2017 (1) TMI 1796 - AT - Income Tax

Revision u/s 263 by CIT - no permission was taken by the Assessing officer from the JCIT u/s 153D before passing the assessment order u/s 153C - HELD THAT - In the case in hand the permission before passing the original assessment u/s 153A was duly taken by the Assessing officer from the competent authority. In our view the permission u/s 153 D was required to assume jurisdiction to pass an order of assessment u/s 153A of the Act. Once the permission was taken the jurisdiction was assumed by the Assessing officer and the assessment order was passed which however has been subsequently set aside by the CIT for framing the same afresh. In these circumstances it cannot be said that the AO had lost jurisdiction to frame the assessment afresh in compliance of the orders of the Ld. CIT(A) passed u/s 263 - Rather the Assessing officer was bound to frame the assessment afresh until and unless the said order of the Commissioner has been stayed or set aside by any higher Forum. Hence we are of the view that the Assessing officer was not required to take fresh approval of the JCIT before passing the fresh order in compliance of the orders of the Commissioner of Income Tax. The impugned orders of the Ld. CIT(A) are thus not sustainable in the eyes of law. The matter in both the appeals is restored to the file of the CIT(A) with a direction to decide the case on merits irrespective of the fact that whether the permission u/s 153D was taken or not before passing the fresh assessment order by the Assessing officer as per the directions of the Ld. CIT. - Appeal of revenue allowed for statistical purposes.

Summary

Issues:
1. Validity of assessment order passed by Assessing officer without permission u/s 153D from JCIT.
2. Interpretation of the requirement of obtaining approval u/s 153D for de novo assessment proceedings.
3. Jurisdiction of Assessing officer to frame fresh assessment order in compliance with CIT's directions under section 263.

Analysis:
1. The appeals were filed by the Revenue against the order of CIT(A) for assessment years 2007-08 and 2009-10, challenging the allowance of the assessee's appeals due to the absence of permission u/s 153D from JCIT for de novo assessment proceedings.
2. The CIT(A) held that obtaining approval u/s 153D from JCIT was a mandatory requirement, citing precedents like the decision of ITAT Pune Bench in the case of Akil Gulamali Somji vs ITO. The fresh assessment order passed without this approval was deemed null and void.
3. The Tribunal, after considering the facts and the relevant legal provisions, disagreed with the CIT(A)'s interpretation. It was noted that the Assessing officer had obtained permission u/s 153D before passing the original assessment order u/s 153A, thus establishing jurisdiction. The subsequent setting aside of the assessment order by CIT for a fresh assessment did not require a new approval from JCIT. Therefore, the Tribunal set aside the CIT(A)'s orders and directed the case to be decided on merits by CIT(A) without the need for fresh approval u/s 153D.
4. Consequently, the appeals of the Revenue were allowed for statistical purposes, and the matter was remanded to the file of CIT(A) for further proceedings.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision on each point raised in the appeal.