Neelachal Carbo Metalicks (p) Ltd., Bhubaneswar V. ACIT, Corporate Circle-1 (2), Bhubaneswar

ITSSA 67/CTK/2019

• Counselvise Citation: [2021] 104 COUNSELVISE.COM (IT) 5695 (ITAT-CUTTACK)
• Duration Of Justice: 2 year(s) 3 month(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 22-12-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 22-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Document seized; Principle of natural justice; Competent authority; Assessment record; Block assessment; Documents seized
• Section: 153A; 158BC; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BEFORE S/ AND MANISH BORAD, ACCOUNTANT MEMBER Neelachal Carbo Metali Ltd., Plot No.N Village, Nayapali, Bhubaneswar PAN/GIR No. (Appellant Per Bench Both the separate order assessment year 2. At the outset, both the sides have agreed that grounds raised in both the assessment years are identical. adjudication in these appeals, the same were heard together and are being disposed of by a common order for the sake of convenience. grounds are identical in other two appe this appeal shall also apply to IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK S/SHRI CHANDRA MOHAN GARG, JUDICIAL AND MANISH BORAD, ACCOUNTANT MEMBER IT(ss)A Nos.67 & 68/CTK/20 Assessment Years : 2011-12 & 2012 Neelachal Carbo Metalicks Pvt Ltd., Plot No.N-4/158, IRC Village, Nayapali, Bhubaneswar Vs. Asst.Commissioner of Income Tax, Corporate Circle Bhubaneswar No.AABCN 7333 D (Appellant) .. ( Respondent Assessee by : Shri S.K.Agarwal Revenue by : Shri M.K.Gautam, Date of Hearing : 28/10/ 20 Date of Pronouncement : 23/12 O R D E R Both the appeals filed by the assessee are directed orders of the CIT(A),1, Bhubaneswar both dated 13.8.2019 assessment years 2011-12 & 2012-13, respectively. At the outset, both the sides have agreed that grounds raised in both the assessment years are identical. Since common issues are involved for adjudication in these appeals, the same were heard together and are being disposed of by a common order for the sake of convenience. grounds are identical in other two appeals, our findings on the ground this appeal shall also apply to other appeal. Hence, we proceed to Page1 | 16 IN THE INCOME TAX APPELLATE TRIBUNAL, JUDICIAL MEMBER AND MANISH BORAD, ACCOUNTANT MEMBER /CTK/2019 12 & 2012-13 Asst.Commissioner of Income Tax, Corporate Circle-1(2), Bhubaneswar Respondent) S.K.Agarwal , AR CIT (DR) / 2021 12/2021 are directed against the both dated 13.8.2019 for the At the outset, both the sides have agreed that grounds raised in both Since common issues are involved for adjudication in these appeals, the same were heard together and are being disposed of by a common order for the sake of convenience. Since the als, our findings on the ground in appeal. Hence, we proceed to IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page2 | 16 adjudicate Ground No.1 of the appeal in IT(ss)A No. 67/CTC/2019 as a lead case. Ground No.1 is as under: “ That, the assessment order passed u/s.153A(b) of the Act is not sustainable in view of the fact that the approval u/s.153D had been granted by the ld Addl. Commissioner of Income Tax prior to completion of the assessment proceedings which is not in accordance with the law and, therefore, the assessment order is liable to be quashed.” 3. Ld A.R. submitted that in this case, the Addl. CIT, Range-1, Bhubaneswar issued order dated 27.3.2015 stating subject “ approval of search assessment order u/s.153D –Regarding”. Copy of this order has been placed at pages 77 to 89 of APB. Ld A.Rl. further pointed out that in the said order dated 27.3.2015, Addl. CIT pointed out some deficiencies in the case of present assessee for assessment years 2011-12 & 2012-13 in paragraph 5-6 of the order. Ld A.R. further drew our attention to the copy of the notice u/s.142(1) of the Act issued by the Assessing Officer dated 30.3.2015, wherein, the AO has issued a notice alongwith questionnaire/show cause for the assessment years 2007-08 to 2012-13 including present assessment years 2011-12 & 2012-13, for which, the AO has raised queries for six years including assessment years 2011-12 & 2012-13. Ld A.R. further elaborated that the AO has passed order on 31.3.2015, wherein, in the last page of assessment order, has mentioned that “prior approval of Addl. Commissioner of Income Tax, Range-1, Bhubaneswar in this regard has