Bibhudutta Panda, Bhubaneswar V. Asst.CIT ,Corporate Circle-1(2), Bhubaneswar

ITA 79/CTK/2022

• Counselvise Citation: [2023] 103 COUNSELVISE.COM (IT) 4640 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 31-01-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 11-05-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Additional depreciation; Tax effect; Period of limitation; Difference of opinion; Assessment record; Block assessment; Time period of passing order; Change of opinion; Set aside
• Section: 147; 148; 263; 132; 143(3); 153A; 115JB; 143(1); 143(2); 142(2A); 158BC; 113; 153; 153C

Judgement Text

आयकर अऩीऱीय अधधकरण, कटक न्यायऩीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK श्री जाजज माथन, न्याययक सदस्य एवं श्री अरुण खोड़पऩया ऱेखा सदस्य के समक्ष । BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER आयकर अऩीऱ सं/ITA Nos.76 t o 81/C TK/2 022 (ननधाारण वषा / Asses s m ent Years :2007-2008 to 2012-2013) Bibhudutta Panda, Plot No.73 & 74, Jayadev Vihar, Bhubaneswar-751013 Vs ACIT, Corporate Circle-1(2), Bhubaneswar PAN No. :ADAPP 6398 R (अऩीऱाथी /Appellant) .. (प्रत्यथी / Respondent) ननधााररती की ओर से /Assessee by : Shri S.K.Agrawalla/S.K.Hota, Ars राजस्व की ओर से /Revenue by : Shri M.K.Gautam, CIT-DR स ु नवाई की तारीख / Date of Hearing : 01/02/2023 घोषणा की तारीख/Date of Pronouncement : 01/02/2023 आदेश / O R D E R Per Bench : These are the appeals filed by the assessee against the separate orders of the ld. CIT(A)-2, Bhubaneswar, all dated 30.03.2022 for the assessment years 2007-2008 to 2012-2013. 2. At the time of hearing, ld. AR argued on the two following legal issues :- i) that the approval granted u/s.153D of the Act by the Addl. Commissioner is not in accordance with law; and ii) that the assessment order passed by the AO u/s.153A(b) of the Act is barred by limitation. 3. It was submitted by the ld. AR that the other grounds have also been raised, which are in respect of the merits as also in respect of non- availability of incriminating materials for some of the years. 4. It was the submission of the ld. AR that the search in the case of the assessee was conducted on 13.12.2012 in the office premises and ITA Nos.76-81/CTK/2022 2 factory premises of the assessee and the residential premises of the directors. Notice u/s.153A of the Act came to be issued and the assessment came to be completed u/s.153A of the Act for all the impugned assessment years on 31.03.2015. It was the submission that the assessment orders have been served by hand on 08.04.2015. It was the submission that these assessment orders were not passed on 31.03.2015 but those orders were passed subsequently and ante dated. It was further submitted that in respect of the issue of approval granted u/s.153D of the Act, the satisfaction of the Addl. Commissioner had been obtained as early as on 27.03.2015. Subsequent to the approval u/s.153D of the Act, notice u/s.142(1) of the Act had been issued on 30.03.2015 and the assessee had responded to the same only on the evening of 31.03.2015. It was the submission that the assessee having responded only in the evening of 31.03.2015, it was impossible for the AO to have passed assessment orders on 31.03.2015 itself. On this ground, the ld. AR of the assessee submitted that the assessment orders were passed subsequent to 31.03.2015 and have been ante dated. It was further submitted that as the satisfaction of the Additional Commissioner had already been taken as early as on 27.03.2015, the AO could not have issued notice u/s.142(1) of the Act on 30.03.2015. It was the submission that the income quantified in the order which has been sent for approval from the Additional Commissioner varied from the income as finally determined in the impugned assessment order alleged to have been passed on 31.03.2015. It was the submission that there was a pre- ITA Nos.76-81/CTK/2022 3 condition in respect of the search cases that the approval from the Additional Commissioner was to be taken before the order could be passed u/s.153A of the Act. It was the submission that, thus, as the final assessment orders alleged to have been passed on 31.03.2015 did not have the requisite approval from the Additional Commissioner u/s.153D of the Act, the same were liable to be annulled. It was further submitted that as the assessment orders having not been passed on the alleged date of 31.03.2015 but had been passed subsequently and ante dated the same were liable to be quashed as being barred by limitation. The ld. AR in respect of issue of limitation placed reliance on the decision of the coordinate bench of the Tribunal in the case of Sujata Panda reported in (2022) 220 TTJ 899, wherein the Tribunal has held as follows :- “7. Learned CIT-Departmental Representative has placed before us the original of the demand and collection register. It was the submission that the demand and collection register clearly register the date of the assessment order as 30th Dec., 2016. It was the submission that the assessment order had been passed within the prescribed time-limit and approval of Jt. CIT has also been taken on 30th Dec., 2016. It was the submission that the assessment orders are liable to be upheld as it has been passed within the period of limitation. It was the submission that the delay in dispatch of the assessment order should not be a ground for treating the assessment orders as being barred by limitation. 7.1 We have considered the rival submissions. Admittedly, a perusal of the assessment orders in the present case clearly shows that DNCR, which is to be clearly handwritten on the assessment orders is absent in the present case. It is also an admitted fact that DNCR original which has been produced by learned CIT- Departmental Representative does contain the entry in respect of the date of assessment order. DNCR also does mention the date of the assessment order as 30th Dec., 2016. However, DNCR does not contain the date of the entry made in respect of the assessment order. It only mentions the date of the assessment order as 30th Dec., 2016. Therefore, we are of the view that DNCR register does not help the case of the Revenue. ITA Nos.76-81/CTK/2022 4 8. Learned CIT-Departmental Representative has placed before us the file of the Jt. CIT, wherein he has granted the approval under s. 153D in respect of the assessment order on 30th Dec., 2016. Again, this does not help the Revenue insofar as it is only in respect of the approval under s. 153D from the Jt. CIT. It does not prove that the order has been passed on 30th Dec., 2016. A perusal of the order of the Co-ordinate Bench of this Tribunal in the case of Nidan (supra) clearly shows that this issue has been considered by the Tribunal, wherein it is held that the assessment order therein is barred by limitation. The order of the Co-ordinate Bench of this Tribunal in the case of Nidan (supra) has also been upheld by the Hon'ble jurisdictional High Court vide order dt. 13th July, 2022 (supra). The assessee herein is a partner in Nidan (supra). Thus, the facts in the case of Nidan (supra) most specifically in respect of period of limitation would apply pari passu in respect of the assessee also. In these circumstances, respectfully following the principles laid down by the Hon'ble jurisdictional High Court in the case of Nidan referred to supra, we are of the view that the assessment order passed in assessee's case purported to have been passed on 30th Dec., 2016 is barred by limitation and, therefore, quashed.” 5. In respect of the issue of approval u/s.153D of the Act, ld. AR has placed reliance on the decision of the Hon’ble Gujarat High Court in the case of Sunrise Finlease (P) Ltd., reported in (2018) 305 CTR(Guj) 421, wherein the hon’ble Gujarat High Court has categorically held that, “provision of Section 153D of the Act mandates that no order of assessment or reassessment shall be passed by an AO below the rank of Jt.CIT, except with the prior approval of the Jt.CIT”. 6. In reply, ld. CIT-DR placed before us the ordersheet of the assessment folder wherein in the last entry is of 31.03.2015, it is mentioned that the order u/s.153A(b) of the Act passed. Here it must be mentioned that there is no entry in respect of dispatch. It was further submitted by the ld. CIT-DR that in respect of the provision of Section 153D of the Act, the Addl. CIT had granted the approval on 27.03.2015 and in the approval the Jt.CIT had directed the AO to do further ITA Nos.76-81/CTK/2022 5 verification and to proceed with the assessment order without awaiting any further approval from him. The relevant portion of his approval reads as follows :- “The draft assessment orders in all the above noted assessees are approved accordingly as per statutory requirement u/s. 153D only in the light of the suggestions given above. Therefore, only after making verifications" necessary enqurries and investigations in the light of the above suggestions made, the final assessment orders should be passed expeditiously as per the draft orders approved. The tax and interest calculations to 'be incorporated in the final orders should be checked up once again to ensure the correctness of the same. The final orders along with Demand Notice should be served on the assessee concerned expeditiously and the proof of service be placed in the assessment folders. Copies of the final assessment orders may be sent to this office for record.” 7. It was further submitted that admittedly if the bench is of the view that there is an error insofar as the assessment order dated 31.03.2015 was passed without proper approval granted u/s.153D of the Act, the same being a technical breach, therefore, the issues must be restored to the file of the AO for obtaining the proper approval and then proceed thereon. He placed reliance on the decision of the Hon’ble Jurisdictional High Court in the case of Shiv Kumar Agarwal, reported in 186 ITR 734 (Orissa), which has been followed by the coordinate bench of this Tribunal in the case of Gobardhan Matia in IT(SS)A Nos. 62-66/CTK/2013, order dated 22.09.2022, wherein the Tribunal in para 12 has held as follows :- “12. Let us now for a moment assume that there has been violation of Section 153D of the Act. The consequence of the same would not be annulment of the assessment order. The provision of section 153D is an administrative procedure in the course of assessment. The breach of such administrative procedure at best could lead to the assessment proceedings being redone from the point where the breach took place. This view is supported by the decision of the Hon‟ble Jurisdictional High Court in the case of Shiv Kumar Agarwal, 186 ITR 734(Ori). In these circumstances, we are ITA Nos.76-81/CTK/2022 6 of the views that the decision of the Co-ordinate Bench of this Tribunal in the case of Serajuddin & Co. (supra) does not apply to the facts of the assessee‟s case.” 8. It was further submitted that in regard to the issue of time barring of the assessment order u/s.153A of the Act, admittedly the ld. CIT(A) in para 11.2 of his order at page 31 has categorically mentioned that the assessment order was passed on 31.03.2015 and uploaded in ITBA System on 31.03.2015. It was fairly agreed by the ld. CIT-DR that he had issued a query to the AO wherein evidence to the said effect was called for, the said letter is as follows :- ITA Nos.76-81/CTK/2022 7 ITA Nos.76-81/CTK/2022 8 9. Ld. CIT-DR further submitted that the reply received from the AO is on 13.01.2023 wherein the question has not been answered. The reply is as follows :- ITA Nos.76-81/CTK/2022 9 10. It was submitted that as the ld. CIT(A) has held that the order has been uploaded in ITBA System on 31.03.2015, the same should be considered as correct. It was thus the submission of the ld. CIT-DR that the order of the ld. CIT(A) is liable to be upheld. 