ITO, Ward-3(5), Sasaram V. Shri Jitendra Sah, Kaimur

ITA 255/PAT/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7863 (ITAT-PATNA)
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-06-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 25-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUPRIYA BISWAS
• Keywords: Opportunity of being heard; Block assessment
• Section: 153A

Judgement Text

P A G E 1 | 6 IN THE INCOME TAX APPELLATE TRIBUNAL, PATNA BENCH, PATNA BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER AND LAXMI PRASAD SAHU, ACCOUNTANT MEMBER ITA NO . 255 /PAT /2018 ASSESSMENT YEAR : 20 12 - 13 ITO, WARD 3(5), SASARAM VS. SHRI JITENDRA SAH, S/O LATE MANIK SAH, AKHORI, MOHANIA, KAIMUR PAN/GIR NO. AAEFM 9110 H (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI SUPRIYA BISWAS , DR DATE OF HEARING : 20 /06/ 2019 DATE OF PRONOUNCEMENT : 20 /06/ 2019 O R D E R PER BENCH THIS I S AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) - 1, PATNA DATED 22.7.2018 FOR THE ASSESSMENT YEAR 201 2 - 13. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN APPRECIATING THE FACT THAT THE NECESSARY APPROVAL REQUIRED UNDER SECTION 153D OF THE I.T.ACT, 1961 IN THIS CASE HAS BEEN GRANTED BY THE JCIT. ITA NO.255/PAT/2018 ASSESSMENT YEAR : 2012 - 13 P A G E 2 | 6 3. WE HAVE HEARD LEARNED D.R. AND PERUSED THE MATERIALS BEFORE US. TH E ISSUE FOR OUR ADJUDICATION IS AS TO WH ETHER ABSENCE OF OBTAINING PRIOR APPROVAL U/S. 153D OF JOINT COMMISSIONER OF INCOME TAX, ASSESSMENT MADE U/S. 153 A/153(1)(B) WILL MAKE THE ASSESSMENT VOID OR VOIDABLE/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 COMMISSIONER IN RESPECT OF EACH ASSESSMENT YEA R REFERRED TO IN CLAUSE (B) OF [SUBSECTION (1) OF] SECTION 153A OR THE ASSESSMENT YEAR REFERRED TO IN CLAUSE (B) OF SUB - SECTION (1) OF SECTION 153B, EXCEPT WITH THE PRIOR APPROVAL OF THE JOINT COMMISSIONER]. 4. WE FIND THAT THE CIT(A) HAS DEALT WITH THIS ISSUE AND OBSERVED THAT THE ABOVE PROVISIONS U/S. 153 D HAVE BEEN LAID DOWN UNDER THE HEADING PRIOR APPROVAL NECESSARY FOR ASSESSMENT IN CASES OF SEARCH OR REQUISITION. THIS HEADING ITSELF SUGGESTS THAT OBTAINING PRIOR APPROVAL THE ASSESSMENT IN CASES O F SEARCH OR REQUISITION IS NECESSARY. WE FURTHER NOTE THAT THE PROVISIONS U/S. 153D START WITH A NEGATIVE WORDING NO OR D ER OF ASSESSMENT OR RE - ASSESSMENT SUPPORTED BY THE FURTHER WORDING SHALL MAKES THE INTENTION OF THE LEGISLATURE CLEAR THAT COMPLIANC E OF SEC. 153D REQUIREMENT IS MANDATORY. NO UNIVERSAL RULE CAN BE LAID DOWN AS ITA NO.255/PAT/2018 ASSESSMENT YEAR : 2012 - 13 P A G E 3 | 6 TO WHETHER MANDATORY ENACTMENT SHALL BE CONSIDERED DIRECTORY OR OBLIGATORY WITH AN IMPLIED NULLIFICATION FOR DISOBEDIENCE. THE WORDINGS AND LANGUAGE USED IN SEC. 153D OF THE AC T AND THE HEADING 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 THE VERY INTENTION OF THE LEGISLATURE TO MAKE THE COMPLIANCE U/S. 153D A MANDATORY. T HERE 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 