T O: (I) THE NATURE AND COMPLEXITY OF THE ACCOUNTS OF THE ASSESS EE; AND (II) THE INTERESTS OF THE REVENUE. THE WORD ' AND ' SIGNIFIES CONJUNCTION AND NOT DISJUNCTION. IN OTHER WORDS, TH E TWIN CONDITIONS OF 'NATURE AND COMPLEXITY OF THE ACCOUNT S' AND ' THE INTERESTS OF THE REVENUE ' ARE THE PREREQUISITES FOR EXERCISE OF POWER UNDER SECTION 142(2A) OF THE ACT. UNDOUBTEDLY , THE OBJECT BEHIND ENACTING THE SAID PROVISION IS TO ASSIST THE ASSESSING OFFICER IN FRAMING A CORRECT AND PROPER ASSESSMENT BASED ON THE ACCOUNTS MAINTAINED BY THE ASSESSEE AND WHEN HE FIN DS THE ACCOUNTS OF THE ASSESSEE TO BE COMPLEX, IN ORDER TO PROTECT THE INTERESTS OF THE REVENUE, RECOURSE TO THE SAID PROV ISION CAN BE HAD. THE WORD ' COMPLEXITY ' USED IN SECTION 142(2A) IS NOT DEFINED OR EXPLAINED IN THE ACT. AS OBSERVED IN SWA DESHI COTTON MILLS CO. LTD. V. CIT [1988] 171 ITR 634 1 (ALL.), IT IS A NEBULOUS WORD. ITS DICTIONARY MEANING IS: 'THE STATE OR QUAL ITY OF BEING INTRICATE OR COMPLEX OR THAT IS DIFFICULT TO UNDERS TAND. HOWEVER, ALL THAT IS DIFFICULT TO UNDERSTAND SHOULD NOT BE R EGARDED AS COMPLEX. WHAT IS COMPLEX TO ONE MAY BE SIMPLE TO AN OTHER. IT DEPENDS UPON ONES LEVEL OF UNDERSTANDING OR COMPRE HENSION. SOMETIMES, WHAT APPEARS TO BE COMPLEX ON THE FACE O F IT, MAY NOT BE REALLY SO IF ONE TRIES TO UNDERSTAND IT CARE FULLY.' THUS, BEFORE DUBBING THE ACCOUNTS TO BE COMPLEX OR DIFFIC ULT TO UNDERSTAND, THERE HAS TO BE A GENUINE AND HONEST AT TEMPT ON THE PART OF THE ASSESSING OFFICER TO UNDERSTAND ACC OUNTS MAINTAINED BY THE ASSESSEE; APPRECIATE THE ENTRIES MADE THEREIN AND IN THE EVENT OF ANY DOUBT, SEEK EXPLANA TION FROM THE ASSESSEE. BUT OPINION REQUIRED TO BE FORMED BY THE ASSESSING OFFICER FOR EXERCISE OF POWER UNDER THE SAID PROVIS ION MUST BE BASED ON OBJECTIVE CRITERIA AND NOT ON THE BASIS OF SUBJECTIVE SATISFACTION. THERE IS NO GAINSAYING THAT RECOURSE TO THE SAID PROVISION CANNOT BE HAD BY THE ASSESSING OFFICER ME RELY TO SHIFT HIS RESPONSIBILITY OF SCRUTINIZING THE ACCOUNTS OF AN ASSESSEE PAGE 14 AND PASS ON THE BUCK TO THE SPECIAL AUDITOR. SIMILA RLY, THE REQUIREMENT OF PREVIOUS APPROVAL OF THE CHIEF COMMI SSIONER OR THE COMMISSIONER IN TERMS OF THE SAID PROVISION BEI NG AN INBUILT PROTECTION AGAINST ANY ARBITRARY OR UNJUST EXERCISE OF POWER BY THE ASSESSING OFFICER, CASTS A VERY HEAVY DUTY ON T HE SAID HIGH RANKING AUTHORITY TO SEE TO IT THAT THE REQUIREMENT OF THE PREVIOUS APPROVAL, ENVISAGED IN THE SECTION IS NOT TURNED IN TO AN EMPTY RITUAL. NEEDLESS TO EMPHASISE THAT BEFORE GRANTING APPROVAL, THE CHIEF COMMISSIONER OR THE COMMISSIONER, AS THE CASE MAY BE, MUST HAVE BEFORE HIM THE MATERIAL ON THE BASIS WHER EOF AN OPINION IN THIS BEHALF HAS BEEN FORMED BY THE ASSES SING OFFICER. THE APPROVAL MUST REFLECT THE APPLICATION OF MIND T O 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 THERE FORE WAS GRANTED BY THE CHIEF COMMISSIONER OF INCOME-TAX BUT MERELY ONE G. P. AGARWAL WAS NOMINATED. AN ARGUMENT HAS BEEN ADVANCE D TO THE EFFECT THAT BY MAKING SUCH A NOMINATION, APPROVAL WILL BE DEEMED TO HAVE BEEN GRANTED. THE ANSWER TO THE SAID CONTENTION MUS T BE RENDERED IN THE NEGATIVE. THE CHIEF COMMISSIONER OF INCOME-TAX BEFORE GRANTING SUCH APPROVAL MUST HAVE BEFORE HIM THE MATERIALS ON THE BASIS WHEREOF AN OPINION HAD BEEN FORMED. A PRIOR APPROVA L CAN BE GRANTED ONLY WHEN THE MATERIALS FOR APPOINTMENT OF THE EXTR AORDINARY PROCEDURE IS REQUIRED TO BE TAKEN BY THE ASSESSING OFFICER. T HE ASSESSING OFFICER, THEREFORE, WAS REQUIRED TO PLACE ALL MATERIALS BEFO RE 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 REGARD TO THE NATURE AND COMPLEXITY OF THE A CCOUNTS 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 PREVIOUS APPROVAL WAS SOUGHT F OR BUT MERELY A PROPOSAL WAS PLACED FOR PERUSAL OF THE CHIEF COMMIS SIONER OF INCOME- TAX AND FOR APPOINTMENT OF A SPECIAL AUDITOR. THE C HIEF COMMISSIONER OF INCOME-TAX, THEREFORE, DID NOT APPLY HIS MIND AT ALL AS REGARDS THE PREREQUISITE FOR GRANT OF PREVIOUS APPROVAL AND MEC HANICALLY APPOINTED SRI G. P. AGARWAL, AS A SPECIAL AUDITOR. THE SAID O RDER