been obtained u/s.153D vide his letter IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page3 | 16 No.Addl. CIT/R/1/153D/2014-15/7571 dt.27.3.2015”. ld A.R. further submitted that it is clear and vivid that the AO vide his letter dated 25.3.2015 requested Addl. CIT, Range-1, Bhubaneswar to grant approval for passing assessment order u/s.153A of the Act in 28 cases, including the present two appeals for assessment years 2011-12 & 2012-13 listed at Sl. Nos. 26 & 27.. Ld A.R. further explained that it is also ample clear that in pursuance to letter of the AO dated 25.3.2015, Addl. CIT, Range-1, Bhubaneswar issued order on 27.3.2015 by indicating deficiencies in assessment orders and in paras 5 & 6, Addl. CIT pointed out some deficiencies in the draft assessment orders for assessment yer 2011-12 & 2012-13 of present assessee. Ld A.R. submitted that due to deficiency and instruction issued by ld Addl. CIT, in the order dated 27.3.2015, the AO again issued notice u/s.142(1) of the Act on 30.3.2015 asking to file some details and documents from the assessee. 4. Ld A.R. further submitted that after the deficiency and defects pointed by ld Addl. CIT, the AO proceeded to issue notice u/s.142(1) of the Act on 30.3.2015 and, thereafter, final draft assessment order superseding the earlier draft order sent by the AO on 25.3.2015 to the ld ACIT, Bhubaneswar were made and without obtaining the approval u/s.153D of the Act from the competent authority/ Addl. CIT, Range-1, Bhubaneswar, the AO passed order on 31.3.2015. Therefore, it is clear that the AO has not complied with the requirement of section 153D of the Act while passing IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page4 | 16 the order u/s.153A of the Act from the competent authority regarding final draft order prepared after issuance of notice u/s.143(2) of the Act. Ld A.R. further drew our attention towards pages 132 to 144 of PB-1 and submitted that in similar order dated 27.3.2015, the Addl. CIT, Range-1, Bhubaneswar also granted so called approval u/s.153D of the Act in the case of Smt. Gitarani Panda, which was listed at Sl.No.15 to 21 of the table available at page 78 of the paper book at page 2 of order of ld ACIT. Ld A.R. further drew our attention towards relevant paras 6, 24, 25 & 26 of the said order in the case of Smt. Gitarani Panda, reported in (2018) 194 TTJ (CTC) 915 and submitted that in similar facts and circumstances of the case, the Tribunal has held that the alleged approval letter dated 27.3.2015 of the Addl. CIT, Range-1, Bhubaneswar does not constitute the approval which is envisaged by the provisions of section 153D of the Act. Thus, following the decision of Hon’ble Bombay High Court in the case of Akil Gulamali Somki vs ITO in IT appeal (L) No.1416 of 2012 order dated 15.1.2013, it was held that the impugned assessment order u/s.153D of the Act is void and bad in law. Ld A.R. submitted that the Tribunal has allowed the grounds of the assessee quashing the impugned assessment order in the case of Gitarani Panda (supra). 4. Replying to above, ld CIT DR drew our attention towards written submission pages 1 to 5 and submitted that in the case of Akil Gulamali Somji (supra), the ITAT Pune has passed order on different fats and IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page5 | 16 circumstances and in that case, the AO while framing assessment u/s.153C of the Act, had failed to obtain the necessary approval u/s.153D of the Act but in the present case, the Addl. CIT, Range-1, Bhubaneswar has accorded approval vide his letter No.Addl. CIT/R-1/153D/2014-15/7571 dated 27.3.2015. Ld CIT DR pointed out that without prejudice to above submissions, made on this ground, in the case of Shaw Wallace & Co. Ltd vs ACIT, 68 ITD 148, it was held by ITAT, Kolkata that even if there happens to be some mistake/irregularity in granting approval u/s.158BG by the CIT, same is not fatal inasmuch as the resultant block assessment order remains very much assailable in appeal before the Tribunal and such approval even if laconic in some aspects, will not invalidate the assessment order. The written submission filed by ld CIT DR in this regard is as follows: “It has been argued that approval u/s. 153D has been granted by the Supervisory Officer (Add!. CIT, Range-1, Bhubaneswar) on 27.03.2015 prior to the completion of assessment proceedings which