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TMI Blog2020 (8) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the Coordinate Bench (supra). In view of the decision of Coordinate Bench in the case of Shri Swapan Kumar Paul (Supra) and position of law provided u/s 153D of the Act, we hold that impugned assessment order framed in absence of obtaining prior approval of the Joint Commissioner of Income Tax (JCIT), for the assessment year under consideration is invalid and null in the eye of law, therefore we quash the assessment order - Decided against revenue. - ITA No.116/Gau/2018, C.O. No. 16/Gau/2018 (Arising out of ITA No.116/Gau/2018 - - - Dated:- 31-7-2020 - Shri A. T. Varkey, JM And Dr. A.L. Saini, AM For the Assessee : Shri Rockein Saikia, JCIT, Sr. DR For the Revenue : Shri Sanjay Modi, FCA ORDER PER DR. A. L. SAINI: The captioned appeal filed by the Revenue and the cross objection filed by the assessee, pertaining to assessment year 2014-15, are directed against the order passed by the Commissioner of Income Tax (Appeal), Shillong, in Appeal No. CIT(A)/Shg/10062/2016-17 dated 22.03.2018,which in turn arise out of an assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (in short the Act ) dated 29.03.2016. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in short JCIT ) as required u/s 153D of the Act. Therefore, the Assessing Officer was having no jurisdiction to frame assessment order without prior approval of JCIT as there is necessary requirement to comply with section 153D of the Act. Therefore, order framed by the Assessing Officer is void in the eye of law and should be quashed. 6. On the other hand, ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer. He stated that requirement u/s 153D of the Act is merely a procedural one and assessment framed by the Assessing Officer cannot be considered as void in the law; just because there is a small breach in observing the provisions of section 153D of the Act. 7. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials available on record. We note that in assessee s case under consideration, the Assessing Officer made the assessment without taking approval from the Joint Commissioner of Income Tax, which is necessary as per the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 015-16/295 dtd 28.3.16 (v) AZBOO5539K/ACIT/AGT /2015-16/296 dtd 28.03.16. Draft assessment orders as per your letters under reference for the AY 2008-09 to 2014-15 are hereby approved u/s. 153D of the I.T. Act. Detail of the cases is given in the following table. You are directed to pass finial order in these cases served upon the assessee and send a copy of the said final order to this office for record purpose. Since o assessment records are sent by you along with your draft order(s), question of returning the same does not arise. Name of the assessee` PAN A/Yr. Assessed income (in Rs) Remarks Swapan Kumar Paul AEYPP1792J 08-09 21,04,770 1. Don t quote section 68 in case of addition under voluntary disclosure / undisclosed income. 2. Keep proper note as note not for the assessee . 3. Penalty proceedings u/s. 271(1)(c)/271AAB is to be initiated after careful consideration. Keep proper note, i.e. your satisfaction for initiation of penalty quoting proper section under whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do . 10-11 12,49,68,760 .do . .do... do . 11-12 21,25,81,959 .do . .do... do . 12-13 33,70,10,742 .do . .do... do . 13-14 27,25,50,393 .do . .do... do . 14-15 20,70,87,907 .do . Subhajit Paul AZNPP5539K 08-09 1,53,950 do .do... do . 00-10 5,25,320 .do . .do... do . 10-11 17,26,930 .do . .do... do . 11-12 19,23,600 .do . .do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment orders were questioned both on legal issue and on merits. On legal issue, the validity of assessment orders in absence of approval obtained u/s. 153 D of the Act of Joint Commissioner of Income Tax has been questioned. On merits additions made by the A.O were impugned. Since the assessee could not succeed in its appeal, the present appeals have been preferred in questioning the first appellate orders. 12. On perusal of the provisions laid down u/s. 153C of the Act, it is apparent that after issuance of notice u/s. 153C, the A.O having jurisdiction over such other person (against which incriminating material AkilGulamaliSomji A.Y. 2001-02 to 2004-05 Page of 14 has been found during the course of search conducted on a person) arose or re-assess income of such other person in accordance with the provisions of Sec. 153A. Sec. 153B talks about time limit for completion of assessment u/s. u/s. 153A, whereas S.153D, talks about necessity of prior approval for framing assessment in case of search or requisition. We thus fully concur with the submission of the Ld. A.R. that provisions laid down u/s. 153D are very much applicable in case of assessment of income of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r assessment in cases of search or requisition under which, Sec. 153D has been provided do not leave an iota of doubt about the very intention