DEPICTS A TOTAL NON-APPLICATION OF MIND ON THE PART OF THE ASSESSIN G OFFICER AS ALSO THE CHIEF COMMISSIONER OF INCOME-TAX. 11.7. ANOTHER SECTION RELEVANT TO THE FACTS IN ISSU E IS SEC. 158BG WHICH READ AS UNDER: PAGE 15 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 PASSED 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, AFTER THE 30TH DAY OF JUNE, 1995, BUT BEFORE THE 1ST DAY OF J ANUARY, 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 SCRUTINIZED 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 S INGLE ORDER PASSED ON 31-3-1997 WITHOUT GIVING ANY REASON WHATSOEVER. AS WE HAVE RECORDED ELSEWHERE ABOVE, THE DRAFT ASSESSMENT ORDE RS OF THE BLOCK PERIOD IN ALL THESE CASES WERE MADE ON 31-3-1997 AN D ON THE VERY SAME DAY, I.E., ON 31-3-1997 THE COMMISSIONER GRANT S APPROVAL AND THAT TOO WITHOUT GIVING OR RECORDING ANY REASONS WH ATSOEVER. THE APPROVAL ORDER DOES NOT DISCLOSE THE POINTS WHICH W ERE CONSIDERED BY THE COMMISSIONER AND THE REASONS FOR ACCEPTING THEM . IN OUR VIEW, THIS IS TOTALLY AN UNSATISFACTORY METHOD OF GRANTING APP ROVAL IN EXERCISE OF JUDICIAL POWER VESTED 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 TR IBUNAL AT PARA-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 M IND. 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 BEEN FURTHER OBSERVED THAT IN LAW WHERE ANY ACT OR FUNCTION REQU IRES APPLICATION OF MIND AND JUDICIAL DISCRETION OR APPROACH BY ANY AUT HORITY, IT PARTAKES AND ASSUMES THE CHARACTER AND STATUS OF A JUDICIAL OR AT LEAST QUASI- JUDICIAL ACT, PARTICULARLY BECAUSE THEIR ACT, FUNCT ION, IS LIKELY TO AFFECT THE RIGHTS OF AFFECTED PERSONS. PAGE 16 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 O F UNITED 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 FR OM THE 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 SATISFIED, ON THE REASONS RECORDED BY THE ASSESSING OFFICER CO NCERNED, THAT IT IS A FIT CASE FOR THE ISSUE OF SUCH NOTICE. THESE ARE SOME I N-BUILTS SAFEGUARDS TO PREVENT ARBITRARY EXERCISE OF POWER BY AN 7 ITA NOS .534 & 611/M/04 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 P ROVISO TO SUB-SECTION (1) OF SECTION 151 OF THE ACT AS THE ACTION UNDER SECTI ON 147 WAS BEING INITIATED AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE POWER VESTED IN THE COMMISSIONER TO GRANT OR NO T TO GRANT APPROVAL IS COUPLED WITH A DUTY. THE COMMISSIONER IS REQUIRED T O APPLY HIS MIND TO THE PROPOSAL PUT UP TO HIM FOR APPROVAL IN THE LIGHT OF THE MATERIAL RELIED UPON BY THE ASSESSING OFFICER. THE SAID POWER CANNOT BE EXE RCISED CASUALLY AND IN A ROUTINE MANNER. WE ARE CONSTRAINED TO OBSERVE THAT IN THE PRESENT CASE THERE HAS BEEN NO APPLICATION OF MIND BY THE ADDITIONAL C OMMISSIONER 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. COMMISSIONER HAS SHOWED HIS INABILITY TO ANALYZE TH E ISSUES OF DRAFT ORDER ON MERIT CLEARLY STATING THAT NO MUCH TIME IS LEFT, IN ASMUCH AS THE DRAFT ORDER WAS PLACED BEFORE HIM ON 31.12.2010 AND THE APPROVAL WA S GRANTED ON THE VERY SAME DAY. CONSIDERING THE FACTUAL MATRIX OF THE APP ROVAL LETTER, WE HAVE NO HESITATION TO HOLD THAT THE APPROVAL GRANTED BY THE ADDL. COMMISSIONER IS DEVOID OF ANY APPLICATION OF MIND, IS MECHANICAL AN D WITHOUT CONSIDERING THE MATERIALS ON RECORD. IN OUR CONSIDERED OPINION, THE POWER VESTED IN THE JOINT COMMISSIONER/ADDL COMMISSIONER TO GRANT OR NOT TO G RANT APPROVAL IS COUPLED WITH A DUTY. THE ADDL COMMISSIONER/JOINT COMMISSION ER IS REQUIRED TO APPLY HIS MIND TO THE PROPOSALS PUT UP TO HIM FOR APPROVA L IN THE LIGHT OF THE MATERIAL RELIED UPON BY THE AO. THE SAID POWER CANNOT BE EXE RCISED CASUALLY AND IN A ROUTINE MANNER. WE ARE CONSTRAINED TO OBSERVE THAT IN THE PRESENT CASE, THERE HAS BEEN NO APPLICATION OF MIND BY THE ADDL. COMMIS SIONER BEFORE GRANTING THE APPROVAL. THEREFORE, WE HAVE NO HESITATION TO H OLD THAT THE ASSESSMENT ORDER MADE U/S. 143(3) OF THE ACT R.W. SEC. 153A OF THE ACT IS BAD IN LAW AND DESERVES TO BE ANNULLED. THE ADDITIONAL GROUND OF A PPEAL IS ALLOWED. PAGE 17 13. THE LD. DEPARTMENTAL REPRESENTATIVE HAS STRONGL Y RELIED UPON THE DECISION OF THE TRIBUNAL MUMBAI BENCH IN THE CASE OF RAFIQUE ABDUL HAMID KOKANI VS DCIT 113 TAXMAN 37, HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF RISHABCHAND BHANSALI VS DCIT 136 TAXMAN 579 AND HON BLE HIGH COURT OF MADRAS IN THE CASE OF SAKTHIVEL BANKERS VS ASSTT. C OMMISSIONER 124 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 L D. 