Gobardhan Matia, Keonjhar V. ACIT, Bhubaneswar

ITSSA 65/CTK/2013

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2746 (ITAT-CUTTACK)
• Duration Of Justice: 9 year(s) 3 month(s) 30 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 21-09-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: DB
• Next Hearing Date: 21-09-2022
• Assessment Year: 2006-2007
• Appeal Filed On: 22-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Assessment record; Set aside
• Section: 113; 13; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE AND ARUN KHODPIA, ACCOUNTANT MEMBER IT(ss)A No IT(ss)A No. IT(ss)A No. IT(ss)A No. IT(ss)A No. IT(ss)A No. Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar PAN/GIR No. (Appellant IT(ss)A No. IT(ss)A No. IT(ss)A No. IT(ss)A No. IT(ss)A No. IT(ss)A No. ACIT, Circle Bhavan, Rajaswa Vihar, Bhubaneswar. (Appellant IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI GEORGE MATHAN, JUDICIAL AND ARUN KHODPIA, ACCOUNTANT MEMBER A No.62/CTK/2013:Assessment Year : IT(ss)A No.63/CTK/2013:Assessment Year : IT(ss)A No.64/CTK/2013:Assessment Year : 200 IT(ss)A No.65/CTK/2013:Assessment Year : 200 IT(ss)A No.66/CTK/2013:Assessment Year : 200 IT(ss)A No.127/CTK/2013:Assessment Year : 200 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Vs. ACIT, Circle Bhavan, Rajaswa Vihar, Bhubaneswar. PAN/GIR No.AAWPH 1358 H (Appellant) .. ( Respondent IT(ss)A No.81/CTK/2013:Assessment Year : 2003 IT(ss)A No.82/CTK/2013:Assessment Year : IT(ss)A No.83/CTK/2013:Assessment Year : 200 IT(ss)A No.84/CTK/2013:Assessment Year : 200 IT(ss)A No.85/CTK/2013:Assessment Year : 200 IT(ss)A No.138/CTK/2013:Assessment Year : 200 ACIT, Circle-1(2), Aayakar van, Rajaswa Vihar, Bhubaneswar. Vs. Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar PAN/GIR No. (Appellant) .. ( Respondent Assessee by : Shri Sunil Mishra, AR Revenue by : Shri M.K.Gautam, CIT Date of Hearing : 22 /9 Date of Pronouncement : 22/9 Page1 | 16 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND ARUN KHODPIA, ACCOUNTANT MEMBER Year :2003-04 3:Assessment Year : 2004-05 3:Assessment Year : 2005-06 3:Assessment Year : 2006-07 3:Assessment Year : 2007-08 3:Assessment Year : 2008-09 ACIT, Circle-1(2), Aayakar Bhavan, Rajaswa Vihar, Bhubaneswar. Respondent) 3:Assessment Year : 2003-04 3:Assessment Year : 2004-05 3:Assessment Year : 2005-06 3:Assessment Year : 2006-07 3:Assessment Year : 2007-08 3:Assessment Year : 2008-09 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar PAN/GIR No.AAWPH 1358 H Respondent) Mishra, AR , CIT DR 9/2022 9/2022 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page2 | 16 O R D E R Per Bench IT(ss) A Nos.62 to 66/CTK/2013 are the appeals filed by the assessee against the separate orders all dated 25.3.2013 of ld CIT (A)-1, Bhubaneswar in Appeal Nos.0332/10-11, 0333/10/11, 0334/10-11, 0335/10-11, 0336-10-11 for the assessment years 2003-04 to 2007-08 and IT(ss) A No.127/CTTK/2013 is filed against the order of the ld CIT(A)-1, Bhubaneswar dated 27.5.2013 in Appeal No.0337/10-11 for the assessment year 2008-09. 2. IT(ss) A Nos.81 to 95/CTK/2013 are the appeals filed by the revenue against the separate orders all dated 25.3.2013 of ld CIT(A)-1, Bhubaneswar in Appeal Nos.0332/10-11, 0333/10/11, 0334/10-11, 0335/10-11, 0336-10-11 for the assessment years 2003-04 to 2007-08 and IT(ss) A No.138/CTTK/2013 is filed against the order of the ld CIT(A)-1, Bhubaneswar dated 27.5.2013 in Appeal No.0337/10-11 for the assessment year 2008-09. 3. Shri Sunil Mishra, ld AR appeared for the assessee and Shri M.K.Gautam, ld CIT DR appeared for the revenue. 4. At the outset, ld CIT DR submitted that the assessee has filed a paper book only on 20.9.2022. It was the submission that he has been granted only two days. Consequently, it was his prayer that the Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page3 | 16 adjournment should be granted so that he could analyse the papers submitted in the paper book. The adjournment sought by ld CIT DR is rejected. It was then submitted by ld AR appeared for the assessee that as the assessee is challenging the approval u/s.153D alleged to have been granted to pass the assessment order u/s.153D, the revenue may be directed to produce the assessment records and consequently, the appeals may be adjourned. This request of ld AR has also been rejected. It must be mentioned here that these appeals have been filed in 2013. These appeals have been posted more than 16 times. For one reason or another, adjournments have been sought by the assessee and now after 9 years of filing of the appeals, the paper book has been filed. The paper book