11. The ld. CIT-DR has also filed written submission as follows :- 1. In the first ground of appeal, it has been argued that the Addl. CIT, Range-1, Bhubaneswar has granted approval u/s. 153D before completion of assessment order and therefore the assessment orders u/s.153A are liable to be quashed. In this regard, please refer to page-29 of paper book (Volume-1) filed by the ld. AR of the assessee. The Addl. CIT, Range-1 (Supervisory Office) has clearly mentioned therein that draft assessment orders in the case of M/s. Neelachal Carbo Metallics Pvt. Ltd. have been received late i.e. 25.03.2015 but there is no mention about other assesses i.e. Shri Bibhudutta Panda. In the last paragraph on page-29, it has been categorically mentioned by the Addl. CIT, Range-1 that despite of late submissions of draft assessment orders, he has examined the material available on record and his observations in respect of present appellant are contained in pages-36 to 39 of paper book (Volume-1) filed by the ld. AR of the assessee. This clearly shows application of mind by the Supervisory officer to the profit & loss accounts, balance sheets, other records, material available on records, appraisal report, etc. Finally in the last paragraph on last page of his approval letter dated 27.03.2015 (page-41 of paper book (Volume-1) filed by the ld. AR of the assessee, the Addl. CIT, Range-1, Bhubaneswar has directed that after making requisite inquiries and verifications, the final assessment orders should be passed expeditiously as per his approval. In the second last paragraph of letter dated 27.03.2015 on last page (page-41 of the paper book), the Supervisory Officer has categorically mentioned that "the draft orders are approved as per statutory requirement u/s. 153D" subject to certain enquiries/verification/investigations to be carried out by the A.O. He has thus directed the A.O. not to seek further approval and only asked that copy of final assessment orders should be sent to his office for record. In view of above facts, the A.O. was not required to seek further approval from his Addl. CIT, Range-1, Bhubaneswar. a) The facts of the present case do show that the Supervisory Officer (Addl. CIT, Range-1, Bhubaneswar) has duly applied his mind; he has gone through the records; he has analyzed the statements made during the search as well as the seized ITA Nos.76-81/CTK/2022 10 documents; he has also analyzed the audited balance sheets/profit & loss account for the relevant years. b) It is clear from the plain language of section 153D that the AO is only required to take prior approval of Supervisory officer (Addl./Jt. CIT) before passing of assessment order U/s l53Ar.w.s. 143(3)/144. This requirement has been fulfilled in the present case. It is a cardinal principle that the words of a Statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning unless such construction leads to some absurdity or unless there is something in the context or in the object of the Statute to the contrary. The golden rule is that the words of a Statute must prima facie be given their ordinary meaning. When the words of a Statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning irrespective of the consequences. It is said that the words themselves best declare the intention of the law giver (Hon'ble Supreme Court in the case of Union of India v. Tata Chemicals Ltd. (363 ITR 658) (para-22). c) The approval granted under section 153D of the Act by the Supervisory officer (Additional/Jt. CIT) is merely an Administrative order and no civil or penalty consequences flow from such an order against the assessee. The approval of Supervisory officer is totally distinct from the assessment order and not required to be communicated. Hence it is not open for challenge before the Court of Law. Once the reasons for Administrative Approval are not required to be communicated to the assessee then it is not permissible in law to permit the assessee to agitate the reasons for passing the Administrative Approval. The Approval granted by the Supervisory officer (Additional/Jt. CIT) is not justiciable in law. It is submitted that the subject matter of the proceeding before the Honourable Tribunal is the assessment order for which the existence of approval is necessary (which has been duly obtained in the present case) and therefore the approval cannot form basis of challenging the assessment order. d) The power to determine the income vests in the Assessing Officer exercising the quasi-judicial function and it is in violation of principle of quasi-judicial function that can render the assessment order invalid. The act of Administrative Approval by Supervisory officer does not take away the quasi-judicial powers which still vests in AO and therefore Administrative Act cannot invalidate the assessment order. Charging sections fix the liability to tax and any violation of machinery section will not render the assessment order void. The Administrative order and judicial orders are separate. The subject matter of the challenge in the present appeal is assessment order for which the approval has been granted therefore the approval itself cannot be the subject matter of adjudication. ITA Nos.76-81/CTK/2022 11 e) It is further submitted that the recording of sanction or approval is not required to be made in a particular manner. What could be challenged before the Tribunal is want of sanction and for that the reliance is placed on the decision of the Mumbai Tribunal in the matter of Pratibha Pipes & Structural Ltd. vs. DCIT in ITA No.3874/Mum/2015 for the proposition that the Approval under section 153D of the Act is an Administrative procedure which requires to be complied with by the officers who arc discharging the assessment functions (para-16 to 18 on pages 16 to 20 of the appellate order). f) In the case of Gobardhan Matia in IT(SS) A No.62 to 66/CTK/2013 for AY 2003-04 to AY 2007-08 has made considered arguments and rendered following findings in paras-5 to 16 as under: "5. The order sheets have been placed by the assessee in the paper book only for the purpose of supporting its claim that the approval from the Addl. CIT, Range-1 has not been taken by the Assessing Officer before passing the relevant assessment orders. The assessment orders have been passed by the Asst. Commissioner of Income Tax, Circle - 1(2), Bhubaneswar. The main thrust of the arguments of the assessee is given at single technical ground that no approval u/s.153D of the Act has been obtained before passing the assessment orders. It was the submission that in the last page of the assessment order, it is mentioned that the order is being passed with prior approval of the Addl.CIT, Range-1, Bhubaneswar. It was the submission that the approval u/s.153D was not attached nor was part of the assessment order provided. 6. It was further submitted that on perusal of the order sheet as has been filed in the paper book does not show the approval having been obtained u/s.153D of the Act. It was the submission that the assessee had filed an application for the certified copies of the order sheets and the approval u/s.153D but the assessee has received only certified copies of the order sheets but has not received the approval u/s.153D of the Act. When it was questioned as to where is the application filed, wherein, the certified copies of the order sheet and the approval u/s.153D has been requested, it was mentioned that the said application was not available at this point of time. 7. Ld AR further drew our attention to the page 120 of PB, which is the copy of the order of the Co-ordinate Bench of Delhi ITAT in the case of Shri Ajay Sharma vs DCIT in ITA No.3554/Del/2015 order dated 14.2.2020 to support his arguments that when there is no approval u/s.153D of the Act, the assessment is liable to be annulled. It was further submitted that the approval if at all is there, the same should ITA Nos.76-81/CTK/2022 12 not be mechanical approval. Ld AR further placed reliance on the decision of Co-ordinate Bench of this Tribunal in the case of Seerajudin & Co. in IT(SS) A Nos.25/CTK/2013 dated 21.1.2022, wherein, there was an approval u/s.153D of the Act but on the ground that the approval u/s.153D was given in a mechanical manner, the assessment had been set aside. It was the submission that Seerajudin & Co. is the main case in these appeals. It was the submission that in the said decision of the Co-ordinate Bench of this Tribunal, it had been categorically held that the approving authority has not gone into the relevant records and draft assessment order prior to granting the approval to the Assessing officer for passing the assessment orders. It was the submission that consequently, in the absence of approval u/s.153D being shown by the revenue, the assessment is liable to be annulled. 