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 AS SESSEE BEFORE GRANTING THE APPROVAL. THIS IS NOT THE ISSUE BEFORE US AS THE LD . COUNSEL HAS NEVER ARGUED THAT THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY OF BEING HEARD. THESE DECISIONS THEREFORE WOULD NOT DO ANY GOOD TO THE RE VENUE. 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 I N 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 GRANTING OF APPROVAL IN ALL THE 22 CASES WAS COMPLETED IN ONE S INGLE DAY ITSELF I.E. 31ST MARCH, 2013. THUS, IT IS APPARENT THAT THE JCIT DID NOT HAVE ADEQUATE TIME TO APPLY HIS MIND TO THE MATERIAL ON THE BASIS OF WHIC H THE AO HAD MADE THE DRAFT ASSESSMENT ORDERS. TRIBUNAL, MUMBAI BENCH AND TRIBUNAL ALLAHABAD BENCH IN THEIR ORDERS, AS DISCUSSED IN THE PRECEDIN G PARAGRAPHS, HAVE LAID DOWN THAT THE POWER TO GRANT APPROVAL IS NOT TO BE EXERCISED CASUALLY AND IN ROUTINE MANNER AND FURTHER THE CONCERNED AUTHORITY, WHILE GRANTING APPROVAL, IS EXPECTED TO EXAMINE THE ENTIRE MATERIAL BEFORE A PPROVING 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 APPLICATION OF MIND. IN ALL THE CASES BEFORE US, THE DEPARTMENT COULD NOT DEMONSTRATE, BY COGENT EVIDENCE, THAT THE JT. CIT HAD ADEQUATE TIME WITH HIM SO AS TO GRANT APPROVAL AFTER DULY EX AMINING THE MATERIAL PRIOR TO APPROVING THE ASSESSMENT ORDER. THE CIRCUMSTANCES I NDICATE THAT THIS EXERCISE WAS CARRIED OUT BY THE JT. CIT IN A MECHAN ICAL MANNER WITHOUT PROPER APPLICATION OF MIND. ACCORDINGLY, RESPECTFULLY FOLL OWING THE RATIO OF THE CO- ORDINATE BENCHES OF MUMBAI AND ALLAHABAD AS AFOREME NTIONED AND ALSO APPLYING THE RATIO OF THE JUDGMENT OF THE HON'BLE A PEX COURT IN THE CASE OF SAHARA INDIA (FIRM) VS. CIT (SUPRA), WE HOLD THAT T HE 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 HIM IS NOT AN APPROVAL WHICH CAN BE SUSTAINED. ACCORDINGLY, ASSESSMENTS IN THREE COS AN D 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 PROP ER. 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. PAGE 18 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 VERIFIAB LE AND THE ENTIRE RECEIPTS ALONGWITH OPENING CAPITAL HAVE BEEN SHOWN AS CASH I N 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. BESIDES, INVESTMENT OF RS. 4 LACS IN FIXED DEPOSITS AND RS. 3 LACS IN MIS IN POST OFFICE HAS BEEN SHOWN. THIS APPEARS QUITE UNUSUAL A S THE ASSESSEE WAS MAINTAINING BANK ACCOUNT WITH PUNJAB NATIONAL BANK. NO PRUDENT PERSON WOULD KEEP SUCH A BIG CASH AMOUNT IN HIS HAND DESPI TE 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 THIS 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 GIV EN APPROVAL TO THE ORDER OF THE ASSESSING OFFICER AND WHILE DOING SO, HE HAS DI RECTED 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 A SSESSMENT ORDER. HENCE, IT IS WRONG TO SAY THAT THE ORDER OF THE ASSESSING OFF ICER IS NOT APPROVED BY THE 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 THE VERY DAY OF RECEIPT OF THE DRAFT ORDER FROM THE ASSESSING OFFIC ER, WHICH IS NOT THE CASE AT HAND, WHEREIN, THE DRAFT ORDERS WERE RECEIVED BY TH E 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 H IS LETTER 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. 