Income Tax Appellate Tribunal - Delhi
Dcit, Central Circle-25, New Delhi vs Himanshu Verma, New Delhi on 9 April, 2025
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH 'B', NEW DELHI
Before Sh. Satbeer Singh Godara, Judicial Member
&
Sh. M. Balaganesh, Accountant Member
ITA No. 1236/Del./2022 : Asstt. Year : 2012-13
ITA No. 1237/Del./2022 : Asstt. Year : 2013-14
ITA No. 1238/Del./2022 : Asstt. Year : 2014-15
ITA No. 1239/Del./2022 : Asstt. Year : 2015-16
ITA No. 1240/Del./2022 : Asstt. Year : 2016-17
ITA No. 1241/Del./2022 : Asstt. Year : 2017-18
ITA No. 1596/Del./2022 : Asstt. Year : 2018-19
Sh. Himanshu Verma, Vs ACIT,
H-104, Friends Apartments, I.P. Central Circle-29,
Extension, Patparganj, New Delhi-110055
New Delhi-110092
(APPELLANT) (RESPONDENT)
PAN No. AFBPV8131K
ITA No. 1351/Del./2022 : Asstt. Year : 2012-13
ITA No. 1352/Del./2022 : Asstt. Year : 2013-14
ITA No. 1353/Del./2022 : Asstt. Year : 2014-15
ITA No. 1354/Del./2022 : Asstt. Year : 2015-16
ITA No. 1355/Del./2022 : Asstt. Year : 2016-17
ITA No. 1356/Del./2022 : Asstt. Year : 2017-18
ITA No. 1956/Del./2022 : Asstt. Year : 2018-19
ACIT, Vs Sh. Himanshu Verma,
Central Circle-29, H-104, Friends Apartments, I.P.
New Delhi-110055 Extension, Patparganj,
New Delhi-110092
(APPELLANT) (RESPONDENT)
PAN No. AFBPV8131K
Assessee by: Sh. Sudesh Garg, Adv. &
Sh. Prince Bansal, CA
Revenue by: Sh. Surender Pal Singh, CIT-DR
Date of Hearing: 09.04.2025 Date of Pronouncement: 29.04.2025
2 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022
Himanshu Verma
ORDER
Per Bench:
The instant batch of fourteen appeals pertains to the single assessee herein namely, Himanshu Verma. All other relevant details thereof stand tabulated as under:
Sl. A.Y. ITA Nos . Appellant Respon dent Order passed Proceedi ngs No. against u/s 1-2 2012-13 1236/Del/2022 Himanshu ACIT CIT(A)-30, New153A Verma Delhi 1351/Del/2022 ACIT Himanshu Appeal N o.
Verma 10406/2019-20
Dated 28.03.2022
3-4 2013-14 1237/Del/2022 Himanshu ACIT CIT(A)-30, New153A
Verma Delhi
1352/Del/2022 ACIT Himanshu Appeal N o.
Verma 10409/2019-20
Dated 31.03.2022
5-6 2014-15 1238/Del/2022 Himanshu ACIT CIT(A)-30, New153A
Verma Delhi
1353/Del/2022 ACIT Himanshu Appeal N o.
Verma 10411/2019-20
Dated 31.03.2022
7-8 2015-16 1239/Del/2022 Himanshu ACIT CIT(A)-30, New153A
Verma Delhi
1354/Del/2022 ACIT Himanshu Appeal N o.
Verma 10420/2019-20
Dated 31.03.2022
9-10 2016-17 1240/D el/2022 Himanshu ACIT CIT(A)-30, New153A
Verma Delhi
ACIT Himanshu Appeal N o.
1355/Del/2022 Verma 10425/2019-20
Dated 31.03.2022
11-12 2017-18 1241/Del/2022 Himanshu ACIT CIT(A)-30, New153A
Verma Delhi
DCIT Himanshu Appeal N o.
1356/Del/2022 Verma 10432/2019-20
Dated 28.03.2022
13-14 2018-19 1596/Del/2022 Himanshu ACIT CIT(A)-30, New143(3)
Verma Delhi
1956/Del/2022 DCIT Himanshu Appeal N o.
Verma 10436/2019-20
Dated 09.06.2022
2. Heard both the p arties at length. Case files peruse d.
3. It emerges at the outset that there arises the first and foremost issue of validity of all the impugned assessments 3 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma framed u/s 143(3) r.w.s. 153 A o f the Act; dated 23.12.2019, by the Assessing Officer, in furtherance to searc h in que stio n herein dated 29.03.2012 for want of a valid sectio n 153D approval. This is for the precise reason that learned counsel representing the assessee has filed before us a copy of the learned Asses sing Officer proposal to the prescribed authority followed by the latter's approval dated 23.12.2019, rig ht from assessment year s 2012-13 to 2018-19, as the case may be.
This being the clinching fact, we note that the tribunal's rece nt co-ordinate bench order dated 24.02.2025 in DCIT Vs. Empire Realtech Pvt. Ltd., IT A N o. 428 8/Del/2017 as held such a n assessment itself has not sustainable in law for want of valid sec tion 153 D approval as under:
"5 . It is i n t his factual ba ckdr op tha t the l earned C IT- DR co ul d hardly dispute the clinc hi ng fact t hat the a ss essee's cross obje ction r aises the foregoi ng legal iss ue o f validi ty of the impugned assess ment fra med by t he Assessi ng O ffi cer dat ed 18.02.2015 itself; for want of a v alid secti on 153D a pprova l i n f urther a nce t o the searc h i n question carri ed out by the de partmental a uthorities on 23.11.2012. We ma ke it clea r that the learned As sessi ng Officer's s ec tion 1 53D approv al s ought dated 12.02.2015 forms pa rt of t he records before us whic h is found t o be a c ommon one for ass ess ment years 2009-10, 2010-11 a nd 2012-13, which stood gra nted on 16.02.2015.
6. Fa ced wit h this situati on, we i nvited R ev enue's a ttenti on to vario us rec ent decis ions t hat s uc h a n a ss essment ba sed on a co mmon s ection 153D a pproval is not s ustai nable i n la w i n light of lea rned c o-ordinate bench's order i n Aditya S harma Vs. ACIT, ITA Nos . 36 16 to 3621/D el/2019 vide order da ted 15.01.2025 holdi ng a s unde r:
4 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma "3 . We next note that ther e a rises the firs t and foremost iss ue of validity of a ll the impugned as sessments fra med u/s 143(3) r.w.s. 153A o f the A ct ;
dat ed 02.03.2017, i n conse quence to the s earc h ac tion herei n dat ed 15.0 2.2014, on the ground that the learned prescribed authority ha d not accor ded a valid approv al thereto u/s 153D of the Act. T he R ev enue could hardly dispute that the i nstant legal ground sought to be rai sed at t he assess ee's behest goes to the root o f the matter and there for e, we quote National Thermal Power Co . L td. vs . CIT (1998) 2 29 ITR 383 (S C); as c ons idered in Allcargo Global L ogis tics Ltd. vs. DCIT (2012) 137 ITD 287 (SB ) (Mum), that s uch a n a ddi tional gro und c ould ve ry well be allowe d to be raised in s ectio n 254(1) proc eedi ngs, i n order t o det ermi ne the corr ect ta x liability of an assess ee pr ovided all t he releva nt fac ts form part of the r eco rds.