8. In reply, ld CIT DR drew our attention to the order of assessment of last page, wherein, it has been mentioned that the Addl. CIT, Range-1 has given the approval. It was the submission that in Serajuddin & Co, in the assessment order, this was not mentioned and that is why the approval u/s.153D of the Act was called out. It was the further submission that a perusal of the grounds raised by the assessee showed that the challenge was in respect of the issue that the copy of the approval u/s.153D was not enclosed with the order. It was further submitted that the approval u/s.153D has not been given in a routine or mechanical manner. It was further submitted that in Form No.36, in the grounds raised, the assessee has not challenged anywhere that the approval u/.s.153D has not been taken. It was the further submission that the fact that the assessee has not been able to place the copy of the application filed requesting for the certified copy of the approval u/s.153D shows that this was not an issue that was considered important by the assessee and the said ground is an afterthought raised after 9 years. Ld CIT DR drew our attention to the office manual in para -9, which has been extracted earlier, to submit that the said office manual is for the internal guidance of the Assessing Officer and it is not binding on appellate authority. It was the further submission that the word “mechanical manner” is missing in the said paragraph. At this point, it was put to ld CIT DR that para 9 of the office manual provided that “ due opportunity of being heard should be given to the assessee by the supervisory office giving approval to the proposed block assessment, at least one month before the time barring date”. To this, ld CIT DR placed reliance on the decision of Hon‟ble Karnataka High Court in the case of Gopal S. Pandit vs. CIT (2018) 96 taxmann.com 233 (Karnataka) to submit that the Hon‟ble High Court has categorically held that the approval under section 153D do not require any opportunity of hearing to be ITA Nos.76-81/CTK/2022 13 given to the assessee by the authority who has to approve draft assessment order passed by the Assessing Authority. It was the submission that the said provisions of section 153D issued is in parimateria with the provisions of section 153BG in respect of approval to be granted by the ld CIT and the said office manual para 9 related to the provisions of section 158BG. He further relied on the decision of Hon‟ble Madras High Court in the case of Sakthivel Bankers vs. ACIT, 255 ITR 144 (Mad), wherein also, it has been held that notice had not been given to the assessee prior to said approval. He further placed reliance on the decision of Hon‟ble Karnataka High Court in the case of Rishabchand Bhansali vs. Deputy Commissioner of Income Tax, 267 ITR 577 (Karnataka), wherein, it has been held that the approval of Joint Commissioner of Income Tax u/s.153D is an administrative action and there is no need for the Jt. CIT to give a hearing to the assessee before granting approval. He also placed reliance on the decision of the Co-ordinate Benches of the ITAT Mumbai in the case of Rafique Abdul Hamid Kokani Vs DCIT 113 Taxman 37, wherein also, similar finding has been given. It was the submission that in regard to the issue of approval, the same being an administrative action, no opportunity was required to be given to the assessee much less copy of the approval to be granted to the assessee along with the assessment order. 9. We have considered the rival submissions. A perusal of section 153D provides that before passing the assessment order by the Assessing officer below the rank of Jt. CIT, prior approval is to be taken from the Jt. CIT. The proviso thereto provides for the prior approval from the Pr. CIT or Chief Commissioner of Income tax under section 144BA (12). Ld AR request that the Tribunal should call for the assessment records and verify the approval u/s.153D does not hold water insofar as the Tribunal is an appellate authority and it is to decide the issue before it on the basis of the facts as are available before it. True, the Tribunal is the highest fact finding body, if there is any fact which has been stated most specifically where a particular fact, which cannot be borne out and is contrary to the record, is alleged, it should be stated clearly and supported by duly sworn affidavit. Here, the assessee says that there is no approval u/s.153D. The assessment order specifically mentions that the approval has been obtained. There is no affidavit filed under Rule 10 of the ITAT Rules. Further, there is nothing on record to show that such approval has been obtained in a mechanical manner. 10. A perusal of the provisions of section 153D clearly shows that this is an administrative act. Whether an approval has been granted or not can very well be looked into by an appellate authority. However, the ITA Nos.76-81/CTK/2022 14 quality of the satisfaction recorded by the approving authority is not in the realm of judicial scrutiny by an appellate authority. One must keep in mind that similar satisfaction is called for when issuing notice u/s.148 of the Act. There the provision provided that the satisfaction is to be recorded and this satisfaction can be challenged in appeal in respect of its quality. This is not a situation in respect of approval u/s.153D of the Act. A perusal of the assessment order further clearly shows that substantial and innumerable opportunities had been granted to the assessee in the course of assessment. The assessee has chosen not to cooperate in the assessment proceeding, and left with no other alternative, the assessment has been completed by the AO to the best of his judgement. Therefore, to say that an approval can be challenged or that the approving authority has not applied his mind would be a travesty jurisdiction insofar as there has been no correspondence much less response from the assessee in respect of assessment proceedings. 11. The decision relied upon by ld AR in the case of Serajuddin & Co. (supra) has gone into the quality of the satisfaction recorded by the approving authority. We are not in agreement with the said findings and in view of the decision of Hon’ble Madras High Court in the case of CIT Vs. Hi Tech Arai Ltd, 321 ITR 477 (Mad), we take a different stand. As mentioned earlier para 9 of the official manual procedure is a guideline for the assessing authority. It is also admitted fact that said guideline is in relation to provisions of section 158BG and does not have any impact in relation to provision of section 153D of the Act, though, admittedly, both 153D and 158BG does fall under Chapter XIV B of the Act. 12. Let us now for a moment assume that there has been violation of Section 153D of the Act. The consequence of the same would not be annulment of the assessment order. The provision of section 153D is an administrative procedure in the course of assessment. The breach of such administrative procedure at best could lead to the assessment proceedings being redone from the point where the breach took place. This view is supported by the decision of the Hon‟ble Jurisdictional High Court in the case of Shiv Kumar Agarwal, 186 ITR 734 (Ori). In these circumstances, we are of the view that the decision of the Co-ordinate Bench of this Tribunal in the case of Serrajudin & Co (supra) does not apply to the facts of the assessee‟s case. 13. It is an admitted fact that the revenue has not placed the approval under section 153D of the Act before the Tribunal as mentioned earlier. The Tribunal has no business to call for the approval unless a specific allegation has been raised ITA Nos.76-81/CTK/2022 15 through affidavit under Rule 10 of the ITAT Rules. Obviously, when the affidavit is being filed, the consequence of the affidavit is being shown to be false are enormous. We are live to the decision of the Hon‟ble Supreme Court in the case of Mandir Sita Ramji reported in AIR 1974 SC 1868, 1975 SCR (1) 597, wherein, it has been categorically held that “when a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser.” The legislature in the provisions of section 153D talks of only getting prior approval from the Jt. CIT, it does not give authority to an appellate authority to question the quality of the approval. As mentioned earlier, substantial number of opportunity has been granted to the assessee in the course of assessment proceedings, which the assessee has chosen to ignore. The role of the approving authority is only for exercise of restraint and if he declines to grant approval in respect of any addition, it cannot be added. The rule of natural justice has to be observed by the AO while making the addition and in the present case, the AO has granted substantial opportunity, which cannot be faulted with. 14. We are live to the decision of the Hon‟ble Supreme Court in the case of Ashokji Chanduji Thakor Vs. Pr.CIT [2021] 130 taxmann.com 131 (SC), wherein, it has been categorically held that when the assessee has been granted substantial opportunity and the assessee has not co- operated in the assessment, the issues cannot be restored to the file of the AO unless reasoned and speaking order has been passed by the Tribunal. 15. In the present case, it is an admitted fact that substantial opportunities have been granted to the assessee. It is also an accepted and admitted fact that the assessee has chosen not to cooperate in the assessment proceedings. However, the assessee has challenged that no approval has been taken before passing the assessment order. The revenue has not place the approval u/s.153D of the Act. As mentioned earlier, this is only a technical breach which has resulted in an irregularity taking place in the course of assessment. Under ordinary circumstances, respectfully following the principles laid down by the Hon’ble Jurisdictional High Court in the case of Shiv Kumar Agarwal (supra), the assessment orders are liable to be set aside and restored to the file of the AO to the point of the draft assessment order to proceed from such point only and obtain necessary approval from the appropriate authority and proceed thereafter. However, as we are inclined to restore the issue to the file of the AO, we feel that in the interest of natural justice, the assessee should also be granted another opportunity to substantiate its ITA Nos.76-81/CTK/2022 16 case before the AO, insofar as no evidences have been filed by it before the AO. In these circumstances, in the interest of natural justice, the issues in these appeals are restored to the file of the AO for re-adjudication after granting the assessee adequate opportunity of being heard. The assessee shall be at liberty to raise all grounds as desired by it before the AO in the course of set aside assessment proceedings. If the assessee adopts the course of non- cooperation before the AO, even in the set aside proceedings, the AO shall be at liberty to draw adverse inference. No other grounds have been argued before us. 16. In the result, appeals of the assessee and that of the revenue for all the assessment years are partly allowed for statistical purposes". Considering the above judicial precedent, this ground of appeal of the assessee is required to be dismissed. 