1 53D ON OR BEFORE 23.03.2015, THE DRAFT ORDERS IN M/S. NEELACHAL CARB O METALICKS PVT. LTD. GROUP OF CASES HAS BEEN RECEIVED IN THIS OFFIC E ONLY ON ILL 26TH MARCH, 2015 IN THE AFTERNOON. THE DRAFT ORDERS HAVI NG BEING SUBMITTED ONLY 5 DAYS BEFORE FINAL ORDERS ARE GETTING BARRED BY LIMITATION,, I HAVE NO OTHER OPTION BUT TO ACCORD THE APPROVAL TO THE S AME AS THE APPROVAL PAGE 19 IS STATUTORILY REQUIRED U/S. 153D, EVEN THOUGH THER E IS NO TIME LEFT FOR UNDERSIGNED TO ENSURE THAT ALL THE POINTS RAISED IN THE APPRAISAL REPORT, THE APPELLATE PROCEEDINGS, AUDIT INSPECTION ETC. AR E DULY TAKEN INTO ACCOUNT, AND THE ENQUIRIES AND INVESTIGATIONS THAT ARE REQUIRED TO BE MADE ARE ACTUALLY MADE BEFORE FINALIZATION OF THE A SSESSMENT ORDERS. IT WOULD HAVE BEEN MUCH BETTER AND IN THE INTEREST OF REVENUE, IF YOU HAD SUBMITTED THE DRAFT ORDERS ATLEAST ONE MONTH EA RLIER SO AS TO ALLOW THE UNDERSIGNED SOMETIME TO GO THROUGH AND ANALYSE THE SAME VIS-A- VIS THE APPRAISAL REPORT AND SEIZED RECORDS. IT ALS O GOES WITHOUT SAYING THAT YOU NEVER CARED EVEN TO DISCUSS THESE CASES WI TH THE UNDERSIGNED 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. 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 AND GRANTED NECESSARY APPROVAL TO EXAMINE THE CASH IN HAND BEFORE PASSING THE ASSESSMENT ORDER. HE ARGUED THAT THE SAID DETAILS SHOW THAT THOUGH TH ERE WAS SHORTAGE OF TIME, THE ADDL. CIT HAS APPLIED HIS MIND BEFORE GRANTING APPROVAL TO THE ASSESSMENT 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 C ONTESTED 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 PROPOSIT ION IS IT TO BRING TO YOUR KIND NOTICE THAT, THE NOTICE U/S 142(1) WAS IS SUED AND SERVED ON THE APPELLANT ON 30.03.2015 TO WHICH THE HEARING WA S FIXED ON 31.03.2015. ON 31.03.2015, THE A/R OF THE APPELLANT APPEARED AND FILED THE REQUIRED DOCUMENTS, EXPLANATIONS AND NECE SSARY WRITTEN SUBMISSION. AS PER THE PROVISIONS OF THE ACT AFTER GETTING OF THE DOCUMENTS, SUBMISSIONS ETC THE LD ASSESSING OFFICER APPLIED HIS JUDICIOUS MIND AND THEN PREPARE THE DRAFT ORDER WHI CH WERE SENT TO THE LD. ADDL. CIT WHO HAD GONE THROUGH THE SEIZED MATER IALS/DOCUMENTS, NOTICES ISSUED BY THE LD. ASSESSING OFFICER, DOCUME NTS AND SUBMISSIONS SUBMITTED BY THE APPELLANT AND AFTER BE ING 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. 'A SSESSING OFFICER. HUMANLY ALL THESE ACTIVITIES ARE NOT POSSIBLE WITHI N ONE DAY. MOREOVER PAGE 20 FROM THE SYSTEM, IT CAN BE VERIFIED THAT, THE ASSES SMENT ORDER PASSED BY THE LD. ASSESSING OFFICER WERE NOT UPLOADED WHIC H AGAIN PROVE THAT, THE ASSESSMENT ORDERS WERE NOT PASSED WITHIN THE DU E 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, RAT HER IT HAD BEEN PASSED AFTER THE EXPIRY OF THE DUE DATE AND BACK DA TED. THEREFORE THE ASSESSMENT ORDERS ARE BARRED BY LIMITATION AND LIAB LE TO BE QUASHED. 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 L D. ASSESSING PREFER TO CALL THE A/R AND HANDED OVER THE ORDERS ON 08.04 .2015. AGAIN QUESTION ARISES IF THE ORDERS WERE PASSED ON 31.03. 2015 WHY THE ORDERS 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 ORDERS WERE NEVER PASSED WITHIN THE DUE DATE, THEY ARE BACK DATED. HENCE THE ASSESSMENT ORDERS ARE BAR RED 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 BECAUS E, THE LAW IN THIS RESPECT IS THAT THE ORDER SHOULD NOT LOOK ONLY TO H AVE BEEN MADE WITHIN LIMITATION, IT SHOULD BE OUT OF REACH OF THE AUTHOR ITY MAKING THE ASSESSMENT ORDER WITHIN THE LIMITATION. FOR THIS FI NDING THE RELIANCE MAY BE PLACED ON B.J.SHELAT VS. STATE OF GUJRAT; AIR 19 78 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 MAD E, SIGNED AND KEPT IN THE FILE, BECAUSE SUCH ORDER MAY BE LIABLE TO CHANG E AT THE HANDS OF THE AUTHORITY WHO MAY MODIFY IT, OR EVEN DESTROY IT , BEFORE IT IS MADE KNOWN, BASED ON SUBSEQUENT INFORMATION, THINKING, O R CHANGE OF OPINION. TO MAKE THE ORDER COMPLETE AND EFFECTIVE, IT SHOULD BE ISSUED, SO AS TO BE BEYOND THE CONTROL OF THE AUTHORITY CON CERNED, FOR ANY POSSIBLE CHANGE OR MODIFICATION THEREIN. THIS SHOUL D BE DONE WITHIN THE PRESCRIBED PERIOD, THOUGH THE ACTUAL SERVICE OF THE ORDER MAY BE BEYOND THAT PERIOD.' D. FURTHER IT IS SUBMITTED THAT, THE HON'BLE JURISD ICTIONAL ITAT RESPECTFULLY FOLLOWING THE AFORESAID DECISION IN TH E CASE OF ACIT, CIRCLE- 2(2) VS. ORISSA STEVEDORES LTD. VIDE ITA NO.409-411 /2011 & CO NO.30-32/CTK/2011, IT WAS HELD THE COMMUNICATION IS CONDITION PRECEDENT TO AN ORDER OF ASSESSMENT BECOMING EFFECT IVE. PAGE 21 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 LIMIT ATION. 