4. It is i n t his fac tual bac kdrop that we admit t he as sess ee's insta nt le gal gr ound and note wi th t he a ble as sista nce c omi ng from both the pa rties that the learned Asses si ng Officer had s ought the prescri bed a uthority's appr ov al on 27.02.2017 whic h sto od gra nted on 02.03.2017. The cl inchi ng fact whic h fr om pa ge 10 i n t he as sess ee's pa per book is tha t the le arned As sess ing Officer her ei n had i nfact s ought a c ommon appr oval for all thes e ass ess ment years fro m 2008-09 to 2013-14 whic h stood gra nted, a nd the refore, we quote P CIT Vs. Shiv K umar Nay y ar (2024) 163 ta xmann.c om 9 (D el.), PC IT Vs. MDLR Hotels (P) Ltd. (2024) 166 t axmann.c o m 327 (Del.) and ACIT vs. Seraj uddi n and Co . (2024) 1 63 ta xmann.com 118 (SC), to conclude t hat s uc h a combi ned sec tion 153D appr oval indeed viti ates the entire as sess ment i ts elf. We draw str ong t her efrom to quas h all the imp ugned ass ess ments framed herei n i n as sess ee's cas e i n a ss essme nt y ears 2008-09 to 2013-14 in ver y terms."
7. Le arned CI T-DR has filed a copy of Revenue's written submissions as under:
"S ub: Writt en S ubmission i n the above c as e on the legal ground of validity of S ec tion 153D approval granted by the JCI T/Addl. CIT - r eg. In the abov e c as e, it is humbly submitt ed t hat i n additi on t o t he oral arguments submitted by the 5 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma undersigned, t he followi ng le gal is sues /le gal submis si ons , r el eva nt to s ecti on 1 53D a pprova l and two vital Judgments of the Hon. Supreme Cour t, on the l egality and l e gal r equi rements of t he Admi nistrative Orders of gover nment or exec utiv e a ut horities , may k indly be considered:-
1. The w ord/phrase - "written approval " is no t menti oned i n the sec tion 153D of t he Inc ome ta x Ac t, 1961. The o nl y phra se used is "the pri or approval ".
Ther efore, t he co ntents of the wri tten order of the JC IT/Addl. C IT are le gally not r equir ed t o be exami ned or c onsidered, for meeting the legal or fact ual r equireme nts of t he a pproval under s ec tion 153D.
2. The or der by the Addl . CIT/JCIT under s ec tion 153D i s an A dministrative Or der, by the hi ghe r a ut hority i.e. JCIT/Addl. CIT to t he lowe r a uthority, i.e. AO. Suc h an ord er is not a quas i -j udicia l o r judicial orde r. Ther efor e, the l egal requirements and benchmarks r egardi ng the principl es of "the applicatio n of mi nd" a nd "t he speaking order" a re not as stric t or hi gh, as they are i n t he c as e of quasi - judicial or j udicial order.
3. In respect of t he l egal requirem ents and the benchmarks regar ding the administr ativ e orders, the Ho n. S uprem e C ourt has given ma ny c omprehe nsiv e judgements, w hic h a re encl osed a nd t he r eleva nt porti ons /parts are quoted as under:-
(i) Decis ion o f Hon'ble S upr eme Court i n t he case of Munic ipal C ouncil Neemuch vs Mahadeo R eal Estate, dat ed 17 Sep tember, 2019, A IR 2019 SC 4517, 2019 (10) SCC 738.
". .... 14. In the pr esent c as e, t he l ear ned Judges of the Division B ench have arrived a t a finding tha t suc h a sa nction w as, i n fac t, gra nted. W e will exami ne the c or rectness of the said fi nding of fac t a t a subsequent stage. Howe ver, bef ore d oi ng tha t, we prop ose to e xa mine the s cope of t he powers of the High Cour t of judicial review of an a dmi nist rative ac tion. Though, the re ar e a catena of judgments of this C ourt on the sa id issue, the law l aid down by this Court i n the c ase of Tata Cellul ar Vs. Union of I ndia 6 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma reported i n (1994) 6 SCC 651 lays down the ba sic pri nciples whi ch still hold t he fi eld. Par a graph 77 of the said judgment reads thus:
"77. The duty of the c ourt is to c onfi ne its elf to the questi on of legality. Its conc ern should be:-
1. Whether a decision-ma ki ng a uthority exc eede d its powers?
2. Committed an err or o f law,
3. committed a breac h of the rul es of na tur al jus tice,
4. reac hed a decision whi ch no rea sona bl e tribunal woul d have reac hed or,
5. abuse d its powers.
Ther efore, it is no t for the court to det ermi ne whether a par tic ula r policy or pa rtic ul ar deci sion taken in the fulfillme nt of that policy is fair. It is only concer ned with the ma nne r i n whic h t hose dec isi ons hav e been ta ken. The ext ent of the duty to act fairly wi ll var y from cas e to c as e. Shortly put, the grounds upon whic h an adminis tra tiv e ac tion i s subjec t to c ontrol by judicial revi ew can be cla ssifie d as under:-
(i) Illegal ity: This mea ns the decisi on-maker mus t understand c orrec tly the la w that regula tes his decisi on-maki ng power a nd must gi ve effec t to it.
(ii) Irrationality, name ly, unrea sona blenes s.
(iii) Procedur al impropriet y.
The above are o nl y the broa d grounds but it does no t rule out additi on of fur ther grounds in c ours e of time. As a matt er of fac t, i n R. V. S ec reta ry o f State for the Ho me D epartment, ex B ri nd, (1991) 1 AC 696, Lord Diplock refers s peci fic ally to one devel opment, namely , t he pos sible r eco gni tion of the pri nc iple of prop orti onality. I n all thes e c ase s t he tes t to be adopted is that the court s houl d, 'conside r whether somet hi ng ha s gone wr ong of a nat ure a nd degree whic h requires its inter vention".
15. It c ould t hus be seen t hat the sc ope of judicial r evi e w of a n admi nistr ative action is ver y limited. Unl es s the Court comes to a c onc l usion, tha t the decision maker has not unde rstood the law 7 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma correctly that r egulates his decision-ma ki ng power or when i t i s found tha t t he dec ision of the dec ision ma ker is vitiated by irra tionality a nd that too on the pri nciple of "Wednesbury Unrea sona blenes s" or unl ess it is found that there has bee n a procedural impropriety in the decision-ma ki ng pr ocess , it would not be permissible for the Hi gh C ourt to i nt erfere i n the decisi on maki ng process . It is also equally wel l settled, tha t it is not permissible for t he C ourt t o exami ne the validity of the decis ion but this C ourt c a n exami ne only the correctnes s of the deci sio n ma ki ng proc ess .
16. This C ourt recentl y i n the case of Wes t Be ngal Central School S ervice Commissio n Vs. Abdul Halim reported i n 2019 SCC OnLi ne SC 902 had agai n a n oc ca sion to consider t he sc ope of inte rferenc e under Article 226 i n an a dmi nistrative action.