2. In the second ground of appeal, it has been argued that no incriminating documents were found and seized in course of search in the present case and therefore the A.O. could not have disturbed the completed assessments. However this argument is valid only for AY 2007-08 and AY 2008-09. It is submitted that Section 153A (which is similarly worded to section 158BC of the Act), provides that where the A.O. is satisfied that any money, bullion, jewellery or other valuable article or thing or any books of account or documents seized or requisitioned, he shall proceed against such person and issue such person a notice and assess or reassess undisclosed income of such other person. However, there is a distinction between the two provisions inasmuch as under section 158BC notice can be issued only where the money, bullion, jewellery or other valuable article or thing or any books of account or documents seized or requisitioned belong to such person, whereas under Section 158BC if the Assessing Officer is satisfied that any undisclosed income belongs to any person, in respect of whom search was made under section 132 or whose books of account or other documents or assets were requisitioned under section 132A, he shall proceed to determine undisclosed income of such other person. Hence the Legislature has purposely used the words 'total income' instead of the term 'undisclosed income'. It must be appreciated here that word "incriminating" has not been used in the Fourth Proviso inserted by Finance Act, 2017 w.e.f. 01.04.2017 to Section 153A of the Act. Hence same can't be imported into it. The proviso to section 153A states that the Assessing Officer shall assess or reassess the six assessment years preceding the previous year in which the search is initiated or requisition is made. The use of the word 'shall' connotes that the ITA Nos.76-81/CTK/2022 17 assessment/reassessment is mandatory and will have to be made irrespective of the fact whether any material/document, etc., is found in the course of search action; the section nowhere requires that notice can be issued only when there is material found or seized during the course of search. i.) The Hon'ble Kerala High Court in the case of E. N. Gopakumar vs. CIT (75 taxmann.com 215) held that assessment proceedings generated by issuance of a notice under section 153A(1)(a) can be concluded against interest of assessee including making additions even without any incriminating material being available against assessee in search under section 132 on basis of which notice was issued under section 153A(1)(a) of the Act. The observations of the Hon'ble Kerala High Court in para-7, 8 and 9 are reproduced as under: "7. In so far as the issue as to whether it is necessary that incriminating materials should be unearthed in a search under Section 132 of the Act to sustain a notice issued under Section 153A(1)(a) is concerned, the issue stands covered in favour of the Department as per the judgment of this Court in St. Francis Clay Decor Tiles's case (supra) and Promy Kuriakose's case (supra) though the second among them relates to a third person to the search as well; which cases would fall under Section 153C of the Act. We, therefore, answer the said question stating that for the issuance of a notice under Section 153A(1)(a), it is not necessary that the search on which it was founded should have necessarily yielded any incriminating material against the assessee or the person to whom such notice is issued. 8. Section 153A is a provision which deals with assessment in case of search or requisition. The activation of a search is not something which is regulated by any limit as to period of time. Even if returns are filed and regular assessments are concluded, search on premises could always be made, if the authority concerned is satisfied that action ought to proceed in that line. Once that is done, Section 153A(1)(a) authorises the issuance of notice calling for filing of returns. This has been noted even under the point decided above. Once a return is filed in answer to such a notice, the Explanation to Section 153A provides, among other things, that all provisions of the Income Tax Act will apply to the assessment made under Section 153A of the Act. This is the manner in which the provisions in Sections 153A, 153B and 153C of the Act would regulate. Once that is done, it is well within the jurisdiction of the assessing authority to proceed with any lawful modes of assessment as prescribed in the Act. The Statute nowhere makes it conditional that the department has to unearth some incriminating material to conclude some method against the assessee in events ITA Nos.76-81/CTK/2022 18 where the assessment is triggered by a notice under Section 153A(1)(a) of the Act. This means that even when such notice is triggered following a search, the assessment proceedings can be concluded in any manner known to law, including under Section 143(3) or even Section 144 of the Act, if need be. Therefore, the assessment proceedings generated by the issuance of a notice under Section 153A (1)(a) of the Act can be concluded against the interest of the assessee including making additions even without any incriminating material being available against the assessee in the search under Section 132 of the Act on the basis of which the notice was issued under Section 153A(1)(a) of the Act. We answer this issue accordingly. 9. In the case in hand, the assessing authority had, upon receipt of the returns in answer to the notice under Section 153A(1)(a) of the Act, given an opportunity to the assessee to interact with the officer and thereafter he was required to place a cash flow statement. All that followed thereafter is the assessing authority carrying out an exercise of acting on the cash flow statement and concluding the assessment by determining the amounts on a meaningful and appropriate application of the cash flow statement by rearranging the entries thereof. That activity carried out by the assessing authority, though to a larger extent, was found against by the CIT (Appeals), has found disapproval at the hands of the Tribunal which is the last fact finding authority. We see that the decision of the Appellate Tribunal cannot be critisised as unreasonable, perverse or unavailable on the face of record. Resultantly, these appeals fail". It may please be noted that the Hon'ble Kerala High Court has duly noted the contrary decision of Hon'ble Delhi High Court in the case of Kabul Chawla (380 ITR 573), and Kurele Paper Mills (P.) Ltd. (380 ITR 571) and Hon'ble Mumbai High Court in the case of Continental Warehousing Corporation (Nhava Sheva) Ltd. (374 ITR 645) while holding the decision in favour of Revenue. ii.) The Hon'ble Allahabad High Court in the case of CIT vs. Raj Kumar Arora (52 taxmann.com 172) held that the Assessing Officer has power to reassess returns of assessee not only for undisclosed income found during search operation but also with regard to material available at time of original assessment. The observations of Hon'ble High Court in para-11 are reproduced as under: "10. Under the block assessment proceeding under Chapter XIV-B only the undisclosed income found during the search and seizure operation were required to be assessed and the regular assessment proceedings were preserved. The introduction of Section 153A of the Act provides a departure ITA Nos.76-81/CTK/2022 19 from this proceeding. Under Section 153A of the Act, the Assessing Officer has been given the power to assess or reassess the total income of the assessment years in question in separate assessment orders. Consequently, there would be only one assessment order in respect of six assessment years in which total disclosed or undisclosed income would be brought to tax. Consequently, even though an assessment order has been passed under Section 143(1) (a) or under Section 143(3) of the Act, the Assessing Officer would be required to reopen these proceedings and reassess the total income taking notice of undisclosed income even found during the search and seizure operation. The fetter imposed upon the Assessing Officer under Sections 147 and 148 of the Act have been removed by the non obstante clause under Section 153A of the Act. Consequently, we are of the opinion that in cases where the assessment or reassessment proceedings have already been completed and assessment orders have been passed, which were subsisting when the search was made, the Assessing Officer would be competent to reopen the assessment proceeding already made and determine the total income of the assessee. The Assessing Officer, while exercising the power under Section 153A of the Act, would make assessment and compute the total income of the assessee including the undisclosed income, notwithstanding the assessee had filed the return before the date of search which stood processed under Section 143(1)(a) of the Act. 11. In the light of the aforesaid, the reasons given by the Tribunal that no material was found during the search cannot be sustained, since we have held that the Assessing Officer has the power to reassess the returns of the assessee not only for the undisclosed income, which was found during the search operation but also with regard to the material that was available at the time of the original assessment. We find that the Tribunal dismissed the appeal while relying upon the decision of a Coordinate Bench of the Tribunal in the case of Anil Kumar Bhatia (supra). We find that the said decision of the Coordinate Bench of the Tribunal was set aside by the Delhi High Court in CIT v. Anil Kumar Bhatia [2012] 24 taxmann.com 98/211 Taxman 453. We find that the Tribunal only dismissed the appeal on this legal issue and had not considered the matter on merits". iii.) The Hon'ble Kerala High Court in the case of CIT vs. St. Francis Clay Décor Tiles (70 taxmann.com 234) held that neither under section 132 or under section 153A, phraseology 'incriminating' is used by Parliament, therefore, any material unearthed during search operations or any statement made during course of search by assessee is a valuable piece of ITA Nos.76-81/CTK/2022 20 evidence in order to invoke section 153A. The observations of the Hon'ble High Court in para-20 & 21 are reproduced as under: "20. On a plain reading of Section 153A, it is clear that once search is initiated under Section 132 or a requisition is made under Section 132A after the 31st day of May 2003, the Assessing Officer is empowered to issue notice to such person requiring him to furnish return of income in respect of each assessment year following within six assessment years referred to in clause (b). It further treats the returns so filed as if such return were a return required to be furnished under Section 139. So that on a reading of Section 153A(1) it is categoric and clear that once a notice is issued and the Assessing Officer has required the assessee to furnish return for a period of six assessment years as contemplated under clause (b) then the assessee has to furnish all details with respect to each assessment year since the same is treated as a return filed under section 139. It is true that as per the first proviso, the Assessing Officer is bound to assess or reassess the total income with respect to each assessment year following the six assessment years specified in sub-clauses (a) and (b) of Section 153A. However, even if no documents are unearthed or any statement made by the assessee during the course of search under section 132 and no materials are received for the afore-specified period of six years, the assessee is bound to file a return, is the scheme of the provision. Even though the second proviso to Section 153A speaks of abatement of assessment or