is not as per law and therefore the assessment order is liable to be quashed. a) In this regard, the approval of the Supervisory officer U/S.153D vide letter dated 27.03.2015 may kindly be perused (page-88 of paper book). In the second last paragraph of letter dated 27.03.2015 (page-89 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. It is also mentioned that the final orders along with demand notices should be served on the assessee and proof of service should be kepi in the assessment folders. b) It is further mentioned by the Supervisory Officer that copy of final assessment order should be sent to his office for record. Thus after carrying out the necessary enquiries, the A.O. was not required to again seek his approval. c) The decision of Hon'ble Cuttack IT AT in the case of Manjusmita Dash/Geetarani Panda in ITA No.l & 2/CTK/2017 IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page6 | 16 dated 05.07.2018 (194 TTJ 215) has been rendered on different facts and circumstances. Kindly refer to paragraph-6 of said judgement (page- 133 of paper book). In the case of Smt. Geetarani Panda, the total income for AY 2007-08 \ide order u/s. 153A dated 31.03.2015 stood at Rs.24,67,700/- whereas the draft order seeking approval showed assessed income of Rs. 1,31,960/- only. Similarly in the case of Smt. Manjusmita dash, the total income for AY 2007-08 vide order U/S.153A dated 31.03.2015 stood at Rs.3,44,785/- whereas the draft order seeking approval showed assessed income of Rs.1,31,000/- only. On the other hand, in the present-case, the total income as per draft* order and final assessment order stand at same figure (Rs.2,60,39,740/- for AY 2011-12 and Rs.2,83,94,150/- for AY 2012-13). Hence the A.O. was not required to again seek approval of the^ Supervisory Officer. d) 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 documents; he has also analyzed the audited balance sheets/profit & loss account for the relevant years. e) 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). f) The approval granted under section L53D 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 IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page7 | 16 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. g) 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. 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), h) The Judgement of the Hon'ble Mumbai Tribunal in the case of Smt. Shreelekha Damani (88 taxmann.com 383) is distinguishable on facts and circumstances. In para-10 of the decision (on page-3), it has been mentioned that the Addl. CIT, Central Range-7 had asked the AO to submit the draft orders for approval u/s. 153D on or before 24.12.2010. However the draft order was submitted on 31.12.2010 thereby he was left with no time to analyze the various issues of draft order. With these comments, the draft order was approved as it was submitted by the A.O. Therefore in said context, it was held by the Hon'ble Mumbai ITAT that the Addl. CIT had not applied his mind while granting approval u/s 153D. On the contrary, in the present case, 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 documents; he has also analyzed the audited balance sheets/profit & loss account for the relevant years, i) The decision of Hon'ble Pune ITAT in the case of Akil Gulamali Somji (20 taxmann.com 380) has been rendered on different facts and circumstances. In the case of Akil Gulamali Somji, the AO while framing the assessment U/S.153C had failed to obtain the necessary approval u/s. 153D (Para-3 on page-7). However in the present case, the Addl. CIT, Range-1, Bhubaneshwar has accorded approval vide his letter bearing No.Addl. C1T/R-1/153D/2014-15/7571 dated 27.03.2015. j) Without prejudice to the above submissions, in the case of Shaw Wallace & Co. Ltd. vs. ACIT (68 ITD 148), it was held by the Hon'ble IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page8 | 16 Kolkata Tribunal that even if there happens to be some mistake/irregularity in granting approval u/s.l58BG by the CIT, same is not fatal inasmuch as the resultant block assessment order remains very much assailable in appeal before Tribunal and such approval even if laconic in some aspects, will not invalidate the assessment order (para-11 on page-7). Similar view was expressed by the Hon'ble Delhi ITAT in the case of Kailash Moudgil vs. DOT (72 ITD 97). In para-31 