31. I n exercis e of its po wer of judicial revi ew, the Court is t o s ee whether the d ecision impugned is vitiated by an a ppar ent error of law. The tes t t o det ermi ne whether a decision is vitiat ed by error apparent on the fac e of the r ecor d is whether t he err or is self-evident on t he fa ce of the rec ord or whether t he error requires ex ami natio n or argument to establis h it. If an error has to be establis hed by a proc ess of reasoni ng, on poi nts where t here ma y rea sonably be t wo opini ons, it cannot be said to be a n err or on t he fa ce o f t he rec ord, as held by t his Court in S atyanaray a n v. Ma llika rj una reported i n A IR 1960 SC 137. I f the provi sion of a stat utory r ul e is rea sonably c apable of t wo or more construc ti ons a nd one constr uction has been adopte d, t he dec ision woul d not be open to i nterfere nce by the writ C ourt. It is only a n obvious misi nterpreta tion of a r eleva nt stat utory provision, or i gnora nce or disr egard there of, or a decision f ounded on re as ons whi c h ar e clearly wrong in la w, w hich can be cor rected by t he writ Court by iss uance of writ of C ertiorari.
32. The swe ep of pow er under Arti cle 2 26 may be wide enough to quash unrea sona ble orders . I f a decis i on is so arbitra ry a nd c apricious t hat no rea sonable pers on c ould have ever arrived at it, the same is liable to be struck do wn by a writ Court. If 8 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma the decis ion ca nnot ra tionally be support ed by the mat erials on rec ord, the s ame ma y be rega rded as perv erse. Municipal Council Neemuch v s Ma hadeo Real Estat e on 17 Sept ember, 2019 India n Kano on - htt p://indianka noon.or g/doc/83894917/ 6.
33. Ho wever , the power of the Court to exami ne the reasonabl enes s of an order of t he a uthoriti es does not enabl e t he Court to look i nto the sufficiency of the grounds in support of a decision to exami ne the merits of the deci sion, sitti ng as if i n appeal ov er the decis i on. The tes t is not what t he C ourt c onsiders rea sonable or unr eas ona ble but a deci sion whic h the Court thi nks that no re asonable pers on c ould ha ve ta ken, whic h has led t o ma nifest injus tice. The writ Court do es not Int erf ere, because a deci sion is no t perfec t.
17. It c oul d thus be seen that a n int erfer ence by the High C ourt would be warra nted only when the dec ision impugned is vitia ted by an appa rent error of law, i .e., when the error is appare nt on the fac e of the r eco rd a nd is self evi dent . The Hi gh C ourt would be empowered t o exercise the powe rs when i t fi nds that the decisi on impugned is so arbi tra ry and capric ious tha t no reasona bl e person would ha ve ever ar rived a t. It has bee n reiterated t hat the test is not what the court c onsiders reas ona ble or unreas ona ble but a decis i on whic h the c ourt thi nks that no reas onabl e person c oul d have ta ken. Not only this but s uc h a decis i on must have led to ma nifest i nj us tice ... ........................ ........................ .................
25. In the present cas e, we find t hat the Commis si o ner had acte d ri ghtly as a c us todian of t he public pr opert y by poi nti ng o ut the a nomalies i n the prop osal of the Municipal C ouncil to the Stat e Gov ernment a nd the State G ov ernm ent has also res ponded i n the right perspective by authorizi ng the Commis si o ner t o ta ke an appr opriate deci sion. We ar e of t he c ons idered v iew t hat, bot h, the Commissioner as well as the State G overnme nt, have acted i n the lar ger public i nter est , We are unabl e to appr eciate as to how the Hi gh Court, i n t he pres ent matt er, c oul d hav e come to a concl usi on that it was empowered t o exerci se the power of judic ial r eview to prevent 9 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma arbit rariness or favoritism o n the part of the S tat e a ut horities , a s ha s been observed by it in para gr aph
13. We a re als o una ble t o appreci at e t he fi ndi ng of the Hi gh C ourt i n par a 17 wherei n it has obs erv ed tha t the impugned decision of the a uthoriti es a r e found not to be i n the public i nterest . We as k t he questi on to us, as to whet her directing re -tendering by i nviti ng fresh tenders a ft er giv i ng wide publ icity a t the Na tional l evel s o as t o o btai n the bes t price for the public property, would be i n the public interes t or as to whether a wardi ng c ontract to a bidder i n the te nder process w here it is found that there was no adequate i nt erest or a s to whether publi city a nd al s o a poss ibility o f there bei ng a car tel of bidders , would be I n the public int erest. We a re of the consider ed view tha t t he dec ision o f the Co mmissioner whic h i s set as ide by t he High Court is undoubte dly i n larger public Int eres t, whic h wo ul d ens ur e that the Munici pa l Council ear ns a hi gher r evenue by enlar ging the s cope of the c ompetition. By no stretch of ima gi na tion, t he decis i on of the S ta t e Government or t he Commis si o ner co uld be termed as illegal, impr oper, unreasona ble or irrati ona l, whic h para meters o nly could have permitted t he Hi gh Court to i nt er fere. Int erferenc e by the High C ourt w hen none of s uc h parameters exist, in our vie w, was tot ally improper. On t he co ntrar y, we fi nd tha t it is the Hi gh Court, whic h ha s failed to take int o co ns iderati on r eleva nt mat erial.
26. In the r es ult, the i mpugned Orders are no t sustai nabl e i n law. The appea ls are, ac c ordi ngl y, allowed a nd the Impugned or ders dated 31.08.2017 a nd 05.07.2018 are quas hed a nd s et aside. The petition of r esponde nt N o. 1 sta nds di smis sed ..........."
(ii) Dec ision of Hon'ble S upreme Co urt i n the cas e of West Be ngal C entr al School S ervice ... vs A bdul H alim dat ed 24 July , 2019, AIR 2019 SC 4504, AIRONLIN E 2019 SC 2188 AIR 2020 SC (C IV) 82.
"......... ...... .....31. The swe ep of power under A rticle 226 may be wide enough t o quash unrea s ona ble orders. If a decision is so a rbitra ry a nd ca pric ious tha t no rea sona ble pers on c ould ha ve ever a rriv ed a t it, the s ame is lia bl e to be s truc k down by a writ 10 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma Court. If the decision ca nnot ra tionally be s upport ed by the materials on rec ord, t he sa me ma y be rega rded as per vers e.
32. Ho wever , the power of the Court to exami ne the reasonabl enes s of an order of t he a uthoriti es does not enabl e t he Court to lo ok i nto the sufficienc y of the grounds in support of a decision to exami ne the merits of the deci sion, sitti ng as if i n appeal ov er the decis i on. The tes t is not what t he C ourt c onsiders rea sonable or unr eas ona ble but a deci sion whic h the Court thi nks that no re asonable pers on c ould ha ve ta ken, whic h has led t o ma nifest injus tice. The writ Court does not interfere, bec aus e a decis ion is not perfec t.
33. In entertai ning a nd al lowi ng the wri t pe tition, the Hi gh Cour t has lost sight of the limits of i ts extraor di nar y power of j udicial review and has in fac t sat i n a ppeal ov er the decision o f the res pondent No.
2................"
8. We hav e given our thoughtful c onside ration t o the as sess ee's pl eadings a nd R evenue's vehement contentions as well as it's written submissi on. We find no r eas on to uphold the validity of the impugned as sessment as it has come on recor d tha t the s ame has bee n fra med in furthe ranc e t o a co mmon s ecti on 15 3D appr ov al alr eady held a s not s ust ainabl e i n law. We order acc ordi ngly ."