filed contains 209 pages. Pages 1 to 3 are the written submission of the assessee. Pages 4 to 41 are the certified copies of the order sheet for the assessment years 2003-04 to 2008-09. Pages 42 to 209 are nothing but case laws. Ld AR has filed written submission, which is extracted below: “1. That the above noted appeals are pending before this Hon’ble Tribunal and fixed for hearing on 30.08.2022. ` 2. That Ground No. 13 for the AYs 2003-04 & 2004-05, Ground No. 12 for AYs 2005-06 to 2008-09 of the Appeals filed by the assessee relate to non-compliance to the provisions of section 153D .The assessee Appellant has obtained certified copies of the relevant order sheets on 06.04.2022 and he is also prepared to file the same before this Hon’ble Bench, if so directed by your Honours. Perusal of the said order sheets would reveal that there is no entry regarding sending of proposals by the Ld. AO along with draft assessment orders and the relevant original assessment records seeking approval u/s 153D. Again there is no entry in the said order sheets in support of the fact that approval u/s 153Dwas received from the Ld. Range Head by the Ld. AO .It may be mentioned that Order sheet is Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page4 | 16 public document u/s 74 of Indian Evidence Act,1872. As per section 35 of Indian Evidence Act,1872 entry (or non-entry) in the order sheet of the Assessing Officer is itself a relevant fact. 3. That the appellant would like to draw kind attention of the Honourable Bench to the decision of Honourable ITAT Delhi in the case of Ajay Sharma, New Delhi Vs. DCIT,Ghaziabad, ITA number 3554/Del./2015 delivered on 14 th of February 2020. In this case, though the AO, at the end of the assessment order has mentioned that order is passed with prior approval of Additional CIT, the order sheet of the AO did not show that the AO has sent any proposal for approval to the Additional CIT. According to paragraph 8.4 of the said order of the Honouble ITAT, "Learned Counsel for the Assessee filed copy of the order sheet of the A.O, which does not mention if A.O. has sent any proposal to the JCIT/Addl. CIT for obtaining prior approval before passing the impugned assessment order". On these facts, Honourable ITAT held that, "In view of the above discussion, we set aside and quash the entire impugned appellate orders. Resultantly, all the additions stand deleted. Additional ground of appeal of assessee is allowed." 4. That it is further submitted that vide order dated 21.01.2022 of this Hon’ble Bench in the case of M/S Serajuddin & Co. ,which is the main case of this Group ,for the AYs 2003-04 to 2009-10 in ITA(ss) A No.s . 25 to 28/CTK/2013 , ITA(ss) A No. 22/CTK/2013 , ITA(ss) A No. 16/CTK/2013 & ITA(ss) A No. 17/CTK/2013 respectively, the orders of authorities below were quashed on the ground of non-compliance to the provisions of section 153D.In the said order dated 21.01.2022 at page-25 in bold letters the submission of the Appellant in that case was noted by this Hon’ble Bench that the so called proposal dated 29/12/2010 of the Ld. AO seeking approval u/s 153D and also the so called approval dated 30/12/2020 u/s 153D were filed by the Revenue on 26/02/2020.But in the case of the present Appellant no such documentary evidences were made available to the Appellant during the course of appellate proceedings before the Ld. CIT(A).Rather the Ld. CIT(A) held that there is no need to make those documents available to the assessee appellant by the Revenue. From the said conduct of the authorities below , it is reasonable for any well instructed prudent mind to infer that these crucial documents were not available at the relevant point of time for which reason the same could not be provided to the assessee appellant. But as per the provisions of section 153D , the Ld. AO was required to obtain separate approvals u/s 153D in respect of each Assessment Year as held in the following cases:- a. Decision dated 07/10/2021 of Hon’ble ITAT Lucknow Bench in the case of Smt. Sapna Gupta v. DCIT in IT(SS)A. No.424/Lkw/2019 , Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page5 | 16 b. Decision dated 07/04/2021 of Hon’ble ITAT ‘A’ Bench, Mumbai delivered by Hon’ble President in the case of Arch Pharmalabs v. ACIT in ITA. No.6656/Mum/2017 for AY 2011- 12 & c. Decision dated 20/01/2020 of Hon’ble ITAT Ranchi Bench, in the case of M/S Rajat Minerals (P) Ltd. v. DCIT in ITS. Nos.41 to 47/Ran/2019. The Ld. AO and the Ld. Range Head were supposed to follow clause 9 of Manual of Office Procedure , Volume II(Technical) , February , 2003 issued by Directorate of Income Tax,CBDT (reproduced below) ,which were held to be mandatory in nature in the case of CIT v. Shri Akil Gulamali Somji in ITA(L) HC Bom No. 1416-19 of 2012 in respect of which Hon’ble Supreme Court dismissed SLP No.19389 of 2013 on 05.08.2013 , also noted at page - 49 of the Paper Book (page-8 of decision dated 13.02.2015 of Hon’ble ITAT, Hyderabad in the case of Sri Ch. Krishna Murthy v. ACIT in ITA No.766/Hyd/2012) filed on 26.10.2021 in the case of M/S Serajuddin & Co. , which is the main case of this Group ,for the AYs 2003-04 to 2009-10 in ITA(ss) A No.s . 