of the legislature to make the compliance u/s. 153D a mandatory. There is no dispute that if a provision is mandatory, an act done in breach thereof will be invalid, but, if it is directory, the act will be valid although non-compliance may give rise to some other penalty if provided by the Statute. The general rule that noncompliance of mandatory requirements results in nullification of the Act is subject at least to one exception. If contain requirements or conditions are provided by a statute in the interest of a particular person, the requirements, or conditions although mandatory may be waived him if no public interest are involved and in such case, the act done still be valid even if the requirement or condition has not been performed. Here, before us, is not a case where consent of assessee will waive the condition of obtaining prior approval u/s. 153D of the Joint Commissioner of Income Tax by the A.O for framing AkilGulamaliSomji A.Y. 2001-02 to 2004-05 Page of 14 assessment u/s. 153C/ 153A of the Act. Condition of prior approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case, assessments in question have been framed on 27.12.2007. 13. In the case of CIT Vs. Ratnabai N.K. Dubhash (Mrs.) (Supra), the difference between cancellation and amendment of assessment in view of the provisions of Sections 143, 144B, 153 and 251 of the I.T. Act 1961 has been dealt with. The Hon'ble High Court has been pleased to hold as under: In view of the above discussion, we are of the clear opinion that in cases falling under section 144B of the Act, the quasi-judicial function of the Income-tax Officer as an assessing authority comes to an end the moment the assessee files objections to the draft order. The power to determine the income of the assessee thereafter gets vested in the Inspecting Assistant Commissioner to whom the Income-tax Officer is required to forward the draft order together with objections. The only thing that remained to be done by the Income-tax Officer is to pass a final order in accordance with the directions given by the Inspecting Assistant Commissioner. The function of the income-tax Officer to make the final assessment under section 144B(5) of the Act is more in the nature of a ministerial function because he can pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after discussing the issue in detail and the case laws cited before it has been pleased to approve the decision of Tribunal. In view of these decisions and the position of law provided u/s. 153D of the Act, we hold that the assessment orders impugned framed in absence of obtaining prior approval of the Joint Commissioner for the A.Ys. under consideration are invalid as null and void and are quashed accordingly. 15. The decisions relied upon by the Ld. D.R are having different facts and issue, hence are not helpful to the revenue. In the case of Guduthur Bros. Vs. ITO (Supra) the levy of penalty without affording a hearing to the assessee was questioned before the appellate authority, who set aside that order. The matter ultimately travelled to the Hon'ble Supreme Court and it was held that the ITO was well within his jurisdiction to continue the proceedings from the stage at which the illegality has occurred and to assess the appellants to a penalty, if any. Before the Hon' ble M.P. High Court in the case of CIT Vs. Sardarilal Hasim (Supra), the issue was regarding applicability of prescribed limitation u/s. 275 in a penalty order passed after the case is remande ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not applicable in the case of present assessee. Under above circumstances, the issue raised regarding the validity of assessment orders in question without obtaining prior approval u/s. 153D of the Act is decided in favour of the assessee. The assessment orders in question are thus quashed as null and void. 4. We afforded ample opportunity to the department to clear the air as to whether JCIT had applied his mind whilst according approval to ACIT s draft assessment(s) in these two assessees case or not. Mr. Bhardwaj stated that the relevant provision enshrined in sec. 153D of the Act nowhere prescribes a particular mode of approval. It is sufficient if the Assessing Officer seeking approval places the entire facts/issue(s) before the JCIT for the purpose of seeking approval. He invites our attention to the JCIT s remarks in last column extracted hereinabove to buttress the point that the said prescribed authority had duly applied its mind as required u/s 153D of the Act. 5. We have given our thoughtful consideration to rival contentions. Suffice to say, there is hardly any dispute that the Assessing Officer herein had in fact asked for the JCIT s approval u/s. 153D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Commissioner of Income Tax before completion of the assessment and therefore the assessment order is liable to be quashed. The ground of appeal is contested as follows:- . a. That as per the provisions of section 153D of the Act every assessment order in search cases are to be passed