4. The lear ned CIT- DR at this stage seeks to distinguish the above proposal in light of the tribunal's yet ano ther learned co-
ordinate bench order dated 23 .01.2025 in Usha Satis h Salvi Vs. AC IT, ITA No .4239/Del/2023, de ciding the very is sue in the department' s favour as follows:
4. Firs tly, we t ake up the ap peal f or AY 2012-13. The grounds rais ed i n app eal are reproduced as und er:
On the fac ts a nd i n Fac t and i n circ umstanc es The Ld. CIT(A) er red in c onfir ming Rs . 6,45,572/- as unex plained casti expens es . U/s 69C of the Inc ome Tax Act , 1961 and t he rea sons a ss igned by hi m, for doi ng so are wrong a nd c ontra ry to the f acts a nd 11 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma circumstances of t he c ase, provisions of Inc ome Ta x Act, 1961 and rul es made the re under.
4.1 Before us , the ass esse e al so raise d following additi onal grounds :
On the Facts and in the circ ums ta nc es of the ca se and in la w the a rriv a l in the O n the Fac ts a nd i n t he circumstances of the case and i n l aw the approval granted under s ection 153D of T he Act is no arriv al in the ey es of law as the s ame has been ac cord ed on presumption and without applica tion of mind and consequently the assessment order u/s 153C of t he Act is null and Void as approv al granted under s ecti on 153D is mechanical in na tur e a nd without a pplica ti on of Mi nd.
4.2 Ide ntic al gr ounds a nd additi onal grounds ha ve been rais ed i n the remai ni ng two appeals exc ept c hange of amo unt gro unds and a dditi onal grounds have been rai sed in exc ept c hange of amount.
4.3 We have hea rd riv al submission o f t he par ties on the issue of admissibi li ty of t he additional e ha ve heard r i val submissi on of the parties on the issue of gr ounds rai s ed are e hav e he ard rival s ubmission of t he pa rti es on t he issue of additi ona l gr ounds. As the grounds rais ed legal in nature a nd not requiring i nvestigati on of fres h fa cts, same are admitted for adj udicati on in view of t he s ettl ed pri nciple i n the legal i n nature and not r equiring inves tigati on of fres h fa cts, sa me are admitt ed for adj udication i n vi ew of the s ettl ed pri nciple in t he NTPC Ltd. 229 ITR 283 (SC).
5. Before us , the l earned c ounsel for the ass ess ee filed a pa p er book contai ni ng pa ges 1 to 46.
6. In the additi onal gr ound, the assessee has c halle nged the validi ty of the ass essme nt under secti on 153C of the validity of the ass essm ent under section 153C of t he to the assess ee the approv al gra nted by t he c ompetent aut hority t o the ass esse e the approval gra nted by t he compet ent a uthori ty under secti on 153D of t he wi tho ut applicatio n of the validity of the assess ment under sec tion 153C of the Act. According to the a ss ess ee t he appr ov al grante d by the competent a uthorit y as been ac corded on pres umption, mecha nical in nature, consequently the assessment order under s ec tion 153C is nul l and und er s ection 153D of the Act ha s been ac cor ded 12 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma on pres umpti on, wi thout application of the mind, whic h is mec ha nic al i n na ture, cons equently t he ass ess me nt or der under secti on 153C is null a nd c ons equently t he as sessment order under s ection 153C is null a nd void.
6.1 The s ubmissions i n support of t he additio nal ground made by t he learned c ouns el f or the as sess ee a re summarized as under:
(i) The lett er s eeking approval was submitted to the A The l et ter seeki ng C ommissioner of Inc ome 26/12/2017, approv al was s ubmitted to the Addi tional tax i.e. t he appr oving aut hority on whic h is at t he fag end o f t he expi ry of limita tion of the ass es sm ent. The Ld A dditi onal Co mmissi oner has a pproved t he as sessment on same dat e i.e. 26/12/2017, whic h shows that the approval has been without goi ng thr ough r eco rds.
(ii) Only t he dra ft a ss essme nt orde r, wi thout as sessment recor d a nd seized material or apprais al report was s ent t o the approving a uthority wi th t he letter for o btai ning the a pproval . Therefore, t he appr ovi ng a uthori ty has gra nted appr ov al wi tho ut exami ni ng either the as sessment r ecord or the s eiz ed mat erial.
(iii ) A c ommon and c ons olida ted approval has been granted for AY 2 010-11 to 2015-16 and 2016 and there is no y ear was reas oni ng in the said a ppr ova l. The approval has t o be gra nt ed s eparat ely for eac h as sessment y ear.
(iv ) The approv al gra nted was not absolute.
(v ) The approval i s gene ri c a nd listless and a cc orded in a blanke t manner wit hout a ny reference to any issue in res pect of a ny of the ass essme nt year .
(vi ) The appr oval was granted i n a mec ha nic al and hurried manner without mentioni ng the r eas ons and without a pplic ation of mi nd. The a pprovi ng authority a ny thi ng i n the approval me mo toward t he proc ess of derivi ng sa tis fac tion s o as to exhi bit his appli cati on of mind. The approving authority has not objec tiv ely ev al uated the draf t as sessment order wit h due applicatio n of the mind on t he iss ue contai ned in suc h order s o as t o derive its c onclusiv e s atisfacti on that the propos ed act ion of the Assessing Of fi cer i s i n conformity with the subsis ting law.
13 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma 6.2 In support of above c ontenti ons the l ea r ned c ouns el relie d on v arious decisi ons o f the coordi na te benc hes of the Tribunal and Ho n'ble Hi gh Court's as foll ows :
(i) Decision da ted 06/06/2024 of Del hi benc h of the Tribunal i n t he cas e of Shri Guvinder Si ngh D uggal in ITA No. 860 to 863/D el /2021 for AY 2012-13 to 2018-19.
(ii) Decision dated 29/04/2024 of Del hi B enc h of Tri buna l i n the c ase of MDLR Airline (P) Ltd in ITA No. 1420 & 1421/Del /2023 for AY 2007-08 a nd 2008-09.
(iii ) Decision of Hon'ble Alla habad Hi gh C ourt i n the cas e of PCl T vs Sapna Gupta i n ITA No. 88 of 2022.
(iv ) Decision of Ho n'ble Del hi Hi gh Co urt i n the case of PC IT vs S hi v Kumar Nayyar in ITA 285/2024 & CM Appeal 28994/2024 (v ) Decis ion of Mumbai Bench of Tri bunal i n t he case of Arch Phamalabs Ltd i n ITA N o. 6656/Mum/2017 for AY 2011-12 a nd other appeals.