on page-24, it was held that provisions of section 158BC do not require the Commissioner to record his reasons in writing while approving the order of the Assessing Officer under section 158BG proviso and for that reason, the assessment order passed under section 158BC does not suffer from any infirmity. It was further held that the approval of the Commissioner without recording any reasons in writing for approving the order would not render the order of the AO void ab-initio and would not invalidate the assessment order. Assuming without admitting that some infirmity is there, it is curable under law, since the order of assessment passed under section 158BC is made appealable under section 253(1)(b) of the income tax Act in which the assessee is entitled to canvass all the points available to invalidate any part of the assessment and thus the defect, if any, existing previously would be completely cured.” 5. Reiterating the written submission, ld CIT DR submitted that in the case of Smt. Gita Rani Panda (supra), the order has been passed on different facts and circumstances and further submitted that in the case of Smt. Gita Rani Panda (supra) and Smt. Manjusmita Das (supra), the assessments were made on small amount of taxable income, whereas in the present appeals, the amount of taxable income is same as per draft order and final assessment order, therefore, the preposition rendered by ITAT in the case of Gita Rani Panda(supra) cannot be applied to the present case blindly. 6. Ld CIT DR also submitted that from the plan language of section 153D of the Act, it is clear that the AO is only required to take prior approval of Supervisory Officer (Addl. CIT/Jt. CIT) before passing of assessment order u/s.153A r.w.s 143(3)/144 of the Act and this IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page9 | 16 requirement has been fulfilled in the present case. Ld CIT DR submitted that approval under section 153D by the Supervisory Authority is merely an administrative order and no civil or penalty consequences flow from such an order against the assessee. Thus, the approval of Supervisory officer is totally distinct from the assessment order and not required to be communicated to the assessee. Hence, it is not open for the assessee to challenge the defects or deficiency in the approval. As 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. 7. Ld CIT DR also submitted that the power to determine the income vests in the Assessing Officer exercising the quasi-judicial function and it is in violation or principle of quasi judicial function that can render the assessment order invalid but any defects and obtaining grant of approval under section 153D of the Act cannot be alleged as in violation of principles of natural justice. Ld CIT DR also submitted that the judgment of ITAT Mumbai in the case of Smt. Shreelekha Damani, 88 taqxmann.com 383 is distinguishable on facts and circumstances as in that case, the Addl. CIT, Range-7 had asked the AO to submit the draft orders for approval u/s.153D on or before 24.12.2010 but the same were submitted on31.12.2010 thereby the ld Addl. CIT was left with no time to analyse the various issues of draft orde4rs. In these circumstances, it was held that the Addl. CIT did IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page10 | 16 not apply his mind while granting approval u/s.153D. In the present case, the Addl. CIT, has duly applied his mind and has gone through the records, analysed the statements made during the search as well as seized documents and after considering the audited balance sheet for the relevant assessment years, granted the approval. Therefore, the contentions of ld AR are not tenable and the order passed in the case of Smt. Gita Rani Panda (supra) cannot be applied blindly to the present case having different set of facts and circumstances. 8. Placing rejoinder to above, ld AR submitted that it is not an allegation of the assessee he was not allowed due opportunity of hearing by the Addl. CIT while granting approval u/s.153D of the Act. He submitted that it is also not the contention of the assessee that he was not communicated approval order but the case of assessee is that after issuance of notice u/s.142(1) of the Act on 30.3.2015, the AO did not obtain approval from ld Addl. CIT as per mandate of section 153D of the Act by submitting final assessment order alongwith relevant assessment records, thus, there was not valid approval as per mandate of section 153D of the Act. Therefore, the contentions of ld CIT DR are misplaced and not sustainable. 