with the prior approval of the Ld. JCIT/Addl. CIT. In the instant case as mentioned in the bottom of the assessment order the approval had been obtained from the Ld. Addl. CIT on 27.03.2015. For this proposition it is submitted that, the AO issued notice u/s.142(1) on 30.3.2015 requisitioning certain documents, clarifications etc. If the assessment was completed prior to 27 03 2015, then how the notice u/s 142(1) was issued on 30.03.2015. As a matter of fact, no assessment was completed on 27.03.2015 or prior to that nor also orders were approved by the Ld. Addl. Commissioner of Income Tax. Therefore, the assessment order passed without obtaining the approval from the Addl. Commissioner of Income Tax is illegal and void ab initio and liable to be quashed. b. Further it is submitted that, as per the provisions of section 153D the Act, every assessment or reassessment order is to be pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh the assessment order. Decision :- The submission of the Ld. A.R. was referred to the A.O. u/s.250(4) of the Act on 23.09.2016. In reply, the A.O. has given the following reply in letter dt.17.10.2016:- The contention of the assessee that the assessment orders were passed without the prior approval of the Addl. CIT is not correct. Assessment orders have been passed with the in principle approval of the Addl. C.I.T. after obtaining the same as required u/s.l53D of the I.T. Act, 1961. The imminent additions/disallowances which the Assessing Officer was going to make in its assessment orders to be passed u/s.l53A(b) of the Act were there in the proposed draft assessment orders. So the averments of the assessee that assessment orders were passed without obtaining the approval of the Addl. CIT is altogether misplaced and incorrect and not borne by the material available on record. Hence deserve to be dismissed. The A.O. has furnished copy of the approval letter of the Addl.CIT, Range- 1, Bhubaneswar dt.27.03.2015. The copy of the letter has been placed record. On perusal of the approval letter, it is clearly evident that the Addl. C7 asked the A.O. to verify o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT, 173 TTJ (Mumbai) 332 , wherein, it was held as under: 11.3 The Legislative intent is clear inasmuch as prior to the insertion of Sec.153D, there was no provision for taking approval in cases of assessment and reassessment in cases where search has been conducted. Thus, the legislature wanted the assessments/reassessments of search and seizure cases should be made with the prior approval of superior authorities which also means that the superior authorities should apply their minds on the materials on the basis of which the officer is making the assessment and after due application of mind and on the basis of seized materials, the superior authorities have to approve the assessment order. 11.4 The question before us is has this been done in the present case . The language of the approval letter says no . Let us now consider some analogous provision in the Act. Sec. 142(2A): 142(2A) If, at any stage of the proceedings before him, the Assessing Officer, having regard to the nature and complexity of the accounts, volume of the accounts, doubts about the correctness of the accounts, multiplicity of transactions in the accounts or specialised nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s level of understanding or comprehension. Sometimes, what appears to be complex on the face of it, may not be really so if one tries to understand it carefully. Thus, before dubbing the accounts to be complex or difficult to understand, there has to be a genuine and honest attempt on the part of the Assessing Officer to understand accounts maintained by the assessee; appreciate the entries made therein and in the event of any doubt, seek explanation from the assessee. But opinion required to be formed by the Assessing Officer for exercise of power under the said provision must be based on objective criteria and not on the basis of subjective satisfaction. There is no gainsaying that recourse to the said provision cannot be had by the Assessing Officer merely to shift his responsibility of scrutinizing the accounts of an assessee and pass on the buck to the special auditor. Similarly, the requirement of previous approval of the Chief Commissioner or the Commissioner in terms of the said provision being an inbuilt protection against any arbitrary or unjust exercise of power by the Assessing Officer, casts a very heavy duty on the said high ranking authority to see to it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of mind on the part of the Assessing Officer as also the Chief Commissioner of Income-tax. 11.7. Another section relevant to the facts in issue is Sec. 158BG which read as under: The order of assessment for the block period shall be passed by an Assessing Officer not below the rank of an Assistant Commissioner or Deputy Commissioner or an Assistant Director or Deputy Director, as the case may be: Provided that no such order shall be passed without the previous approval of- (a) the Commissioner or the Director, as the case may be, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, after the 30th day of June, 1995, but before the 1st day of January, 1997; (b) the Joint Commissioner or the Joint Director, as the case may be, in respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A, on or after the 1st day of January, 1997. 