(vi ) Decis ion of Ho n 'ble D el hi High Co urt in the case of PC IT Vs M/s MDLR Hoteles P Ltd i n ITA 593/2023 (vi i) Decision dated 24/04/2024 of Del hi B enc h of Tri buna l in t he ca se o f V eena Singh in ITA No. 294 & 295/Del /2022 for AY 2016-17 a nd 2017-18
7. On the c ontrary, t he Ld. DR s ubmitted that al l t he additi onal grounds hav e been raised merely on the ba sis of the presumpti ons and suspicio n tha t the l ea r ned Additional Commi ssioner of Inc ome-t ax i.e. approving aut hority had not gone thr ough t he seiz ed mat erial and as sessment records leadi ng to allega ti on of non- applicatio n of the mind by t he a pproving a uthority . The lear ned DR submitted tha t afte r c ollecti ng all the mat erial from the searc h premises, eac h and every mat erial is being analysed fro m the a ngl e of poss ible tax ev asio n a nd an 'appraisal repo rt' is prepa red by the Inc ome-t ax authority who conduc ts the s ea rc h ac tion. The learned DR further submitted t ha t a s per t he proc edur e presc ribed, a copy of t he said apprais al report is se nt to the conc er ned Asse ssing Offic er, co ncer ned Additional Co mmissioner of Inc ome-tax (i.e. t he appr ovi ng aut hority) and the conc erned Co mmissioner or Pri nc ipal Commiss ioner of Income-tax. Ac cordi ngly, he submitt ed that a ppr aisal report of the cas e contai ning 14 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma analysis of entire seized mat erial relat ed to case was alre ady a vailable with t he a ppro ving authority. The lear ned DR filed affidavi ts from the appr oving a utho ri ty as well as from the Assessi ng Officer who pass ed t he as sessment order s, i n s upport of t he c ontention tha t as sessment or ders were a pprove d afte r due applicati on of mind. The Asses s ing officer has depos ed that i n t he instant case , dis cuss ion on va ri ous Issue s between him and approv i ng aut hority happened regularly bas ed on the appraisal repor ts and seized/impounded ma terials . F or rea dy r eference, cont ent of the af fidavit filed by t he then Asses si ng Officer i s re produced as under:
"I, Pawa n B hatti , Jt. Commissione r of Inc ome Tax, (AU) - 1 (3), Tha ne s ta tioned at Kalyan and offic e addr ess at Mohan Plaza , 2 nd floor, Way a le Na ga r, Khadakkpada, K alya n (W)-421301, do hereby solemnly af fir m and st ated in t he cas e of Us ha S. S alvi for A. Y .
2012-13 (ITA 4239M2023), A. Y.2013-14 (ITA 42372023), A . Y. 2014-15 (ITA 42382023) as under:
It has been more than almost 7 years si nc e thes e orders wer e pas sed after due disc us sion a nd guidanc e from time to time with the approv al of Range H ead as per the Law. Gener ally, the appraisal repor ts of suc h searc h/ s urv ey cases ar e forwa rded to the c entr al charge hierarchy including the AD a nd Ra nge head a nd in suc h ty pe of cas es, a s per Law, a pprova l for pa ssi ng the as sessment orders a re to be given by the range head and so R ange head has to a pply his /her mi nd and has to give s uffi cient time. Si nce i n suc h t ype of cases, r egula r disc ussio n betwe en the ra nge hea d and AO happe ned regula rly whe never needed. Apprais al report or other c ommunicati on with the i nves tiga ti on wi ng of t he depar tment a nd sei zed/impo unded mat erials explored and discus sed from time to time a nd thereaft er a ssessm ent order fi nalised aft er appr ov al from the range hea d. I n this cas e als o, s uc h ty pe of disc ussi on happened regul arl y ba sed o n t he appraisal reports a nd s eized/impounded materia ls as per the Law.
Sinc e the offic es of the ra nge hea d and the as sessi ng offic er (A O) wer e at the same flo or i.e. 19th fl oor i n the Ai r India Building the disc ussi on or meeti ngs we re called by the range head or sought by t he A O to discuss suc h cases . T he AO ha d to di scuss t he as sessment records, reply f rom the ass ess ee etc . ac ross the table w ith t he range head on t he one to one discussion bas is as such ty pe of sea rch/ s urvey c ases are s ensiti ve i n na ture. Furthermore, a pprovals ar e granted f or mor e than si ngle assess ment years i n
15 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma combi ned manner to save the res ourc es of the gov ernment and to protect the i nteres t of re venue a s deliberati ons on such ca ses ha ve already been done to conclude the a ssessment proc eedings i n holis tic and logic al c oncl usi on. I n the i ns ta nt case, s uch prac tic e was followed.
He nce, prope r and regula r disc ussi ons , a nalysis of appraisal r eport a nd seized/ i mpounded ma t erials ha ve bee n ta ken plac e to reach t he l ogic al conc l us i on to finalise t he as sessment or ders a nd i n t his way , thorough appl ication of mi nd was t here to c oncl ude the assess ment pr oce edi ngs i n the prese nt c as e along with other s uch ca ses wher e a pproval is sought.
The report has be en prepa red by recollecti ng t he mem ori es , all t he facts and events ha ppene d at tha t ti me.
I, s ol emnl y state that the contents of t his af fida vit a re tr ue t o t he b est of my k nowl edge and belief a nd that it conceals not hi ng and tha t no pa rt of it is false."
7.1 Similarly, t he a pprovi ng a uthority als o depose d that all issues i nvolv ed in the assessm ents wer e r egula rly discus sed si nce the stage of issuing no tic e for query latter to the sta ge of ma king draft a ssess ment order. The content of the affidavit filed by the then l earned Additional C ommis sioner of Income-t ax i.e. t he arriving aut hority is reproduc ed as under :
"A ffidavit i n case of Usha S . S alv i for A.Y.2012-13 (ITA 4239M2023) A. Y.2013-14 (ITA 4237M2023), A. Y.2014-15 (ITA 4238M2023) I, A nu Kris hna A ggarwal, C ommissioner of Inc ome Tax, Appeals (A U)-4 , D el hi, hav i ng Offic e addres s at R oom No . 108, D rum Shaped B uilding, IP Esta te, Delhi - 110002, do hereby solemnly affirm. and s tate i n t he case of Us ha S. Salvi for A.Y.2012-13(I TA 42392023), A.Y.2013-14 (ITA 4237M2023), A. Y.2014-15 (ITA 4238M2023) as under:
(1 ) I n s ea rch ca s e, the s earc h ma terial a nd rel eva nt rec ord is i n the possession of the As sessi ng Offic er a nd the a pproval of the Assessment order is not a one-day a ffair, it is done aft er a s eries of disc us sions with the Assessi ng Officer. The Assessi ng Of ficer and the Addl. CTT bot h exami ne t he records on re gula r basis . Therefore, t he a pprova l to the ass essment order is given a fter a numbe r of me etings are hel d a nd t he whol e c ase is understood. I have seen the r ec ords 16 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma before givi ng approval of the cas e. The rec ord is wi th the Ass es si ng Officer. H e come s wi th the rec ords f or discussion a nd af ter understa ndi ng the c onte nt of t he rec ord, approv al is given. It is not a ca se wher e appr ov al is giv en in just one day.
(2 ) The a pproval was giv en on t he s ame da y as the l ett er for a pprova l was rec eive d, does not mean tha t the cas e has been s een o nly on tha t day. The Addl.C IT and the Assessi ng officer both a re i nvolv ed in the cas e s i nce the iss ue of the notices and before sendi ng the questionnaire t o the a ss ess ee, the rec ord is exami ned by the Assessing Officer a nd the Addl .C IT bot h on a r egular basis. It ma y not be brought on t he rec ord beca use ge nerally, the prac tice of t he department is that we don't wri te order s heet of t he meeti ng wit h the Assessi ng Officer. The reas on for the same is tha t the Assessing Officer and the Addl.C IT meet a number of times ev ery day . Ther efo re, it is not a practice to write eac h a nd every m eeti ng wi th t he Assessi ng Officer i n Inco me Tax Depar tment.