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 NULLIFICATION 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 ALTH OUGH MANDATORY MAY BE WAIVED HIM IF NO PUBLIC INTEREST 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, IT IS NOT A CASE WHERE CONSENT OF ASSESSEE WILL WAIVE THE CONDIT ION OF OBTAINING PRIOR APPROVAL U/S. 153D OF THE JOINT COMMISSIONER OF INCOME TAX BY THE A.O FOR FRAMING ASSESSMENT U/S. 153A OF THE ACT. CONDITION OF PRIOR APPROVAL OF JCIT U/S. 153D ITA NO.255/PAT/2018 ASSESSMENT YEAR : 2012 - 13 P A G E 4 | 6 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 OTHER CONSIDERATION SUCH AS OBJECT AND SCOPE OF THE ENACTMENT AN D 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 MA NUAL OF OFFICE PROCEDURE, VOLUME II (TECHNICAL) FEBRUARY 2003 ISSUED BY DIRECTORATE OF INCOME TAX ON BEHALF OF CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA, READS AS UNDER : 9. APPROVAL FOR ASSESSMENT : AN ASSESSMENT ORDER UND ER CHAPTER XIV - B CAN BE PASSED ONLY WITH THE PREVIOUS APPROVAL OF THE RANGE JCIT/ADDL.CIT. (FOR THE PERIOD FROM 30 - 6 - 1995 TO 31 - 12 - 1996 THE APPROVING AUTHORITY WAS THE CIT.) THE ASSESSING OFFICER SHOULD SUBMIT THE DRAFT ASSESSMENT ORDER FOR SUCH APPROVAL WELL IN TIME. 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 MISCELLANEOUS RECORDS FOLDER. DUE OPPORTUNITY OF BEING HEARD SHOULD BE GIVEN TO THE ASSESSEE BY THE SUPERVISORY OFFICER GIVING APPROVAL TO THE PROPOSED BLOCK ASSESSMENT, AT LEAST ONE MONTH BEFORE THE TIME BARRING DATE. FINALLY ONCE SUCH APPROVAL IS GRANTED, IT MUST BE IN WRITING AND FILED IN THE RELEVANT FOLDER INDICATED ABOVE AFTER MAKING A DUE ENTRY IN THE ORDER - SHEET. THE ASSESSMENT ORDER CAN BE PASSED ONLY AFTER THE RECEIPT OF SUCH APPROVAL. THE FACT THAT SUCH APPROVAL HAS BEEN ITA NO.255/PAT/2018 ASSESSMENT YEAR : 2012 - 13 P A G E 5 | 6 OBTAINED SHOULD ALSO BE MENTIONED IN THE BODY OF THE ASSESSMENT ORDER ITSELF. 5. CHAPTER XIVB ALSO DEALS WITH ASSESSMENT OF SEARCH CASES. SECTIONS 153A, 153B & 153 C HAVE BEEN INTRODUCED TO CHAPTER XIV PROCEDURE FOR 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 ASSESSMENT IN CASE OF SEARCH OR REQUISITION AND WHEN THE ASSESSMENT ORDERS IN THE PRESENT CASE WERE PASSED THE PROVISIONS LAID DOWN U/S. 153D WERE VERY MUCH IN OPERATION. IN THE PRESENT CASE, ASSESSMENTS IN QUESTIO N HAVE BEEN FRAMED ON 12.3.2015. HENCE, WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) TO INTERFERE AND, ACCORDINGLY, WE UPHOLD THE SAME. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON 20 /06/2019. SD/ - SD/ - (LAXMI PRASAD SAHU ) ( CHANDRA MOHAN GARG ) ACCOUNTANT MEMBER JUDICIALMEMBER PATNA ; DATED 20 /0 6 /209 B.K.PARIDA, SPS ITA NO.255/PAT/2018 ASSESSMENT YEAR : 2012 - 13 P A G E 6 | 6 COPY OF THE ORDER FORWARDED TO : BY ORDER SR. PVT. S ECRETARY ITAT, PATNA 1. THE APPELLANT: ITO, WARD 3(5), SASARAM 2. THE RESPONDENT: SHRI JITENDRA SAH, S/O LATE MANIK SAH, AKHORI, MOHANIA, KAIMUR 3. THE CIT(A) - 1, PATNA 4. PR.CIT - 1, PATNA 5. DR, ITAT, PATNA 6. GUARD FILE. //TRUE COPY//