reassessment pending on the date of the initiation of search within the period of six assessment years specified under the provision that will also not absolve the assessee from his liability to submit returns as provided under Section 153A(1)(a). This being the scheme of the provisions of the Act, the Appellate Tribunal ought to have considered the issue with specific reference to the facts involved in the case and as provided under Section 153A. 21. However, we find that the Tribunal without appreciating the facts and circumstances has proceeded purely on the basis that the cases at hand were covered under the Special Bench decision in All Cargo Logistics Ltd. (supra). In our view the course adopted by the Tribunal was not the proper one to decide the question with regard to the sustainability of the order passed by the First Appellate Authority. Therefore, we are of the considered opinion that the Tribunal has not adopted the right method to decide the issue with regard to the question framed in these appeals and therefore, it is only necessary to remand the matter to the Tribunal for fresh consideration". iv.) The Hon'ble Delhi High Court in the case of Filatex India Ltd. vs. CIT (49 taxmann.com 465) held that during assessment under section 153A, additions need not be restricted or limited to incriminating material, found during course of search. The ITA Nos.76-81/CTK/2022 21 observations of the Hon'ble High Court in para-2 are reproduced as under: "2. On the first question, we note that the Assessing Officer, in the proceedings under section 153A of the Act, had made several additions, relying upon the incriminating material found in the course of search, which was conducted on 18th January, 2006 and subsequent dates. A perusal of the impugned order by the Tribunal would disclose that incriminating material including statement of Sanjay Agrawal, GM (Marketing) have resulted in additions, which have been upheld. It is not the case of the appellant-assessee that initiation of proceedings under Section 153A was bad or unwarranted in law as no incriminating material was found during the search. The contention raised by the appellant- assessee is that the addition, which is the subject matter of questions No. (ii) and (iii), was/is not justified in the assessment order under section 153A, as no incriminating material was found concerning the addition under Section 115JB of the Act. The said argument has no substance and has to be rejected. Under Section 153A of the Act, the additions need not be restricted or limited to the incriminating material, which was found during the course of search. There cannot be multiple assessments, once Section 153A of the Act is applicable. Section 153A(1) postulates one assessment, computing the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which search was conducted or requisition was made. Total income is assessed or reassessed in the order under section 153A of the Act and the Section applies notwithstanding sections 139, 147, 148, 149, 151 and 153 of the Act". v.) The Hon'ble Allahabad High Court in the case of Savesh Kumar Agarwal vs. Union of India (35 taxmann.com 85) held in para-22 & 23 that the question which now called for consideration was whether on receipt of satisfaction note, even if the assessing authority receiving satisfaction note has already examined account books, and had not found anything adverse against the assessee and further seized goods had already been released in favour of the assessee, he was required to issue notice under section 153C of the Act to file returns for six years. In this case, the Department had taken a stand that even if the books of account were examined by the Assessing Officer of the petitioner and the bullion having found validly entered in the stock books was released under section 132B, still the Assessing Officer could proceed under section 153A and assess the petitioner to find out the source of income. The observations of the Hon'ble High Court in para-24 & 25 are reproduced as under: "24. Where there is power to act in a particular manner, unless it is shown that power has been exercised without jurisdiction and lacks bona fide, the statutory notice given in exercise of such powers, may not be set aside by the court under article 226 of the Constitution of India. The argument ITA Nos.76-81/CTK/2022 22 that the second assessment for the same year and of the previous years will amount to duplication and will be needless exercise of power, overlooks the fact that such power actually exists and if there is any reason to believe, namely, the satisfaction of the assessing authority to examine the source of income, the court would not interfere to close such enquiry. 25. If there is power to do something under the Act, the action taken in the fiscal matters cannot be set aside in exercise of the writ jurisdiction on the ground that such power is to be exercised needlessly, without any purpose. The exercise of power in such case can only be challenged, if the power is being exercised with ulterior motive and mala fide intentions. It is not open for the petitioner to contend before the writ court that the exercise of power, which admittedly exists in the authority, will expose the petitioner to assessment for the same period on which assessing authority has already recorded satisfaction". vi.) Reliance is also placed on the decision of Hon'ble Delhi High Court in the case of CIT vs. Chetan Das Lachmandas (25 taxmann.com 227) wherein it was held that there is no condition in section 153A that additions should strictly be made on basis of evidence found in course of search or other post-search material or information available with Assessing Officer which can be related to evidence found. It was further held that seized material could also be relied upon to draw inference that there were similar transactions throughout period of six years covered by section 153A of the Act. vii.) Even the Hon'ble Delhi High Court in the case of Kabul Chawla (380 ITR 573) has explained the legal position in para- 37 as under: "On a conspectus of Section 153A(1) of the Act, read with the provisos thereto, and in the light of the law explained in the aforementioned decisions, the legal position that emerges is as under: i. Once a search takes place under Section 132 of the Act, notice under Section 153 A(1) will have to be mandatorily issued to the person searched requiring him to file returns for six AYs immediately preceding the previous year relevant to the AY in which the search takes place. ii. Assessments and reassessments pending on the date of the search shall abate. The total income for such AYs will have to be computed by the AOs as a fresh exercise. iii. The AO will exercise normal assessment powers in respect of the six years previous to the relevant AY in which the search takes place. The AO has the power to assess and reassess the 'total income' of the aforementioned six years in separate assessment orders for each of the six years. In other words there will be only ITA Nos.76-81/CTK/2022 23 one assessment order in respect of each of the six AYs "in which both the disclosed and the undisclosed income would be brought to tax". iv. Although Section 153 A does not say that additions should be strictly made on the basis of evidence found in the course of the search, or other post- search material or information available with the AO which can be related to the evidence found, it does not mean that the assessment "can be arbitrary or made without any relevance or nexus with the seized material. Obviously an assessment has to be made under this Section only on the basis of seized material." v. In absence of any incriminating material, the completed assessment can be reiterated and the abated assessment or reassessment can be made. The word 'assess' in Section 153 A is relatable to abated proceedings (i.e. those pending on the date of search) and the word 'reassess' to completed assessment proceedings. vi. Insofar as pending assessments are concerned, the jurisdiction to make the original assessment and the assessment under Section 153A merges into one. Only one assessment shall be made separately for each AY on the basis of the findings of the search and any other material existing or brought on the record of the AO. vii. Completed assessments can be interfered with by the AO while making the assessment under Section 153 A only on the basis of some incriminating material unearthed during the course of search or requisition of documents or undisclosed income or property discovered in the course of search which were not produced or not already disclosed or made known in the course of original assessment. As held in para-iv, it is not necessary that the additions should be strictly made on the basis of evidence found in the course of the search, or other post-search material or information available with the AO which can be related to the evidence found however the assessment made by the A.O. should not be arbitrary. In the present case, the post search inquiries conducted by the Investigation Wing revealed that the unsecured loan received from Jai Matadi Sales Pvt. Ltd. was not genuine and it was a shell company. Hence such post search information was rightly used by the A.O. It must be appreciated that Revenue's appeal against the decision of Hon'ble Delhi High Court in Kabul Chawla (supra) has been dismissed by the Supreme Court on account of the low tax effect. However there are other appeals of the Revenue pending in the Supreme Court questioning the correctness of the said decision. ITA Nos.76-81/CTK/2022 24 For example, the hearing in the Civil Appeal No. 6632 of 2021 in the case of CIT vs. Divine Infracon (P.) Ltd. and other connected matters was posted before the bench of the Hon'ble Supreme Court on 20.09.2022 in order to decide, inter-alia, whether section 153A of the Income-tax Act, 1961 mandates the existence of incriminating material in respect of the assessments that have concluded/are not pending on the date of search in order to assess or re-assess them and also whether the addition to income in respect of the said years, if any, will be restricted to the income emanating out of incriminating material/documents unearthed during the course of search. The Hon'ble Supreme Court has also admitted SLP filed by the revenue in the cases of Gaurav Arora, Param Dairy Limited, Gahoi Foods P. Ltd. and Devi Dass Garg. Thus this issue has not attained finality. In view of above judicial precedents and facts, the appeal of the assessee on this ground is required to be dismissed. 