(3 ) In t hi s ca se t he of fi ces of the r ange hea d and the as sessi ng of ficer were at the sa me fl oor i. e. 19th floor i n the Ai r India Building, sometimes t he discussion or m eetings wer e c alled for by the r ange head a nd sometimes meeti ngs were sought by the A O to discuss the group cas e. The meeti ng bet ween the Assessi ng Offic er a nd the Addl. C IT were hel d on a regular bas is as I ha ve alr eady sa id i n t he abo ve poi nt, As ses si ng Officer and the A ddl.CIT meet very often.
(4 ) The modificatio ns or a mendments a re sugges ted on regula r basis . The monitori ng is done on regular basis a nd at ev ery st a ge of the i nves ti ga tion a nd the exami nation of the r ecords, the s ugges tion is bei ng gi ven. Therefore , it is no t poss ible to s ubmit all the s ugges tions giv en a nd no order sheet is bei ng mai ntained for discussion and meeti ng wi th t he Assessi ng Office r. Actual ly the Addl.C IT is i nvolved in the proc es s from the start of the as ses sment proc ess . Ther efore, the c ha nges i n the assess ment order , if a ny , is a c onti nuous pr ocess . Therefore, the re is no nee d to change the dr aft ass ess ment order as t he draft assess ment or der i s being prepa red a fter a due deliberati on and disc ussion wit h the Assess i ng O fficer.
(5 ) I, the Addl. CIT i n the c as e at that time is confirmi ng tha t due application of mind was done i n the case when t he order was approved u/ s . 153D a nd 17 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma I was i nv olved i n the cas e from the day when t he c as e was a ssi gned to the c harge.
I, s ol emnl y state that the contents of t his af fida vit a re tr ue t o t he b est of my k nowl edge and belief a nd that it conceals not hi ng and that no pa rt of it is false.
7.2 The l earne d DR s ubmitt ed tha t no evidences ha ve bee n filed by t he assesse e supporting his cont enti on- of non appli cation of mind by the approving authority a nd in view of the affidav its filed by t he AO a nd approv ing aut hority deposi ng proper applica tio n of mi nd, t he contentions of ld c ouns el of the assess ee a re liable to be rej ec ted . In this r egard, conte nts of written submiss i on filed by t he ld DR i s reproduced as under :
"..........
2. With regar d to t he ground ra ised by t he a ss ess e rega rdi ng non a pplicati on of mi nd whi le gra nti ng appr ov al us 153D of the Act it i s submitted that t he Ld JC IT ha d duly a pplied her mi nd. It was onl y aft er applyi ng her mi nd tha t she had s ugges ted s ome cha nges and gav e a pprova l . As i nformed by the AD, the draft order is not available i n r ec ords but it is humbly s ubmitted that if a s eni or offic er ha s confirmed that she had sugge st ed some c ha nges t hen the sa me would have been done by AD. Affidavits hav e als o bee n filed by both officers i.e. the AO, as well as the Range head, w herei n they ha ve co nfirm ed t hat due proc ess was followed, vari ous meetings were hel d on regular basis and onl y after the Ra nge head wa s satisfi ed the approval was gra nted. This shows that the JC IT ha d applied her mi nd befor e gra nti ng appr ov al u/ s 153D.
3. In t his regard it is p erti nent to m ention t hat i n t he present case the seiz ed material cons ists of onl y 3 Annexures . Thus this is not a case wher e huge s eiz ed mat erial i s the re requi ri ng extensive disc ussi ons .
4. Regarding ass esse e's cl aim that JCIT should ha v e applied her mi nd inj udicious manner a nd then dra wn conclusi ons it is s ubmit ted tha t the JCIT i n her af fida vit has cl earl y admitted that due a pplica tion was done . The dictionar y meani ng of j udici ous s ays 's howi ng good judgement'. It is s ubmitt ed tha t if t he as sessment or der i s correct i n every wa y, s eiz ed mat erial is jus t a few documents and already discussion has b een held ma ny times in person, a s per the prac tic e i n c entral range, c onsideri ng the se nsitiv e nat ure of c as es , a simple ord er with no c omplications ca n be called judi cious . In fact, i n this case , s ome 18 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma correcti ons were s uggested by the R a nge he ad before pass i ng the order. It is als o s ubmitted tha t, i n a situati on where no additi on or del eti on or a ny correcti on to the order i s r equired or s ugges ted and the Ra nge hea d a grees wi th AO, a simpl e appr oval c an als o be said to s uffice.
5. Regarding assess ee's c ontention tha t ther e is s i ngl e appr ov al fo r all y ears it is submitted tha t differe nt appr ov al has been grant ed as all t he A Yrs are cl ea rl y menti oned. It is o nly an a pprova l on a s i ngle pa ge. In this r egard it is s ubmitted tha t i n case differ ent pa ges had been us ed f or ea ch A Y, ev en the n t he s um and subst anc e wo uld have b een sa m e.
6. Relia nce is plac ed on Hon'ble ITAT MU MBA I B ENCH "C ", MUMBA I d eci sion i n the case o f Pr atibha Pipes & Structural s L td, Dcr r, Cent. Cir . 17 & 28, Mumbai dat ed 10 -04-2019 (c opy enc losed). In tha t cas e e ven the copy of a pproval was no t ava ilable but s till the decis i on was gi ven i n favour of revenue aft er consideri ng the facts and circ umsta nc es . In that c as e als o a ffi davit of t he R a nge head was filed wherei n it was ca tegorically state d i n his a ffi davit that he had issued neces sary a pproval u/ s 153D.
8. We hav e considered the rival s ubmission of t he parties on the a dditional gr ounds rais ed by the asses s ee i.e. a ssa iling impugned asses sm ent order pas s ed on the ground that a pprova l granted by the a pproving a uthority IS mechanical ma nner and without a pplic ati on of the mind. Fo r ready r eferenc e, a copy of the said appro val granted by t he approvi ng a uthority is reproduc ed as under:
"To, DC IT-CC -4 (4) Mumbai .
Approval U/ s 153D of the I T Act for as ses sment i n the cas e of Smt Usha Satish Salvi (PAN-AQSPS6935J) for A. Ys. 2010-11 to 2015-16 & 2016-1 7 - reg.
------
Please ref er to the abo ve.
Draft : a ss essm ent orders i n the a boveme ntioned c as e u/ s 143(3) r.w.s. 153C of t he I T A ct, 1961 for A. Ys . 2010-11 t o 2015-16 a nd u/ s 143(3 ) of the I T Ac t f or A. Y. 2016-1 7 are hereby approv ed u/ s 153D of the I T Act, 1961 s ubject to the correcti ons made ther ein.