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 LI ABLE TO BE QUASHED. SIMILAR VIEW WAS ALSO EXPRESSED IN THE FOLLOWING RA TIOS: 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. PATEL, (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 OBSERVATION/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 FOL LOWING 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 BEFORE THE A.O. IN ORDER TO ACT ON BEHALF, THE ASSESSEE A.R. A POWE R OF ATTORNEY (POA) HAS BEEN SUBMITTED AT THE OUT SET OF THE CASE. THAT POA AUTHORIZES THE A.R. TO TAKE COPIES OF THE ASSESSMENT ORDERS. THAT POA ALSO AUTHORIZES THE A.O. TO GET THE ASSESSMENT ORDER(S) SERVED ON THE ASSESSEE THROUGH HIS/HER A.R. BEING IT A GROUP CASE ALL ASSESSMENT ORDERS AFTER THE SCRUTINY PROCEEDINGS BEING COMPLET ED, HAVE BEEN SERVED ON THE ASSESSEE THROUGH HER A.R. ON 08.04.20 15AND THE RECEIPT OF THE ORDERS HAS BEEN DULY ACKNOWLEDGED BY THE A.R . ALSO. THE, SCRUTINY PROCEEDINGS WERE COMPLETED BY 31.03.20,15 AND ASSESSMENT ORDERS HAVE BEEN SERVED ON 08.04.2015. NO INORDINAT E DELAY HAS HAPPENED. WHEN THE A.R. IS READY TO ACT IN EVERY RE SPECTS [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 O RDER SERVING OF ASSESSMENT ORDER (S) WHICH RESULTED IN DEMAND BY HA ND DID NOT VIOLATE ANY RULE. ' PAGE 22 (II). IT IS NOWHERE MENTIONED IN THE STATUTE THAT T HE ASSESSMENT ORDER WOULD HAVE TO BE SERVED ON THE ASSESSEE. AIL THAT I S REQUIRED IS THAT THE NOTICE OF DEMAND SPECIFYING THE SUM PAYABLE SHOULD BE SERVED ON THE ASSESSEE IN THE PRESCRIBED FORM AND WOULD BE ACCOMP ANIED BY AN ASSESSMENT AS HELD IN THE CASE OF CIT VS. KAILASHO DEVI BURMAN (1978) 115 ITR 732 (CAL.,) SIVALINGAM CHETTIAR (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 (DELHI) SAHARANPUR LIGHT RAILWAY CO . LTD. VS. CIT (1994) 208 ITR 882 (CAL), ETC. THE LIMITATION PERIO D PRESCRIBED IN SECTION 153 IS THE PERIOD WITHIN WHICH THE AO HAS T O COMPLETE ONE STAGE OF THE PROCEEDINGS, THAT IS, THE ASSESSMENT O F THE INCOME AND THE DETERMINATION OF THE TAX PAYABLE. IT IS NOT NEC ESSARY THAT THE TERMS OF THE ORDER OF ASSESSMENT SHOULD, ALSO BE COMMUNIC ATED TO THE ASSESSEE WITHIN THAT PERIOD [RELIED ON RM.P.R. VISW ANATHAN CHETTIAR VS. CIT (1954) 25 ITR 79 (MAD.) APPROVED IN CIT VS. BALKRISHNA MALHOTRA (1972) 81 ITR 759 (SC), ESTHURI ASWATHIAH VS. 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 E STATE (1998) 234 ITR 187, 188 (KER.) ETC.]. WHAT IS REQUIRED FOR COM PLETION OF THE ASSESSMENT IS THE DETERMINATION OF THE TAX LIABILIT Y AND ISSUE OF DEMAND NOTICE, BUT CERTAINLY NOT THE -SERVICE OF THE SAME ON THE ASSESSEE. [INDIA FERRO ALLOY INDUSTRY PVT. LTD. VS. CIT (1993 ) 202 ITR 671, 677 (CAL.), N. SUBHA RAO 48 ITR 808 (MYS.)]. IN THE CAS E OF ESTHURI ASWATHIAH VS. CIT (1963) 50 ITR 764 (MYS.), THE ORD ER UNDER SECTION 143(3) DATED 29-02-1961 WAS SERVED TO THE ASSESSEE ON 04-04-1961. THE HON'BLE HIGH 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 16-03-1968 WAS SERVED ON 13-04-1968 AN D 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 ASSESSME NT ORDER SERVED ON 08.04.2015 IS VALID AND NOT TIME BARRED A S HELD IN THE CASE OF SEWDUTTROY RAMBULLAY & SONS VRS. CIT (CAL) 204 I TR 580, CIT VRS. T.O. ABRAHAM & CO.) (KER) 333 ITR 182. IN SIMILAR F ACTS AND CIRCUMSTANCES OF THE CASE, THE HON'BLE JURISDICTION AL TRIBUNAL REJECTED THE APPEAL OF THE ASSESSEE IN CASE OF CIT VRS. SOPH IA STUDY CIRCLE IN ITA NO.286/CTK/2012 FOR A.Y.2008-09 AND THE RELEVAN T PORTION OF THE ORDER 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 SHOWS THAT THE WORD USED AS ' NO ACTION SHALL BE TAKEN '. SIMILARLY, IN THE PROVISIONS OF SECTION 148 OF THE ACT, THE WORDS USED ARE 'SHALL SERVE ON THE ASSESSEE'. SIMILARLY, IN TH E PROVISIONS OF SECTION PAGE 23 149 OF THE ACT, THE WORDS USED ARE ISSUE TO THE ASS ESSEE'. THUS, EACH WORD USED IN EACH SECTION HAS A DIFFERENT PURPOSE A ND DIFFERENT MEANING. 