11.8. In this section also it is provided that the order cannot be passed without the previous approval. This section was thoroughly scrutinized by the Tribunal Madras Bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Hon ble High Court of Delhi Bench in the case of United Electrical Co. 258 ITR 317 which read as under: Hon ble Delhi High Court in the case of United Electrical Co. Pvt. Ltd. Vs CIT 258 ITR 317 has held that the proviso to sub-section (1) of section151of the Act provides that after the expiry of four years from the end of the relevant assessment year, notice under section 148 shall not be issued unless the Chief Commissioner or the Commissioner, as the case may be, is satisfied, on the reasons recorded by the Assessing Officer concerned, that it is a fit case for the issue of such notice. These are some in-builts safeguards to prevent arbitrary exercise of power by an Assessing Officer to fiddle with the completed assessment . The Hon ble High Court further observed that what disturbs us more is that even the Additional Commissioner has accorded his approval for action under section 147 mechanically. We feel that if the Additional Commissioner had cared to go through the statement of the said parties, perhaps he would not have granted his approval, which was mandatory in terms of the proviso to sub-section (1) of section 151 of the Act as the actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Ld. Dr. We find that all the decisions relied upon by the Ld. DR are misplaced inasmuch as all these decisions relate to the issue whether the Joint CIT/CIT has to give an opportunity of being heard to the assessee before granting the approval. This is not the issue before us as the Ld. Counsel has never argued that the assessee was not given any opportunity of being heard. These decisions therefore would not do any good to the Revenue. 7. Further, he relied on the decision of Jodhpur Bench of the Tribunal in the case of Smt. Indra Bansal Ors vs ACIT, (2018) 192 TTJ (Jd) 968, wherein, it was held as under: 6.4 Coming to the facts of the case, it is apparent from the documents on record that the approval was given by the Jt. CIT in hasty manner without even going through the records as the records were in Jodhpur while the Jt CIT was camping at Udaipur. The entire exercise of seeking and granting of approval in all the 22 cases was completed in one single day itself i.e. 31st March, 2013. Thus, it is apparent that the JCIT did not have adequate time to apply his mind to the material on the basis of which the AO had made the draft assessment orders. Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning capital of ₹ 23,35,735/-, most of which is in cash. The capital as on 31st March, 2007 has been shown at ₹ 24,22,099/-, out which ₹ 16,35,201.65 has been shown as cash in hand with ₹ 28,897.35 as cash at bank. Besides, investment of ₹ 4 Lacs in fixed deposits and ₹ 3 Lacs in MIS in Post Office has been shown. This appears quite unusual as the assessee was maintaining bank account with Punjab National Bank. No prudent person would keep such a big cash amount in his hand despite having a bank account. Further you should examine the opening cash in hand and ask the assessee to furnish evidence in support of it failing which this opening cash in hand may be added to the total income of the assessee. 9. Ld D.R. submitted that the Addl. CIT, Range-1, Bhubaneswar has gone through the seized materials and after that has given approval to the order of the Assessing Officer and while doing so, he has directed the Assessing Officer to examine the opening cash in hand before determining the total income of the assessee. The Assessing Officer after examining the same as per the direction of the Addl. CIT has passed the assessment order. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. 13. In reply to the same, ld D.R. submitted that the reading of para 7 of the order will show that the Addl. CIT has applied his mind and granted necessary approval to examine the cash in hand before passing the assessment order. He argued that the said details show that though there was shortage of time, the Addl. CIT has applied his mind before granting approval to the assessment order by burning the midnight order. 14. The common Ground No.4 in both the appeals reads as under: That the assessment order passed u/s.153A(a) are barred by limitation and liable to be quashed. 