9. Ld AR pointed out that by order dated 27.3.2015, ld Addl. CIT has considered total 28 nos. of cases, which are listed at page 1 & 2 of the said order at Sl. No.1 to 7, the case of Smt. Manjusmita Dash have been listed at 15-21, the case of Smt. Gita Rani Panda(supra) have been listed and, IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page11 | 16 thereafter at Sl. No.22 to 28, the case of the block period from assessment year 2007-08 to 2013-14 in the case of the assessee have been listed, which includes the assessment years 2011-12 & 2012-13 listed at Sl. No.26 and 27. Therefore, the propositions rendered by ITAT, Cuttack in the case of Gita Rani Panda (supra) is squarely applicable to the present case. Merely because the amount of total taxable income is different, which ought to be different in different cases on different assessment years, on different assessee, the categorical finding of the Tribunal cannot be ignored and kept aside, therefore, the contentions of ld CIT DR are not justified and stands on legal footing and thus, it has to be held that the issue is squarely covered by the order of the Tribunal in the case of Gita Rani Panda (supra). 10. On being asked by the Bench, ld CIT DR, in all fairness, candidly accepted that no appeal has been filed by the department before the Hon’ble Jurisdictional High Court of Orissa against the order of the Tribunal in the case of Smt. Gita Rani Panda (supra). Therefore, we safely presume that the department has accepted the order of the Tribunal in the case of Smt. Gita Rani Panda (supra) without any further dispute or agitation before the Hon’ble High Court. 11. On careful consideration of the rival submissions, we find in the present case, the Assessing Officer requested the Addl. CIT, Range-1, Bhubaneswar to grant approval under section 153D of the Act vide letter dated 25.3.2015, which was received by Addl. CIT on 26.3.2015. In IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page12 | 16 response to same, Addl. CIT, Range-1 vide order dated 27.3.2015 stated that “the draft orders having being submitted only 5 days before final orders are getting barred by limitation, I have no other option but to accord the approval to the same, as the approval is statutorily required u/s.153D of the Act, even though there is no time left for undersigned to ensure that all the points raised in the appraisal report, the appellate proceedings, audit inspection, etc are duly taken into account, and the enquiries and investigations that are required to be made are actually made before finalization of the assessment orders”. From the above observations of the ld Addl. CIT, it is clear that he had some doubts about the draft assessment and he also indicated some defects and deficiencies in the draft assessment order of almost all assessment orders but as there was time left before the final orders getting time barred, he has granted approval under section 153D of the Act. Accordingly, the Supervisory Authority has himself admitted that for the reasons stated by him, he could not apply his mind and has accorded the approval mechanically to meet the requirements of law as the requirement was merely a formality. The Supervisory Authority although has given approval u/s.153D of the Act but at the same time, he also pointed out and observed that the Assessing Officer will pass the assessment order only after making verification, necessary enquiries and investigations in the light of the suggestions made by him in the order dated 27.3.2015. It is also noted that notice u/s.142(1) of the Act was IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page13 | 16 issued by the AO on 30.3.2015, in pursuant to the direction of the Add.CIT in the order dated 27.3.2015, copy of which is placed in paper book at pages 1 to 3, to explain/reconcile/justify in the respective assessment years as under: 2011-12 Please reconcile the investments shown at Rs.3,26,68,955/- as on 31.3.2011 with those as on 31.3.2010 at Rs.4,60,00,000/- and explain why disallowance u/s.14A should not be made in the facts and circumstances of the case. Please justify the reasons of abrupt increase of the total sales of 14.76% in comparison to that in the previous year and abrupt increase in the claim of expenses viz. carriage inwards, other manufacturing expenses & selling and distribution expenses. 