3. In the third ground of appeal, the assessee has challenged that assessment orders are barred by limitation of time. It is alleged by the ld. AR of the appellant that assessment orders u/s.143(3) r.w.s. 153A were required to be passed by 31.03.2015. But these assessment orders were never despatched through post by that date. On the contrary, these assessment orders were personally handed over to him by the A.O. on 08.04.2015. Hence these have been barred by limitation of time. However the official records do not show that the assessment orders were passed by the A.O. beyond the limitation period i.e. 31.03.2015. Section 153(1) states that " No order of assessment shall be made u/s.143 or section 144 at any time after the expiry of two years from the end of assessment year in which the income was first assessable". Thus "made" shall imply that the A.O. should make the assessment order by that date however there is no mention about service of assessment order along with notice of demand. The legislative intent specified in sections 143(2)/148 and other sections is clear wherein which it is stated that the A. O. should “serve on the assessee" as compared to the language used in section 153(1) of the Act. The legislature in its wisdom has not used the term "shall be served on the assessee" U/s. 153(1) for any assessment order or Demand Notice. Similarly Section 263(2) states that " No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which order sought to be revised was passed." Thus "made" shall imply that the Pr. CIT should make the revision order by that date however there is no mention about service of revision order u/s.263 of the Act. ITA Nos.76-81/CTK/2022 25 It is cardinal rule of construction that when the words of a Statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning irrespective of the consequences. It is said that the words themselves best declare the intention of the law giver as held by the Hon'ble Supreme Court in the case of Union of India v. Tata Chemicals Ltd. (363 ITR 658) (para-22). a) In the present case, the assessment orders are dated 31.03.2015. There is no evidence that these were ante-dated. There is no evidence to the effect that such orders were not passed on 31.03.2015. Though these orders have been received by the assessee on 08.04.2015 but there is also no evidence that these have been tempered with by the A.O. The AO had sought the approval of JCIT u/s.153D vide letter dated 25.03.2015 which was approved by the Supervisory Officer vide letter dated 27.03.2015. The ld. CIT(A) has also held in para-10.2 on page-25 of the appellate orders that these assessment orders were uploaded in the systems on 31.03.2015. Hence the allegation of being ante- dated shall not apply to such assessment orders. b) The decision of the Hon'ble Andhra Pradesh High Court in the case of Kodicasu Appalaswamy & Suryanarayana vs. CIT (46 ITR 735) is pertinent in which their lordships held that where an order of assessment had been passed within the period of limitation then the date on which order of assessment and demand notice were served, was not relevant. c) The Hon'ble Gauhati High Court in the case of Ramanand Agarwalla vs. CIT (151 ITR 216) held that as per sub-section 1 of section 153 of the Income Tax Act, 1961, the A.O. is required to pass an order of assessment within the limitation period, it does not require that the demand notice and assessment order should also be issued within that limitation period. The Hon'ble High Court clearly distinguished the legislative intent regarding making of assessment order and service of demand notice. In other words, the statute requires the Income Tax Authority to serve any notice of demand U/s 156 of the Income Tax Act on the assessee not necessarily within the period of limitation U/s 153(1) of the Income Tax Act. In the cited case, the assessment order dated 16.03.1968 (due date 31.03.1968) was served on the assessee on 13.04.1968 and the Hon'ble Gauhati High held that the assessment order was not barred by limitation of time. Similarly in the case of Esthuri Aswathiah vs. CIT (50 ITR 764), the assessment order dated 29.02.1960 (due date 31.03.1960) was served on the assessee on 04.04.1961 and the Hon'ble Mysore High held that the assessment order was not barred by limitation of time. d) In the case of K.U. Srinivasa Rao Vs. Commissioner of Wealth-tax (152 ITR 128), the Hon'ble Andhra Pradesh High Court held that an order of assessment was not an administrative order but a quasi-judicial order. Section 17A(1)(a) of the Income Tax Act, ITA Nos.76-81/CTK/2022 26 1957, requires that an order of assessment should be made within the prescribed period. It does not further require that it should be communicated within the prescribed period. An order must be deemed to have been made on the date on which it is purported to have been made. Therefore, an assessment order purporting to have been made on 31st March, 1979, but served on the assessee on 20th April, 1979, is deemed to have been passed in the eye of law on 31st March, 1979 and not barred by limitation under section 17A(1)(a). e) Similarly in the case of India Ferro Alloy Industry Pvt. Limited Vs. Commissioner of Income Tax (202 ITR 671), the Hon'ble Calcutta High Court held that in its opinion, what was required for completion of the assessment was the determination of the tax liability and issue of demand notice but certainly not the service of the same on the assessee. In view of above cited decisions and facts of the present case, it is clear that the AO had passed the assessment order within limitation period i.e. 31.03.2015. f) The Hon'ble Cuttack ITAT in the case of Sophia Study Circle Vs. ITO, Ward-2(1), Cuttack in ITA No.286/CTK/2012 dated 10.06.2013 for AY 2008-09 has decided this issue in the favour of the Department (para-6 page-4 of the order). "6. We have considered the rival submissions. At the outset, 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 147 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 the provisions of section 149 of the Act, the words used are „issue to the assessee. Thus, each word used in each section has a different purpose and different meaning. „Made‟ cannot 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 the meaning served then the section itself would become unworkable and it would 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 Vs. Hi-Tech Arai Ltd. (2010) 321 ITR 477, we differ from the decision taken by the Coordinate Bench in the case of Durga Condev Pvt. Ltd. (supra) as also the decision of Shanti Lal Godawat & Ors. Vs. ACIT (2009) 126 TTJ (Jodh) 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 order still we differ from the said order as there is no bravery in perpetuating an error in law. The fact that the assessment order ITA Nos.76-81/CTK/2022 27 is dated 31.12.2010 and there is no evidence available to show that this order was not passed on 31.12.2010 makes this order sustainable in law as under the provisions of the General Clauses Act a government document cannot be questioned unless and until substantial evidence has been produced to dislodge the veracity of the same. Under these circumstances, as it is noticed that the assessment order is dated 31.12.2010 and as no evidence has been produced to show or to prove the allegation that the order was back dated, the technical ground raised by the assessee stands rejected". In the case of Sophia Study Circle, the Hon'ble Cuttack ITAT differed from the earlier decision in the case of Durga Condev Pvt. Ltd. in ITA No.162/CTK/2012 dated 18.05.2012. Hence there is a judicial precedent which needs to be followed. g) It may please be appreciated that in case of an assessee, facts and circumstances being same, the Tribunal is required to follow order passed by it. The Hon'ble Cochin Tribunal in the case of ACIT vs. Chandragiri Construction Co. (21 taxmann.com 167) (TM) observed in para-8 of the decision of Hon'ble Vice President (Third Member) as under: "The Tribunal is to follow the decision of another Bench where facts are the same. This is a treaty law. The only other alternative is to refer the matter to the larger bench if the Members of this Bench are not willing to follow the earlier order. In this case, there is no dispute that the facts and circumstances are the same as appearing in the assessment year 2002-03 except change in figures and it is also true that the very same Members decided the issues for assessment year 2002-03 in favour of the assessee. In such circumstances, the only course left to the Bench was to follow the earlier decision in order to gain confidence of public in the judicial system. In case the learned Accountant Member wanted to deviate from the earlier order, the only course left was to refer the matter to the larger bench with the concurrence of the learned Judicial Member which, in this case had not happened. Hence, I am of the view that the learned Accountant Member should have restrained from dissenting or he should have persuaded the learned Judicial Member for referring the matter to the larger Bench. For the sake of uniformity, at least, the very same Bench should have followed its own order. The Bench should not come to a conclusion contrary to the conclusion reached in the earlier order of the Tribunal. In this case, the Bench being the same, definitely contrary view should not have been taken". Therefore the decision of Hon'ble Cuttack ITAT in the case of Sophia Study Circle (supra) being a binding precedent needs to be applied with full force or it should be referred to a larger Bench. ITA Nos.76-81/CTK/2022 28 h) It may please be appreciated that section 263(2) is also similarly worded. Section 263(2) states that " No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which order sought to be revised was passed". Thus "made" shall imply that the Pr. CIT should make the revision order by that date however there is no mention about service of revision order u/s.263 of the Act. The Hon'ble Supreme Court in the case of CIT vs. Mohammed Meeran Shahul Hameed (131taxmann.com 94) has held in para- 4.3 as under: "4.3 On a fair reading of sub-section (2) of section 263 it can be seen that as mandated by sub-section (2) of section 263, no order under section 263 of the Act shall be "made" after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. Therefore the word used is "made" and not the order "received" by the assessee. Even the word "dispatch" is not mentioned in section 263(2). Therefore, once it is established that the order under section 263 was made/passed within the period of two years from the end of the financial year in which the order sought to be revised was passed, such an order cannot be said to be beyond the period of limitation prescribed under section 263 (2) of the Act. Receipt of the order passed under section 263 by the assessee has no relevance for the purpose of counting the period of limitation provided under section 263 of the Income Tax Act. In the present case, the order was made/passed by the learned Commissioner on 26-3-2012 and according to the department it was dispatched on 28-3-2012. The relevant last date for the purpose of passing the order under