15. The CIT(A) has disposed of this issue by observing as under: That, the assessment order passed u/s 153A(a) is barred : limitation and liable to be quashed. The ground of appeal is contested as follows:- a. That, in the instant case as it is pointed out in the assessment order, it had been passed on 31.03.2015. For this proposition is it to bring to your kind notice that, the notice u/s 142(1) was issued and served on the appellant on 30.03.2015 to which the hearing was fixed on 31.03.2015. On 31.03.2015, the A/R of the appellant appeared and filed the required documents, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the reliance may be placed on B.J.Shelat Vs. State of Gujrat; AIR 1978 SC1109. In this case the Hon'ble Supreme Court has held as follows:- The order of any authority 'cannot be said to be passed unless it is in some way pronounced or published or the party affected has a means of knowing it. It is not enough if the order is made, signed and kept in the file, because such order may be liable to change at the hands of the authority who may modify it, or even destroy it, before it is made known, based on subsequent information, thinking, or change of opinion. To make the order complete and effective, it should be issued, so as to be beyond the control of the authority concerned, for any possible change or modification therein. This should be done within the prescribed period, though the actual service of the order may be beyond that period. d. Further it is submitted that, the Hon'ble jurisdictional ITAT respectfully following the aforesaid decision in the case of ACIT, Circle-2(2) Vs. Orissa Stevedores Ltd. Vide ITA No.409-411/2011 CO no.30-32/CTK/2011, it was held the communication is condition precedent to an order of assessment becoming effectiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [including applying for refund and receiving the refund vouchers] on behalf of the assessee through the PoA and as stated above the A.R. also did not object at the - instant to receive the assessment order serving of assessment order (s) which resulted in demand by hand did not violate any rule. (ii). It is nowhere mentioned in the statute that the assessment order would have to be served on the assessee. Ail that is required is that the notice of demand specifying the sum payable should be served on the assessee in the prescribed form and would be accompanied by an assessment as held in the case of CIT Vs. Kailasho Devi Burman (1978) 115 ITR 732 (Cal.,) SivalingamChettiar (VS) Vs. CIT (1966) 62 ITR 678 (Mad.), Kalyankumar Ray Vs. CIT (1991) 191 ITR 634 (SC), Arrah Sasaram Light Railway Co. Ltd. Vs. CIT (1993) 204 ITR 807 (Cal), Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. Vs. CIT (1994) 208 ITR 882 (Cal), etc. The limitation period prescribed in section 153 is the period within which the AO has to complete one stage of the proceedings, that is, the assessment of the income and the determination of the tax payable. It is not necessary that the terms of the order of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent purpose and different meaning. 'Made' cannot be treated on the same footing as served. The fact that the word used is ' made ' in section 153 shows that the assessment order should be made on or before the said date. It does not mean that it should be served. On this ground itself as we find that the decision of the Coordinate Bench has erroneously laid down the law on this issue if the word 'made' is given the meaning served then the section itself would become unworkable and it would make all assessment orders made on the last day illegal. In the circumstances, respectfully following the principles and the ratio laid down by the Hon'ble Madras High Court in the case of CIT Vrs. Hi-Tech Aral Ltd. (20-10) 321 ITR 477, we differ from the decision taken by the Coordinate Bench in the case of Durga Condev Pvt. Ltd. (Supra) as also decision of Shanti Lai Godawat Ors. Vrs. ACIT (2009) 126 TTJ(Jodh) 135. Here, we may specifically mention that in the case of Durga Condev Pvt. Ltd. (Supra), though one of us is co signatory in that order still we differ from the said order as there is no bravery. perpetuating an error in law. The fact that the assessment orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above stated facts, his argument was that as the assessment order was passed on 31.3.2015 and the same was delivered by hand to the assessee on 8.4.2015, the same was barred by limitation and, therefore, liable to be annulled. 18. Ld D.R. on the other hand submitted that Section 153A requires the order to be made within the time limit and does not requires the same to be served on the assessee and they can be served later on. He agreed with the facts as stated in the order of the CIT(A) that although the assessment order was passed on 31.3.2015, it was served on the ld A.R. of the assessee by hand on 8.4.2015. He relied on the decision of Hon ble Calcutta High Court in the case of Binani Industries Ltd vs. CIT (2015) 59 taxmann. Com 389 and submitted that the Hon ble High Court has upheld the order in absence of any material to show that the Assessing Officer revisited the orders after 31.12.2016. 