19 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma Aft er passi ng t he o rder, a copy of t he same may be submitt ed t o thi s office. "
8.1 The l earned counsel for the assessee has m ai nly contended tha t except draft as sessment orders , no mat erial was av ail able with t he a pprovi ng a uthority . He has further alleged tha t a ppr oval was gra nted on t he same date of s eeki ng s uch a ppr oval i n a c om bi ned ma nner for all the ass essment ye ar i nvolved. The appr ovi ng a uthority has merely directed for cer tain modificati on in the fi nal order but not spec ifi ed said modificati on i n t he appr oval order. B ut we fi nd that except such all egati on i n support of t he additi onal ground , no docume ntary evidence t o support t he allegati ons of non appli cati on of mind by the appr ovi ng aut hority hav e be en fil ed by the as sess ee. Whereas , on the other hand, the l earned dep ar tmental representative has filed affida vits from the the n Ass ess i ng Offic er a nd the approv i ng a uthor ity, wherei n t hey have deni ed the allegati ons raised by t he assess ee but no counter af fida vit has been filed by t he ass es see to c ontrov ert the deposition ma de by t he Ass ess i ng Offic er and the additi onal Commissioner of i nc ome-t ax i n their respect ive af fida vits . In t he decisi ons relied upon by the ass es s ee the main ra tio i s tha t approv al granted i n mec ha nical ma nner wi thout a ppli cation of mind is not sus tai na bl e i n law. In the dec isio ns relied upon of coordi nate benc hes mai n allegati on that t he Assessi ng Officer only forwar ded letter s eeki ng approval without encl osi ng ass ess me nt rec ords or appra isal report on seized material. In the af fida vits filed before us, i t has be en une qui voc ally stat ed by the Ass essi ng Of fi c er a s well as the Additional Commissi o ner of Inc ome-tax t hat all the iss ues i nvolv ed in t he as sess ment s we re discuss ed on r egula r basis from ti me to time be tween the t wo authoriti es as bot h the aut horities were s itting on sa me fl oor of office buildi ng. The ld DR s ubmit ted that the approvi ng a utho rity after consideri ng the queries raised by t he As s essi ng Officer and the reply of the asses see i n the li ght of appraisal report and s eized rec ord, ha d exami ned eac h iss ue dea lt in the draft ass es sment order pro perly a nd ther eafter only appr oval was gr a nted. In t he ca ses cit ed by t he lear ned c ouns el for the ass ess ee the fac t of disc ussi on on vari ous iss ues of assessm ent betwee n the two aut horities from time to time has not be en bro ught on rec or d and theref ore i n t hos e decisions this a spect has not been considered. We further not e that certai n modific ati ons were s uggested t o the Ass essing Officer i n the dr aft as sessment order , whic h have been ca rri ed out by t he Asses si ng Officer i n the assess ment order pas s ed, whi c h als o s hows tha t the a ppr ovi ng a uthority a ppr oved the draft order not i n mec ha nical ma nner, but after due 20 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma applicatio n of mi nd. T he fact o f modification s ugges ted i n the or der its elf s hows tha t the appr ovi ng a uthority has gone through dr at assess ment or der and analy ed t he issue i nvolv ed t herei n. In the cas es r elied upon by t he as sess ee the fact o f m odification s uggested by appr oving aut hority is not bor n out , which di stinguis h the c as e of the as sess ee wit h the case s r el ied upo n by t he ass ess ee. In similar circ umstanc es after c onsideri ng affida vits filed by the As s essi ng Office r a nd the a pprovi ng a uthority , the coordi nat e benc h of the T ribunal i n the cas e of Prati bha Pipes & Struc tura l Ltd in I TA No. 3874 to 3876/Mum/2015 and ITA No. 7120/Mum/2016 in AY 2007-08 to 2009-10 a nd 2011-12, upheld val idity of appr ov al granted under secti on 153D of the ac t of obs ervi ng as under:
"16. We have hea rd bo th the parties, perus ed t he mat erials a vailabl e on r eco rd a nd gone through t he orders of autho rities bel ow. Ther e i s no do ubt with rega rd to t he fac t t hat as per pr ovis ions of s ec tion 153D, the AO needs to ta ke pri or approval from t he Addl. C ommissioner of the ra nge in c harge before pass i ng a ny as sessment order u/s 1 43(3) r. w.s . 153A of the Inc ome-tax Act, 1961. It is also not in dispute tha t the A O, in his assessment ord er at pa ra 7 had categorically s ta ted tha t the ma nda tory r equir ement of appr ov al u/ s 153D of t he I ncome -tax Act , 1961 has bee n tak en from the A ddl. CI T, Cent ral R a nge- 4 , Mumbai v id e lett er No.A ddl.C IT/CR -4 /Appr ovl- 153D/2012-13 dated 25-03-2013. It is a lso not i n dispute tha t the assessee has not rais ed any obj ec ti on, whats oever, wi th regar d t o the iss ue of appr ov al u/ s 153D eithe r before the AO o r before the first appellate autho rity. The assessee has ta ken the legal gro und for the first time before the Tribunal by filing additional ground of appeal. Therefor e, t he whol e iss ue needs to be apprised in the light of abo ve facts a nd als o the conduc t of the as s ess ee. Admitt edly, t he departm ent, i n reply to R TI a pplica ti on clarified that nei ther c opy of a ppr ova l reque st l ett er filed by the A O t o t he Addl . C ommissio ner, nor co py of appr ov al gra nte d u/ s 153D of t he Act, was found i n the ass ess ment order fol der. Howe ver, it was furt her stat ed that i n t he 153D approval fol der mai ntai ned i n the offic e of Addl. CIT, Range-4 , the approv al grant ed in ot her group c as es were trac ed. The ass ess ee c laims tha t me re mentioni ng of havi ng been take n approval u/ s 153D i n t he a ssessment order is not s ufficient a nd what is required to be s een is whether t he depa rtme nt is able t o pr ovi de c opy of approval letter gra nted by the A ddl. CI T, or not . Si nce t he department has categorically sta t ed that approva l grant ed u/ s 153D
21 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma of the Ac t is not availa bl e i n t he a ssessme nt folder , obv iously , benefit of doubt goes in fa vour of the as sessee that no such approval has been ta ken by t he AO u/ s 153D bef ore pa ssi ng or der u/ s 143(3) r. w.s . 153A of the 1. T. Act, 1961.