'MADE' CANNOT BE TREATED ON THE SAME FOOTI NG 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 SA ID DATE. IT DOES NOT MEAN THAT IT SHOULD BE SERVED. ON THIS GROUND I TSELF AS WE FIND THAT THE DECISION OF THE COORDINATE BENCH HAS ERRONEOUSL Y LAID DOWN THE LAW ON THIS ISSUE IF THE WORD 'MADE' IS GIVEN THE M EANING 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 TA KEN BY THE COORDINATE BENCH IN THE CASE OF DURGA CONDEV PVT. L TD. (SUPRA) AS ALSO DECISION OF SHANTI LAI GODAWAT & ORS. VRS. ACI T (2009) 126 TTJ(JODH) 135. HERE, WE MAY SPECIFICALLY MENTION TH AT IN THE CASE OF DURGA CONDEV PVT. LTD. (SUPRA), THOUGH ONE OF US IS CO SIGNATORY IN THAT ORDER STILL WE DIFFER FROM THE SAID ORDER AS T HERE IS NO BRAVERY. PERPETUATING AN ERROR IN LAW. THE FACT THAT THE ASS ESSMENT 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 SUSTA INABLE IN LAW AS UNDER THE PROVISIONS OF THE GENERA/ CLAUSES ACT GOV ERNMENT DOCUMENT CANNOT BE QUESTIONED UNLESS AND UNTIL SUBSTANTIAL E VIDENCE HAS BEEN PRODUCED TO DISLODGE THE VERACITY OF THE SAME. UND ER THESE CIRCUMSTANCES, S IT IS NOTICED THAT THE ASSESSMENT ORDER IS DT. 31.12.2010 AND AS NO EVIDENCE HAS BEEN PRODUCED TO SHOW OR TO PROVE THE ALLEGATION THAT THE ORDER WAS BACK DATED, THE T ECHNICAL 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 SERV ICE 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 CI T(A) IN THE CASE OF MANJUSMITA DASH SUBMITTED THAT THE CIT(A) HAS CALLE D FOR A REMAND REPORT U/S.250(4) OF THE ACT DATED 23.9.2016 AND IN REPLY TO THE SAME, THE ASSESSING 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 POWER OF ATTORNEY (POA) HAS BEEN SUBMITTED AT THE OUTSET OF THE CASE. THAT POA AUTHORIZES THE A.R. TO TAKE COPIES OF THE ASSESSMEN T ORDERS. THAT POA ALSO AUTHORIZES THE A.O. TO GET THE ASSESSMENT ORDE R(S) SERVED ON THE ASSESSEE THROUGH HIS/HER A.R. BEING IT A GROUP CASE ALL ASSESSMENT ORDERS AFTER THE SCRUTINY PROCEEDINGS BEING COMPLET ED, HAVE BEEN SERVED ON THE ASSESSEE THROUGH HER A.R. ON 08.04.20 15 AND THE PAGE 24 RECEIPT OF THE ORDERS HAS BEEN DULY ACKNOWLEDGED BY THE A.R. ALSO. THE SCRUTINY PROCEEDINGS WERE COMPLETED BY 31.03.20 15 AND ASSESSMENT ORDERS HAVE BEEN SERVED ON 08,04.2015. N O 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 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 A SSESSMENT ORDER SERVING OF ASSESSMENT ORDER (S) WHICH RESULTED IN D EMAND BY HAND DID NOT VIOLATE 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 DELI VERED BY HAND TO THE ASSESSEE ON 8.4.2015, THE SAME WAS BARRED BY LIMITA TION AND, THEREFORE, 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 REQUI RES 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 ORDER WAS PASSED ON 31.3.2015, IT WAS SERVED ON THE LD A.R. O F THE ASSESSEE BY HAND ON 8.4.2015. HE RELIED ON THE DECISION OF HONBLE CALC UTTA HIGH COURT IN THE CASE OF BINANI INDUSTRIES LTD VS. CIT (2015) 59 TAXMANN. COM 389 AND SUBMITTED THAT THE HONBLE HIGH COURT HAS UPHELD THE ORDER IN ABSENCE OF ANY MATERIAL TO SHOW THAT THE ASSESSING OFFICER REVISITED THE ORDER S AFTER 31.12.2016. 19. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED TH E ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN T HE INSTANT CASE, THE ASSESSEE HAS RAISED TWO LEGAL ISSUES. FIRSTLY, THE ORDER OF ASSESSMENT BEING ISSUED AFTER THE STATUTORILY PERMITTED TIME IS BARR ED BY LIMITATION. SECONDLY, NO REQUISITE APPROVAL AS ENVISAGED UNDER THE PROVISION S OF SECTION 153D OF THE ACT WAS OBTAINED AND, THEREFORE, THE IMPUGNED ORDER OF ASSESSMENT IS BARRED 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 AS SESSEE. THIS BENCH OF THE TRIBUNAL IN THE CASE OF M/S. NIDAN VS ACIT, (20 18) 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 28.5.2014. IN PURSUANCE TO THE SAID SEARCH, ORDER U/S.153A R.W.S 144 OF THE ACT WAS PASSED FOR THE ASSESSMENT YEARS 2009-2010 TO 2014-1 5 AND ASSESSMENT FOR THE ASSESSMENT YEAR 2015-16 WAS MADE U/S.144 OF THE PAGE 25 ACT. THE SAID ORDERS OF ASSESSMENT WERE SERVED UPON THE ASSESSEE ON 9.1.2017 THOUGH ALL THE ORDERS WERE DATED 30.12.201 6. 