19. We have heard the rival submissions, perused the orders of lower authorities and materials available on record. In the instant case, the assessee has raised two legal issues. Firstly, the order of assessment being issued after the statutorily permitted time is barred by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CIT(A). 9. Ld D.R. could not explain when the orders were prepared on 30.12.2016 why it could not be dispatched on or before 31.12.2016. 10. We find that Section 153B(1)(a) reads as under: 153B (1) Notwithstanding anything contain in section 153, the AO shall make an order of assessment or reassessment (a) In respect of each assessment year falling within six assessment years [and for the relevant assessment year or years] referred to in clause (b) of sub-section (1) of section 153A, within a period of twenty-one months from the end of the financial year in which the last of the authorisations for search under section 132 or for requisition under section 132A was executed. 11. A perusal of the above provisions show that the language used by the legislature in the above provision is in negative and the words used are order of assessment and not only assessment . The word order denotes a command which is to be followed by somebody else. Unless the command is communicated to the person by whom it has to be followed, it does not become an order . 12. In our considered view, simply determining the total income of an assessee and determining i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ews are expressed by two different Hon ble High Courts, none of which are Hon ble Jurisdictional High Court, then the view favourable to the assessee should be followed. For this, we derive support from the decision of Hon ble Supreme Court in the case of CIT vs. Vegetable Products Ltd., 88 ITR 192 (SC). 16. Coming to the facts of the instant case, it is not in dispute that the last authorisation u/s.132 of the Act was executed on 28.5.2014. Twenty- one months from the end of the financial year 2014-2015 expires on 31.12.2016. Therefore, the orders of assessment in pursuance to the said search for the assessment years 2009-2010 to 2015-2016 were to be made on or before 31.12.2016. 17. It is not in dispute that the orders of assessment under consideration were dispatched only on 7.1.2017. Hence, in our considered opinion, the said orders of assessment were time barred and consequently, we set aside the same and allow this ground of appeal of the assessee for all the seven years under appeal. 22. In view of above, as in the instant case, the communication process of the assessment was not initiated admittedly within the prescribed period of limitation, hence it did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior Officer of the Department, which in turn, provides safeguard to both i.e. Revenue as well as the assessee. Therefore, this important provision laid down by the legislature cannot be treated as a mere empty formality. The same view was expressed by the Pune Benches of the Tribunal in the case of AkilGulamaliSomji vs ITO, in IT Appeal Nos.455 to 458 (Pune) of 2010 order dated 30.3.2012, wherein, it was held that when the approval was granted without proper application of mind, the order of assessment will be bad in law. The Hon ble Bombay High Court in the case of CIT-II Vs Shri AkilGulamaliSomji, in Income Tax Appeal (L) No.1416 of 2012 order dated 15.1.2013 concurred with the view of the Tribunal that not following of the provisions of section 153D of the Act will render the related order of assessment void. 25. In the instant case, we find that the Supervisory Authority has himself admitted that because of reasons stated by him, 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 said Supervisory Authority had a duty towards both the assessee as well as the Revenue which was fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... All these Revenue s appeal(s) are declined whereas the assessees appeal(s) / cross objections are allowed in foregoing terms. Ordered accordingly. 7. To sum up, these Revenue s appeal(s) are dismissed and assessees appeals / crossobjections are allowed. A copy of the instant common order be placed in the respective case file(s). 8. We note that the wordings and language used in Section 153D of the Act and the heading Prior approval necessary for assessment in cases of search or requisition which has been provided under section 153D of the Act, do not leave an iota of doubt about the very intention of the legislature to make the compliance of section 153D, a mandatory. In other words, the compliance of section 153D is mandatory in nature. Therefore, assessment order passed by the Income Tax Officer, in the assessee s case, without taking prior approval from JCIT, is null in the eye of law. As the issue is squarely covered in favour of the assessee by the decision of the Coordinate Bench in the case of Shri Swapan Kumar Paul (Supra) and there is no change in facts and law and the Revenue is unable to produce any material to controvert the aforesaid findings of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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