25 to 28/CTK/2013 , ITA(ss) A No. 22/CTK/2013 , ITA(ss) A No. 16/CTK/2013 & ITA(ss) A No. 17/CTK/2013 respectively. "9. Approval for assessment : An assessment order under 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- 1 2-1996 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 obtained should also be mentioned in the body of the assessment order itself." The Appellant also rely on the Hon’ble Supreme Court decision in the case of Sahara India(Firm) v. CIT : 300 ITR 403 (SC) (APB) 284-289) holding “ that it is civil consequences which obliterates the distinction between quasi-judicial and administrative function. Moreover, with the growth of administrative law , the old distinction Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page6 | 16 between judicial act and administrative act has withered away”. The Appellant would also wish to draw the kind attention of this Hon’ble Bench to para-6 of the decision in the case of Sahara India(Firm) supra whereby it is held as under: “ Needless to emphasise that before granting approval, the Chief Commissioner or the Commissioner, as the case may be, must have before him the material on the basis whereof an opinion in this behalf has been formed by the Assessing Officer. The approval must reflect the application of mind to the facts of the case”. 1. That in view of submission in Paras-2,3 and 4 above, the appeals may kindly be decided in favour of the Appellant.” 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. Ld AR drew our attention to manual of office procedure Volume-II (Technical) issued in February, 2003, wherein, in clause -9, it is held as under: “"9. Approval for assessment : An assessment order under Chapter XIV-B can be passed only with the previous approval of the range JCIT/ADDL.CIT. Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page7 | 16 (For the period from 30-6-1995 to 31-1 2-1996 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 obtained should also be mentioned in the body of the assessment order itself." 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 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page8 | 16 approval if at all is there, the same should 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 and Ors order 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 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page9 | 16 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 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 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page10 | 16 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 v. 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 alongwith 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 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page11 | 16 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 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 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page12 | 16 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 Seerajudin & 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 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page13 | 16 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 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, Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page14 | 16 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 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page15 | 16 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 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. Order dictated and pronounced in the open court on 22/9/2022. Sd/- sd/- (Arun Khodpia) (George Mathan) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 22/9/2022 Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar Page16 | 16 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Assessee: Gobardhan Matia, At/PO: Balda, Joda, Dist: keonjhar 2. The Revenue: ACIT, Circle-1(2), Aayakar Bhavan, Rajaswa Vihar, Bhubaneswar 3. The CIT(A)1, Bhubaneswar 4. Pr.CIT-1, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//