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 REV ISITED THESE ORDERS AFTER 30.12.2016 UPHELD THE ORDERS AND DRAWN SUPPOR T 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 T HE ASSESSING OFFICER AND COPY OF TRACK RECORD OF SPEED POST TO S HOW THAT THE IMPUGNED ORDERS OF ASSESSMENT WERE, IN FACT, DISPAT CHED BY THE ASSESSING OFFICER ON 7.1.2017, THOUGH THE ORDERS WE RE DATED 30.12.2016. THE ASSESSEE CONTENDED THAT AS THE ORDE RS WERE DISPATCHED AFTER 30.12.2016, THEREFORE, THE ORDERS OF ASSESSMENT WERE BARRED BY LIMITATION. HE PLACED RELIANCE ON THE DEC ISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. B J N H OTELS 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 Y EAR OR YEARS] REFERRED TO IN CLAUSE (B) OF SUB-SECTION (1) OF SECTION 153A, WITHIN A PERIOD OF TWENTY-ONE MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATI ONS 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 NEGATI VE AND 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 I T HAS 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 O NLY ON ITS PAGE 26 COMMUNICATION TO THE ASSESSEE IT BECOMES ORDER OF ASSESSMENT . THUS, IN OUR CONSIDERED OPINION, TO BECOME A LEGAL VALID ORDER OF ASSESSMENT, ITS COMMUNICATION MUST BE WITHIN A PERI OD OF LIMITATION PRESCRIBED BY THE LAW THOUGH THE COMMUNICATION MAY END AFTER THE PRESCRIBED PERIOD OF LIMITATION. OUR ABOVE VIEW DER IVES SUPPORT FROM THE DECISION OF HONBLE KARNAKATA HIGH COURT IN THE CASE OF B J N HOTELS LTD (SUPRA), WHEREIN, IT HAS BEEN HELD AS UN DER: 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 TH E CONTROL OF THE AUTHORITY CONCERNED WITHIN THE PERIOD OF LIMITATION I.E. 29.4.2007. ADMITTEDLY, THE ASSESSMENT ORDERS WERE SERVED ON TH E ASSESSEE ON 30.4.2007. HENCE, 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 AVAI LABLE TO THE COURT FROM THE RECORDS, TO PROVE THAT THE ORDER IS ISSUED WITHIN THE PRESCRIBED PERIOD, ORDER PASSED BY AO IS BARRED BY LIMITATION. THE SAID 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 AGRICULTU RAL INCOME TAX OFFICER & ANOTHER (1991) 190 ITR 464 (KER) AND (II) COMMISSIO NER OF AGRICULTURAL INCOME TAX OFFICER VS. KAPPUMALAI ESTATE, 234 ITR 1 87 (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 TTJ (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 DE TER US AS IT IS A SETTLED POSITION OF LAW THAT WHEN TWO DIVERGENT VIEWS ARE E XPRESSED BY TWO DIFFERENT HONBLE HIGH COURTS, NONE OF WHICH ARE HONBLE JURI SDICTIONAL HIGH 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 OF 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 EXPIRES ON 31.12.2016. THEREFORE, THE ORDERS OF ASSESSMENT IN PURSUANCE TO THE SAID SEARCH FOR THE ASSESSMENT YEARS 2009-2010 TO 2015-2016 WERE TO BE MADE ON OR BEFORE 31.12.2016. PAGE 27 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 CONSEQUEN TLY, WE SET ASIDE THE SAME AND ALLOW THIS GROUND OF APPEAL OF THE ASSESSE E FOR ALL THE SEVEN 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 AS SESSMENT WITHIN THE PERIOD OF LIMITATION. WE, THEREFORE, HAVE NO HESITATION IN HOLDING THAT THE 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.15 3D ON OR BEFOREJ23I03.2015, THE DRAFT ORDERS IN M/S. NEELACH AL CARBO METALICKS PVT. LTD. GROUP OF CASES HAS BEEN RECEIVED IN THIS OFFICE ONLY ON ILL 26TH MARCH, 2015 IN THE AFTERNOON. THE DRAFT ORDERS HAVI NG BEING SUBMITTED ONLY 5 DAYS BEFORE FINAL ORDERS ARE GETTING BARRED BY LIMITATION, I HAVE NO OTHER OPTION BUT TO ACCORD THE APPROVAL TO THE S AME AS THE APPROVAL IS STATUTORILY REQUIRED U/S. 153D, EVEN THOUGH THER E IS NO TIME LEFT FOR UNDERSIGNED TO ENSURE THAT ALL THE POINTS RAISED IN THE APPRAISAL REPORT, THE APPELLATE PROCEEDINGS, AUDIT INSPECTION ETC. AR E DULY TAKEN INTO ACCOUNT, AND THE ENQUIRIES AND INVESTIGATIONS THAT ARE REQUIRED TO BE MADE ARE ACTUALLY MADE BEFORE FINALIZATION OF THE A SSESSMENT ORDERS. IT WOULD HAVE BEEN MUCH BETTER AND IN THE INTEREST OF REVENUE, IF YOU HAD SUBMITTED THE DRAFT ORDERS AT LEAST ONE MONTH E ARLIER SO AS TO ALLOW THE UNDERSIGNED SOMETIME TO GO THROUGH AND ANALYSE THE SAME VIS-A- VIS THE APPRAISAL REPORT AND SEIZED RECORDS. IT ALS O GOES WITHOUT SAYING THAT YOU NEVER CARED EVEN TO DISCUSS THESE CASES WI TH THE UNDERSIGNED 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 E MPTY FORMALITY. THE PROVISION HAS CERTAIN PURPOSE. IT IS