17. In t he a bov e factual bac kgr ound, if we exami ne the cl aim o f t he a ss essee by way of additi onal gro und, we find t ha t there is a s eri ous suspicion rai s es about the conduc t of the as sess ee i n ta ki ng additional gro und cha llenging the iss ue of appr ov al u/ s 153D of the 1 . T. Ac t, 1961, f or t he firs t ti me, before the Tribunal . The a sses see never disput ed this iss ue be fore the lower a uthorities . The as ses see has ta ken this is sue for the firs t time before t he Tri buna l a fter ascertai ni ng t he fact in c onnection wi th its R TI applic ation that no such approv al was a vai lable in the assess ment folder . When the ass ess ee has not rais ed the iss ue before the C IT(A), then there is a seri ous do ubt a rise i n the mi nd a bout the i nte nd of t he as sessee to ta ke a lega l gr ound before the Trib unal. In this fac tual bac kground, if we exami ne the cont ents of the approval mentioned by the AO in t he a ss essme nt order coupled with affida vits fi led by t wo se ni or most offic ers , who wer e i n charge of the a ss essme nt proc eedi ngs, we find tha t both officers have s tat ed i n their affidavit s about re quirement of la w und er t he prov isions of section 153D of the Inc ome-ta x Act , 1961. The then AO, S hri Mi lind Raj guru, Joi nt Commis si o ner of Inc ome-tax (R etd) had filed an af fida vit and stat ed t ha t ma nda tory r equirement of appr ov al u/ s 153D had been obta i ned. Further, S hri Abhijit Pa thanka r, the CI T(DR), has als o filed an af fida vit and s ta ted that he ha d grant ed approval required to be given u/ s 153D vide his l et ter No.Addl. CIT / CR -4 / Approva l- 153D/ 2012-13 dated 25-03- 2013. Although, affidavit is not primary evidenc e whic h cannot be accepted in abs enc e of circumstantial ev idences, but in this ca se, the c ircums ta ntial ev idence av ailable i n the assessment rec ord s upports the contents of a ffidavits filed by bot h officers . Ther efore, the affida vits filed by the officers ca nnot be ignored, as not havi ng a ny evidentiary val ue. The contents of a ffidav its filed by the offic ers c oupled with circumstantial evi denc es available i n the a ss essme nt folders cl early establish t he fa ct of obt ai ning nec es sary approva l u/ s 153D of the 1. T. Act. Though, copy of approval letter is not a vail able i n t he as sessment r ec ord, but the contents of approval lett er issued by the co mpetent a uthorit y ha s been reproduc ed i n v erbatim i n the as sess ment or der a t para 7. Further, t he approva l gra nted i n ot her group 22 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma cases is very much av aila ble i n the ass essment fol der . Ther efore, it cannot be said tha t no appr oval had been ta ken. Furt her, the a pproval u/ s 153D i s an adminis tr ative pro cedur e whic h requi res to be complied with by the of fi cers, who is dis cha rgi ng the as sessment functions . The administr ation acti on o f t he department is not ve ry much rel eva nt f or the as ses s ee to justify its ca se , on merits. Therefore, when as sessee go es to ques tion the admi nis trati ve proc edur e, rat her cont endi ng its case on merits , that to o, after a laps e of 4 t o 5 yea rs, t hen obvi ously , a doubt aris es a bout i nte nd of t he as sess ee i n ta ki ng this gro und and s uc h an atte mpt is de rail t he iss ue on merits and to esc ape on technica l ground. Therefore , we are of the co nsidered view t hat there is no merit i n the additi onal ground ta ken by t he as ses s ee challengi ng vali dity of a ss es sme nt order pass ed by the AO u/s 143(3 ) r.w.s. 153A o f the I ncome-tax Act , 1961. Although, the assess ee ha s r elied upon certain judicial prec edent s, we fi nd that those ca se la ws were rend er ed under differ ent s et of fac ts , where t he as sessee ha d taken t he ground c hal lengi ng v alidity of the as se ssment before the C IT(A ) and also fac t tha t there was no specific observa tion i n the a ss ess me nt order for taking approva l r equi red to be taken u/ s 153D of the Income-ta x Act, 1961. In this c ase , t he AO has categoric ally rec orde d a t para 7 of his as sessment order in respec t of a ppr oval take n u/ s 153D a nd suc h referenc e ha s been furt her strengthened by the a ffida vits of t wo o ffi cer, who we re part of assessment proceedi ngs. The refore, the c as e laws relied upo n by the assess ee cannot be c o nsi dered as applicabl e to the fac ts of assess ee cas e.
18. In this vi ew of the matt er a nd c onsid eri ng facts and c ircumstanc es of the cas e, we a re of t he considered view tha t t here is no merit i n the additi onal ground taken by the as ses se e chal lengi ng validity of ass essme nt order pa ss ed u/ s 143(3) r.w.s . 153A of the 1. T. Act, 1961 in light of provis ions of section 153D of t he I.T.ACT, 1961. Henc e, we rej ect additi onal ground taken by t he ass es se e."
8.2 In vi ew o f the afores aid discussi on and verificati on of rec ords av aila ble, we are of the opini on tha t approval was gr anted by the a dditi onal C ommissi oner of i nc ome- ta x aft er due applica tion of mi nd. The obje ctions of t he as sess ee rais ed in an additi onal ground are ac cordi ngly rej ec ted . The a dditional ground is acc ordi ngl y is dismissed. "
23 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma
5. Learned CIT-DR's vehement contentions therefore is that he is very much ready to call for the co ncerned filed authorities' re spective affidavits to buttress the point that not only they had applied their due mind but also section 153D approval(s) stand granted after considering all the re levant legal propositio n and facts on record.
6. We see no merit in the learned C IT-D R foregoing arguments. This is for the precise reason that there is no s uch procedure of getting the field authorities affidavit in support of the ir respective orders under the provisions of the Act that stated in the case records. Case law Hindustan Lever Ltd. Vs. R.B. Wadkar (2004) 268 ITR 332 (Bom.) has alrea dy settled the issue; in section 148/147 jur isprudence , that even reasons recorded by the assessing authority co uld not be allowed to be improved of any latter stage which have to be read as standalone bas is. The very legal proposition is applicable in administrative law as well as in hon'ble apex court's landmark decisio n in Mohinder Singh Gill & Anr. Vs. CEC (1978) 1 SCC 405 (SC) w herein the ir held as under:
"The s eco nd equall y r eleva nt ma tter is t hat when a stat utory functi onary makes an or der base d o n c ertai n grounds, its vali dity must be judged by t he r eas ons s o menti oned and c annot be suppl emented by fres h rea sons in the s ha pe of a ffidavit or otherwise . Otherwis e, a n orde r bad i n the be gi nni ng ma y, by the time it c om es t o c ourt on acc ount of a challenge, get val ida ted by additio nal grounds l atter brought out. We may here draw attent ion to the observa ti ons of B ose J. i n Gordhandas B hanji.
24 ITA Nos. 1236 to 1241, 1351 to 1356, 1596 & 1956/Del/2022 Himanshu Verma "Publ ic o rders, publicly made, i n exercis e of a s ta tutory a ut hority ca nnot be const rued in the light of explanati ons subs equently giv en by the office ma ki ng the o rder of wha t he mea nt, or of wha t was i n hi s mind, or what he i ntended to do. Public orders made b y public authoriti es ar e meant to ha ve public effec t and are i ntended to ef fect the acti ngs and c onduct o f t hos e to whom they are addressed and must be cons tr ue d obj ec ti vely with referenc e to t he langua ge used i n the order its elf. "
Orders are not l ike old wi ne becomi ng better as the y gr ow older".
7. We thus conclud e in this factual backdrop that given the fact that the impugned section 153D ap proval dated 23.12.2019 is a common one in all these assessment years, the se consequential assessments dated 23.12.20 19, are not sustainable in the eyes of law. The same are hereby quashed in very terms. Ord ered acc ordi ngly.
8. All other plead ings on merits stand rendered ac ademic.
9. These assessee's appeals ITA Nos. 1236 to 1241 & 1596/Del/2022 are allowed and the Revenue's cross appeals ITA Nos. 1351 to 1356 & 1956/Del/2022 are dismissed in above terms. A copy of this commo n order be p laced in the respective case files.
Order Pronounced in the Open Court o n 29/04/2025.
Sd/- Sd/- (M. Balaganesh) (Satbeer Singh Godara) Accountant Member Judicial Member Dated: 29/04/2025 *Subodh Kumar, Sr. PS*