section 263 considering the fact that the assessment was for the financial year 2008-09 would be 31-3-2012 and the order might have been received as per the case of the assessee- respondent herein on 29-11-2012. However as observed hereinabove, the date on which the order under section 263 has been received by the assessee is not relevant for the purpose of calculating/considering the period of limitation provided under section 263 (2) of the Act. Therefore the High Court as such has misconstrued and has misinterpreted the provision of sub-section (2) of section 263 of the Act. If the interpretation made by the High Court and the learned ITAT is accepted in that case it will be violating the provision of section 263 (2) of the Act and to add something which is not there in the section. As observed hereinabove, the word used is "made" and not the "receipt of the order". As per the cardinal principle of law the provision of the statue/act is to be read as it is and nothing is to be added or taken away from the provision of the statue. Therefore, the High Court has erred in holding that the order under section 263 of the ITA Nos.76-81/CTK/2022 29 Act passed by the learned Commissioner was barred by period of limitation, as provided under sub-section (2) of section 263 of the Act. i) In the case of CIT vs. Subrata Roy (45 taxmann.com 513), the Hon'ble Kolkata ITAT observed that "But in the present case before us, it is a fact that despite repeated opportunities to the Revenue, they could not prove any documentary evidence that the assessment was framed on 31.12.2008 i.e. the date of assessment order. It is a fact that the assessment order and demand notice was handed over to Postal Authorities on 12.02.2009 and the same was received by assessee on 16.02.2009". Hence it was held by the Hon'ble ITAT that the assessment order was barred by limitation since the order of assessment and the demand notice were served 47 days after the limitation period. On appeal, however the Hon'ble Kolkata High Court held that even if demand notice and copy of assessment order was served to the assessee after 47 days from date of assessment order which was last date for making such assessment (31.12.2008), such order could be said to have been passed on date it bore, as a period of 47 days time was not long enough to create any doubt regarding correctness of date of order and hence, such assessment could not be held to be barred by limitation of time. Thus this issue was decided in the favour of the Revenue. The observations of the Hon'ble High court in para-10 & 11 are reproduced as under: "10. We have considered the rival submissions advanced by the learned advocates for the parties and are of the opinion that the submission of Mr. Dudharia must be accepted. The submission that the assessment records were taken into account by the CIT(A) without disclosing the same to the assessee is altogether without any merit. The appellate authority cannot be expected to dispose of an appeal without looking into the assessment records. Had the appellate authority relied upon any independent enquiry or the result of any such enquiry, then it would have been incumbent upon the appellate authority to inform the assessee about the result of such enquiry so as to afford an opportunity to the assessee to make his submission with regard thereto. But the appellate authority had no such obligation to disclose the assessment records to the assessee before taking them into account at the time of hearing of the appeal. An appellate court cannot be prevented from perusing the lower court records. It is a strange submission to make that the lower court records could not have been perused without giving an opportunity to the assessee. The submission that the learned Tribunal was justified in drawing an adverse inference is altogether without any merit. The learned Tribunal was hearing an appeal. The learned Tribunal was not taking evidence of the matter as a Court at the first instance would do. The question for consideration was whether the order dated 31st December, ITA Nos.76-81/CTK/2022 30 2008 could be said to have been passed on 31st December, 2008 when the demand notice together with a copy of the order was served after 47 days. A period of 47 days time is not time long enough which can even make anyone suspicious as regards the correctness of the date of the order. In any case the presumption arising out of clause (e) of Section 114 proves the fact that the order was passed on 31st December, 2008. The same presumption once again would apply to the order dated 13th November, 2009 passed by the CIT (Appeal). There is, as such, no reason to even entertain any doubt as regards the existence of the file including the order dated 31st December, 2008. There is equally no reason to doubt that the assessment order was passed on 31st December, 2008. 11. We are, as such, of the opinion that the order passed by the learned Tribunal cannot be sustained, which is accordingly set aside and the order of the CIT(A) is restored". j) In the case of Nidan, the Hon'ble Cuttack ITAT has followed the decision of Hon'ble Karnataka High Court in the case of B. J. N. Hotels Ltd. (382 ITR 110) which was rendered on different facts. In the case of B. J. N. Hotels, the premises of the assessee company engaged in hotel business were subjected to search and proceedings. In response to notice u/s.153A, the assessee filed its return of income declaring loss. Proceedings by order dated 31st July, 2006, initiated under section 142(2A) of the Act, appointing a special auditor came to be dropped as no opportunity was provided to the assessee. A notice was issued under section 142(2A) of the Act on 30th November, 2006 proposing to send the books of account of the assessee for special audit. The assessee objected but the Assessing Officer obtained prior permission from the Commissioner on 18th December, 2006 and directed the assessee to get the accounts audited fixing the due date for submission of the special audit report on 28th February, 2007. The assessment was completed u/s.153A r.w.s. 143(3) of the Act by an order dated 27th April, 2007 and the orders were served on the assessee on 30th April, 2007. The Commissioner (Appeals) allowed the appeal filed by the assessee in part. The following questions of law came to be referred to the Hon'ble High Court; "1. Whether the Tribunal was correct in law in holding that the time for furnishing the special audit report could not have been extended beyond 27th January, 2007 being 180 days from 31st July, 2006 being the date of the first direction and the order of assessment ought to have been made by 26th March, 2007 and consequently the assessment order passed on 27th April, 2007 is barred by limitation on the facts and circumstance of the case ? 2. Whether the Tribunal is correct in law in holding that the Assessing Officer does not have the power to unilaterally withdraw the direction for audit under section 142(2A) of the Income Tax Act as the original direction was made with the ITA Nos.76-81/CTK/2022 31 approval of the commissioner of Income Tax on the facts and circumstance of the case ? 3. Whether the Tribunal was correct in law in holding that the assessment order passed on 27th April, 2007 is barred by limitation as successive direction under section 142(2A) is not permissible and the second direction given to obtain the audit report before 28th February, 2007 is to elongate the assessment proceedings and also contrary to section 142(2C) of the Act on the facts and circumstance of the case ? 4. Whether the assessment order is barred by limitation as it was made beyond the period of limitation on the fact and circumstances of the case ?" On appeal, the Hon'ble Karnataka High Court held that the period prescribed under law being sixty days, the assessment orders were required to be issued on or before 26th March, 2007 considering sixty days from 27th January, 2007, the due date for the special auditor‟s report as specified under section 142(2C) of the Act. The assessment orders were dated 27th April, 2007. The due date for submission of the special audit report upon second reference of the Commissioner dated 18th December, 2006 being 28th February, 2007, the assessment orders were to be issued on or before 29th April, 2007. On the direction of Hon'ble High Court to produce the original records, the same were placed before the court. But it was noticed that there were certain over writings in the order sheet as regards date of passing of the order by the Assessing Officer and moreover, a particular page of the order sheet was maintained on a rough sheet (in an unusual manner) different from other pages of the order sheet. Besides this flaw in the records, the counsel for the Revenue was neither able to point out from the records that the assessment orders were dispatched on 27th April, 2007 nor produced the dispatch register to establish that the orders were complete and effective i.e. if these were issued then these were beyond the control of the authority concerned within the period of limitation. Hence in these peculiar facts, it was held that the assessment orders were barred by limitation. These facts & circumstances do not exist in the present case. Here the assessment orders have been passed before the prescribed period as laid down in section 153 of the Act. There is no allegation against the A.O. to the effect that there are certain over- writings in the order sheet as regards the date of passing order by the A.O. The A.O. has not used any rough paper (other than order sheet) for writing the entries. k) The Hon'ble Mumbai ITAT in the case of Jai Jinendra Cold Storage Pvt. Ltd. vs. ITO in ITA No.2584 & 2585/Mum/2011 dated 08.02.2012 has decided this issue in the favour of the Revenue. In this case, it was argued by the assessee that since the assessment order dated 30.12.2009 was dispatched by the department on 01.01.2010 which was received by the assessee on ITA Nos.76-81/CTK/2022 32 02.01.2010 as per postal receipt, therefore, the assessment order dated 30.12.2009 was barred by limitation as according to the Act the assessment order was required to be served by 31.12.2009. Reliance was also placed on the decision of Hon'ble Jodhpur Tribunal in the case of Shantilal Godawat & Others vs. ACIT (2009) 30 DTR 413, wherein it was held that "the assessment order passed on 28.12.2007 but served on 02.01.2008, beyond the period of limitation of 31.12.2007 was barred by limitation and thus non-est in law". On appeal, the Hon'ble Mumbai ITAT held in paras-7 to 8 as under: "7. We have carefully considered the submissions of the rival parties and perused the material available on record. We find that there is no dispute that the impugned assessment order was passed on 30.12.2009. It is also not in dispute that the same was received by the assessee within three days i.e. on 2.1.2010. Under