APPARENT THAT THE PURPOSE BEHIND THE ENACTMENT OF THE ABOVE PROVISION IN THE STATUTE BY THE PARLIAMENT ARE TWO FOLDS. FIRSTLY, THE APPROVAL OF THE SENIOR AUTHORIT Y WILL ENSURE THAT THE ASSESSEE IS NOT PREJUDICED BY THE UNDUE OR IRRELEVA NT ADDITION OR ASSESSMENT. SECONDLY, THE APPROVAL BY SENIOR AUTHORITY WILL ALS O ENSURE THAT PROPER ENQUIRY OR INVESTIGATION ARE CARRIED OUT BY THE ASS ESSING AUTHORITY. THUS, THE ABOVE PROVISION PROVIDES FOR MENTAL APPLICATION OF A SENIOR OFFICER OF THE DEPARTMENT, WHICH IN TURN, PROVIDES SAFEGUARD TO BO TH I.E. REVENUE AS WELL AS THE ASSESSEE. THEREFORE, THIS IMPORTANT PROVISION L AID DOWN BY THE LEGISLATURE PAGE 28 CANNOT BE TREATED AS A MERE EMPTY FORMALITY. THE SA ME VIEW WAS EXPRESSED BY THE PUNE BENCHES OF THE TRIBUNAL IN THE CASE OF AKIL GULAMALI SOMJI VS ITO, IN IT APPEAL NOS.455 TO 458 (PUNE) OF 2010 ORD ER 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 L GULAMALI SOMJI, IN INCOME TAX APPEAL (L) NO.1416 OF 2012 ORDER DATED 1 5.1.2013 CONCURRED WITH THE VIEW OF THE TRIBUNAL THAT NOT FOLLOWING OF THE PROVISIONS OF SECTION 153D OF THE ACT WILL RENDER THE RELATED ORDER OF AS SESSMENT 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 REQUIREMENTS OF LAW AS THE REQUIREMENT WAS MERELY A FORMALITY. THE SAID SU PERVISORY AUTHORITY HAD A DUTY TOWARDS BOTH THE ASSESSEE AS WELL AS THE REVEN UE WHICH 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 NO T TAKEN THE APPROVAL OF JUSTIFICATION OF HIS FINDINGS. THUS, IN OUR CONSIDE RED OPINION, ALLEGED APPROVAL LETTER DATED 27.3.2015 OF THE ADDL. CIT, RANGE1, BH UBANESWAR DOES NOT CONSTITUTE THE APPROVAL WHICH IS ENVISAGED BY THE P ROVISIONS OF SECTION 153D OF THE ACT. THUS, FOLLOWING THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF AKIL GULAMALI SOMJI (SUPRA), WE HOLD TH AT THE IMPUGNED ORDER OF ASSESSMENT IS VOID AND BAD IN LAW. THEREFORE, THE I MPUGNED 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 APPRO VAL IN LIGHT OF EARLIER PROVISION SEC. 158BG VIS-A-VIS SEC. 153D (SUPRA) TO CONCLUDE THAT THE JCIT IS NOT TO ACCORD A MERE MECHANICAL APPROVAL BUT HE HAS TO APPLY HIS MIND IN ORDER TO ENSURE THAT THE ASSESSING AUTHORITY CONDUC TS APPROPRIATE ENQUIRY AND INVESTIGATION. AND ALSO THAT THERE IS NO UNDUE OR I RRELEVANT ADDITION MADE IN THE ASSESSMENT IN ISSUE. WE ALSO FIND THAT THE TRIB UNALS LEADING DECISION IN CASE OF PCIT VS. SHREELEKHA DAMANI STANDS AFFIRMED 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 H AS NOT PROCEEDED TO FINALISE THE IMPUGNED ASSESSMENT(S) IN TRUE LIGHT O F THE RELEVANT MANDATORY PROVISION SEC. 153D OF THE ACT MAINLY FOR THE REASO N NEITHER THE ASSESSING PAGE 29 OFFICER HAD SENT ANYTHING MORE THAN THE DRAFT ASSES SMENT ORDER(S) NOR THE JCIT HAD AN OCCASION TO APPLY HIS MIND TO ENSURE TH E TWIN PURPOSE OF HIS STATUTORY EXERCISE (SUPRA). WE FURTHER MAKE IT CLEA R 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, THE IMPUGNED APPROVAL DOES NOT SATISFY THE RELEVANT PARAMETERS O F LAW AS SETTLED IN PRECEDING CASE LAW. WE THEREFORE QUASH ALL THE IMPU GNED ASSESSMENT(S) FRAMED U/S. 153A R.W.S. 143(3) FOR THIS PRECISE REA SON ALONE. ALL THESE REVENUES APPEAL(S) ARE DECLINED WHEREAS THE ASSESS EES APPEAL(S) / CROSS OBJECTIONS ARE ALLOWED IN FOREGOING TERMS. ORDERED ACCORDINGLY. 7. TO SUM UP, THESE REVENUES APPEAL(S) ARE DISMISS ED AND ASSESSEES APPEALS / CROSS-OBJECTIONS ARE ALLOWED. A COPY OF T HE INSTANT COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILE(S). ORDER PRONOUNCED IN ACCORDANCE WITH RULE 34(3) OF T HE ITAT RULES BY PUTTING ON NOTICE BOARD 31/07/2019 SD/ SD/- ( ) (+, ) ( A.L.SAINI) (S.S.GODARA) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) GUWAHATI, *DKP -- 31 / 07 /201 9 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-SRI SWAPAN KR. PAUL,/SMT. NAMITA PAUL, C/O SRI SW APAN KR. PAUL, B.K. ROAD, BANAMALIPUR, TRIP URA WEST, AGARTALA-799001 2. /REVENUE-ACIT/DCIT, CIRCLE AGARTALA, 3. 7 8 = / CONCERNED CIT GUWAHATI 4. 8- / CIT (A) GUWAHATI 5. % ,,7, 7, = / DR, ITAT, GUWAHATI 6. D / GUARD FILE. BY ORDER/ , SR. PRIVATE SECRETARY (ON TOUR) 7,