2012-13 Please justify through documentary evidence the abrupt increase in expenses under the heads commission, salary & wages, staff welfare, other manufacturing expenses, misc. expenses and directors remuneration.” However, immediately after one day i.e. on 31.3.2015, the Assessing Officer has passed the assessment order. From the above, it is crystal clear that the Assessing Officer has not taken due approval from the Supervisory Authority, after issuance of notice u/s.142(1) of the Act on 30.3.2015 as per mandate of section 153D of the Act, about final assessment orders prepared by him after issuing said notice, from ld Addl. CIT or competent authority. IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page14 | 16 12. The language used by the legislature in section 153D provides as under: “153D. No order of assessment or reassessment shall be passed by an Assessing Officer below the rank of Joint Commissioner in respect of each assessment year referred to in clause (b) of sub-section (1) of section 153A or the assessment year referred to in clause (b) of sub-section (1) of section 153B, except with the prior approval of the Joint Commissioner: Provided that nothing contained in this section shall apply where the assessment or reassessment order, as the case may be, is required to be passed by the Assessing Officer with the prior approval of the Principal Commissioner or Commissioner under sub-section (12)of section 144BA.” 13. On careful and vigilant reading of provisions of section 153D of the Act, it is clear that the Assessing officer is required to obtain prior approval of the competent authority/JCIT/Addl.CIT before passing the order u/s.153A of the Act. In our humble understanding, the intention of the legislature is that the final draft assessment order would be placed before the competent authority/JCIT/Addl. CIT for granting approval u/s.153D of the Act and after obtaining such approval, the AO would be eligible for passing such assessment orders u/s.153A or 153C r.w section 143(3)/144 of the Act, as the case may be, complying with the requirement of section 153D of the Act. 14. We observe that in the same order dated 27.3.2015, the Addl. CIT,Range-1, Bhubaneswar had granted approval in the case of Smt. Gita Rani Panda and the Assessing Officer had passed assessment order on IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page15 | 16 31.3.2015 and on appeal, the Tribunal held that the impugned order of the assessment is void and bad in law as prior draft approval u/s.153D of the Act after the notice issued u/s.142(1) of the Act to the assessee. Ld CIT DR submitted that no appeal has been filed by the department against the order of the Tribunal in the case of Smt. Gita Rani Panda and, therefore, the order of the Tribunal has attained finality as the department has accepted the same. Hence, we are of the considered view that the issue at hand is squarely covered in favour of the assessee by the decision of the ITAT in the case of Smt. Gita Rani Panda (supra). Hence, we cancel the assessment order and allow Ground No.1 of the assessee. 15. In view of our findings in Ground No.1 of the assessee, other grounds taken by the assessee on merits of the case has become academic and hence, is not adjudicated. 16. Since the facts in the assessment year 2011-12 are identical to the facts of A.Y. 2012-13, our decision would apply mutatis-mutandis and allow the appeal for the assessment year 2012-13. 17. In the result, appeals of the assessee for both the assessment years are allowed. Order pronounced u/s. 34(4) of I.T.A.T.Rules, 1963 on 23 /12/2021. Sd/- sd/- (Manish Borad) (Chandra Mohan Garg) ACCOUNTANT MEMBER JUDICIAL MEMBER Cuttack; Dated 23 /12/2021 IT(ss)A Nos.67 & 68/CTK/2019 Assessment Years : 2011-12 & 2012-13 Page16 | 16 B.K.Parida, SPS (OS) Copy of the Order forwarded to : By order Sr.Pvt.secretary ITAT, Cuttack 1. The Appellant : Neelachal Carbo Metalicks Pvt Ltd., Plot No.N-4/158, IRC Village, Nayapali, Bhubaneswar 2. The Respondent. Asst.Commissioner of Income Tax, Corporate Circle-1(2), Bhubaneswar 3. The CIT(A)-1, Bhubaneswar 4. Pr.CIT-1, Bhubaneswar 5. DR, ITAT, Cuttack 6. Guard file. //True Copy//