the provisions of section 153 of the Act, it has been mentioned that the order of assessment has to be made within twenty one months from the end of the relevant assessment year i.e. in the case of the assessee on or before 31.12.2009. It is not necessary that the order of the assessment should be communicated to the assessee or that notice of demand in pursuance thereof should be served on him within the above period. The assessee placed no material on record to show that the order of assessment was not passed on 30.12.2009. Merely because according to the assessee that it was dispatched on 01.01.2010 does not mean that the assessment order was passed after the statutory time limit provided under the Act. 8. In B.J. Shelat vs. State of Gujarat, AIR 1978 SC 1109, it has been held (at page 471) : " The question as to when an order can be stated to have been made was the subject of consideration by this court in Government Wood Workshop vs. State of Kerala [1988] 69 STC 62 ; [1987] 1 KLT 804 in which this court stated, after relying on various decisions of the Supreme Court culminating in B.J. Shelat v. State of Gujarat, AIR 1978 SC 1109, as follows (at page 69): "The order of any authority cannot be said to be passed unless it is in some way pronounced or published or the party affected has the 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, before it is made known, based on subsequent information, thinking or change of opinion. To make the order complete and effective, it should be issued, so as to be beyond the control of the authority concerned, for any possible change or modification therein. This should be done within the prescribed period, though the actual service of the order may be beyond that period". (emphasis supplied). ITA Nos.76-81/CTK/2022 33 Respectfully following the same and in the absence of any material to show that the order passed by the AO was not made on 30.12.2009, we hold that the order passed by the AO was within the limitation and not barred by limitation. The plea taken by the learned counsel for the assessee is without any merit and hence, the same is rejected". l) Similar to section 153 of the Act, there is no mention in section 263(2) of the Act to the effect that the revision order passed by Pr. CIT should be served within prescribed due date of passing such order. In the case of Jaidurga Minerals vs. Pr. CIT in ITA No.276/CTK/2015 dated 10.08.2020, the Hon'ble Cuttack ITAT has observed in para-10 as under: "10. In ground No.1 ld. AR raised an issue regarding service of order which has been served by the assessee on 04.04.2015, which is placed in paper book at page No.21 wherein in the right side top, it has been mentioned that the order dated 30.03.2015 passed u/s.263 of the Act was received through speed post by the office staff on 04.04.2015. According to the arguments of the assessee the order should be served up to the end of the financial year i.e. 31.03.2015 but the order has been received by the assessee on 04.04.2015, which is illegal. In this regard, we refer to the provisions of Section 263(2) of the Act, which reads as under “263(2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed.” From the record, it is clear that the assessment order u/s.143(3) of the Act was passed on 22.03.2013 and the Pr. CIT has passed his order on 30.03.2015, therefore, the order is within two years from the relevant date. From the reading of the provisions of Section 263(2) of the Act, it is clear that there is no mention about the “service” of the order, however, it is only mentioned that the order shall be “made”. With regard to “service” it has clearly been defined in the section 143(2) of the Income Tax Act but in section 263 of the Act nowhere about service of order has been mentioned. Therefore, this argument of the assessee with regard to ground No.1, is dismissed". m) In the case of CIT vs. Hi-Tech Arai Limited (321 ITR 477), the Hon'ble Madras High Court held that there is no merit in argument that the Tribunal should blindly follow its own earlier decision even if such earlier decision did not reflect the correct position of the law. Thus where the Tribunal by the impugned order had applied section 32(1)(iia ) to the facts involved in the case of the assessee and had found that the assessee was entitled for the additional depreciation claimed under the said provision, it could not be held that simply because a co-ordinate Bench of the Tribunal had earlier taken a different view, the Tribunal on this occasion also ought to have followed the same, especially when it was found that the Tribunal had applied the law correctly in the impugned order. In ITA Nos.76-81/CTK/2022 34 view of binding precedent in case of Sophia Study Circle, it is humbly requested that this legal issue raised by the assessee needs to rejected and dismissed. 12. We have considered the rival submissions. Coming to the first issue raised by the assessee in regard to the satisfaction u/s.153D of the Act, admittedly, the provision of Section 153D of the Act prescribes that the assessment order must have the approval of the Addl. CIT if the order is passed below the rank of JCIT. It is an admitted fact that an approval has been obtained for a draft assessment order passed on 27.03.2015. It is also an admitted fact that the Addl. CIT has directed the AO to do further verification and to proceed with the assessment without taking any further approval. This is where the error took place. The satisfaction of the Addl. CIT is not there as per the provisions of the Section 153D of the Act in respect of the variation in the income between that as was determined in the draft assessment order as on 27.03.2015 and as determined in the assessment order dated 31.03.2015. There is no power available with the Addl. CIT to override the provisions of Section 153D of the Act and to direct the AO to do any further verification and to proceed with the assessment order without obtaining any further approval from the Addl. CIT. The Addl. CIT is a creature of statute and the statute binds him. The assessment order is a statutory document and it is bound by the rules of statute. This approval u/s.153D of the Act is an administrative act and if an administrative act has been prescribed in respect of the statutory document, such administrative act has to be done in respect of that statutory document. Failure of such act or the waiver of such act would ITA Nos.76-81/CTK/2022 35 lead to a statutory document being passed erroneously. Admittedly, such document does not become void ab initio. This being so, respectfully following the decision of the Hon’ble Jurisdictional High Court in the case of Shiv Kumar Agrawal (supra) as also the coordinate bench of the Tribunal in the case of Gobardhan Matia(supra), as the irregularity in the assessment proceedings has taken place when the final assessment order has been passed without obtaining the approval of the Addl. CIT, we are of the view that the issue in this appeal would have to be restored to the point before passing of the impugned assessment order to obtain the approval of the Addl. CIT and then to proceed therefrom in accordance with law. Consequently, this ground of assessee’s appeal for all the assessment years under consideration is partly allowed for statistical purposes. 13. Coming to the issue of time barring of the assessment order is passed u/s.153A of the Act allegedly on 31.03.2015. It is an admitted fact that notice u/s.142(1) of the Act has been validly issued on 30.03.2015. It is also an admitted fact that the assessee has responded to the said notice on the evening of 31.03.2015 as the same is found recorded in the order sheet entry which is even extracted above. Thus, obviously after obtaining the reply of the assessee on the evening of 31.03.2015, copies of which has been shown in pages 45 to 51 of the paper book, which also shows in Annexures thereto. It has been mentioned by the ld. AR running in more than 100 pages. A similar reply had been given for seven assessment years in the case of this assessee and in the case of another ITA Nos.76-81/CTK/2022 36 three assessees totaling to 28 replies. Admittedly, it would have been a task impossible to complete the assessment order on 31.03.2015. The fact that there is no dispatch entry, which is normally available in the assessment folder once the assessment order is passed, is conspicuous by its absence in the present case. This coupled with the fact that instead of following normal practice of dispatching the orders through speed post, which is also the prescribed method, the AO has adopted the approach of hand delivery of the order that too on the authorized representative of the assessee. Clearly this gives the indication that the assessment order was not passed on 31.03.2015, but was passed on a subsequent date and ante dated. The finding of the ld. CIT(A) that the assessment order was uploaded in the ITBA website on 31.03.2015 does not hold water insofar as the ITBA System came into effect only in the year 2017. Even otherwise the ITBA does not specify the date on which the order was uploaded. It only specifies the date of the order. This being so, in view of the principles laid down in the decision of the Hon’ble Jurisdictional High Court in the case of Nidan, reported in 220 DTR (Orissa) 137 and also the decision of the coordinate bench of the Tribunal in the case of Sujata Panda, reported in (2022) 220 TTJ (Ctk) 899, wherein the said decision of the Hon’ble Jurisdictional High Court has been followed, wherein in para 7, which has been extracted earlier, the assessment order is quashed on account of being barred by limitation. Accordingly, this ground raised by the assessee in all the appeals for the respective assessment years under consideration stands allowed. ITA Nos.76-81/CTK/2022 37 14. The ld. AR has not argued any of the other grounds. Consequently, the same are dismissed as not argued. 15. As we have already quashed the assessment order on account of being barred by limitation, the appeals filed by the assessee stand allowed. 16. In the result, all appeals of the assessee stand allowed. Order dictated and pronounced in the open court on 01/02/2023. Sd/- (जाजज माथन) (GEORGE MATHAN) Sd/- (अरुण खोड़पऩया) (ARUN KHODPIA) न्यानयक सदस्य / JUDICIAL MEMBER ऱेखा सदस्य/ ACCOUNTANT MEMBER कटक Cuttack; ददनाांक Dated 01/02/2023 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतलऱपऩ अग्रेपषत/Copy of the Order forwarded to : आदेशान ु सार/ BY ORDER, (Assistant Registrar) आयकर अऩीऱीय अधधकरण, कटक/ITAT, Cuttack 1. अऩीऱाथी / The Appellant- Bibhudutta Panda, Plot No.73 & 74, Jayadev Vihar, Bhubaneswar-751013 2. प्रत्यथी / The Respondent- ACIT, Corporate Circle-1(2), Bhubaneswar 3. आयकर आय ु क्त(अऩीऱ) / The CIT(A), 4. आयकर आय ु क्त / CIT 5. पवभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack 6. गार्ज पाईऱ / Guard file. सत्यापऩत प्रयत //True Copy//