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TMI Blog2024 (6) TMI 336X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 250 of the Act is bad both in the eyes of law and on facts. 2. That the Ld. CIT(A) has erred on facts and in law in sustaining the order of the Ld. AO passed under Section 154 of the Act. 3. That the Ld. CIT(A) has erred on facts and in law in upholding the order passed by the learned AO under Section 154, ignoring the fact that the same has been framed consequent to a search which itself was unlawful and invalid in the eyes of law 5. That the Ld. CIT(A) has erred on facts and in law in sustaining the addition of Rs. 40,00,000/- made by the Ld. AO on account of unexplained money under section 69A of the Act without appreciating the facts of the case and relying solely upon dumb documents. 6. That the Ld. CIT(A) has erred on facts and in law in confirming the addition of Rs. 82,14,524/- made by the Ld. AO on account of unexplained money under section 69C of the Act, relying upon the dumb documents which are inadmissible in law, without appreciating the facts of the case. 7. That the Ld. CIT(A) has erred on facts and in law in appreciating the action of Ld. AO in invoking of provisions of section 115BBE of the Act while computing the tax payable in the case of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. The assessee for AY 2012-13 had already filed his original return of income on 28.09.2012 declaring income of Rs. 17,30,550/- which was duly processed u/s 143(1) on 13.12.2013. No assessment was framed either u/s 143(3) or u/s 147 of the Act for the AY 2012-13 before the date of search. In response to the notice issued u/s 153A of the Act, the assessee filed his return of income on 30.09.2019, declaring total income of Rs. 17,30,550/- which was the same income as was disclosed in the original return of income. 7. The assessee for AY 2016-17 had already filed his original return of income on 25.07.2016 declaring income of Rs. 17,16,430/- which was duly processed u/s 143(1) on 16.09.2016. No assessment was framed either u/s 143(3) or u/s 147 of the Act for the AY 2016-17 before the date of search. In response to the notice issued u/s 153A of the Act, the assessee filed his return of income on 30.09.2019, declaring total income of Rs. 17,16,430/- which was the same income as was disclosed in the original return of income. 8. The assessee for AY 2017-18 had already filed his original return of income on 29.11.2017 declaring income of Rs. 4,13,470/-. No assessment was framed eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ft assessment order in a mechanical manner without due application of mind. Further, he drew attention to page 2 of the paper book containing the approval granted by the ld JCIT on 30.12.2019, wherein, it had been categorically mentioned that the draft assessment orders were sent to the ld JCIT on 30.12.2019 and the same were duly approved by the ld JCIT on 30.12.2019 itself. For the sake of convenience, the approval granted by the ld JCIT is reproduced below:- Office of the Addl. Commissioner of Income Tax Central Range-02, Room No. 341, E-2, ARA Centre, 3rd Floor, Jhandewalan Extn, New Delhi - 110055 [email protected] Tel. No. 011-23593414/Fax 011-23593413 F. No. JCIT/CR-2/2019-20/1645 Date: 30/12/2019 To, The Assistant Commissioner of Income Tax., Central Circle-06, New Delhi Sub: Approval u/s 153D of the Income Tax Act, 1961 in the case of Sh. Gurvinder Singh Duggal (Da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... io. In support of this argument, the ld AR placed heavy reliance on the decision of the coordinate bench decision of this tribunal in the case of Shiv Kumar Nayyar Vs. ACIT in ITA Nos. 1282 to 1285/Del/2020; ITA No. 1078/Del/2021 and ACIT Vs. Shiv Kumar Nayyar in ITA No. 1867/Del/2021 dated 26.07.2023 wherein, this Tribunal had placed reliance on the decision of the Hon'ble Orissa High Court in case of ACIT Vs. M/s. Serajuddin and Co. in ITA Nos. 39 to 45 of 2022 dated 15.03.2023; decision of Hon'ble Allahabad High Court in the case of PCIT Vs. Subodh Aggarwal in Income Tax Appeal No. 86/2022 dated 12.12.2022 and the decision of the Hon'ble Jurisdictional High Court in the case of ACIT Vs. Anju Bansal in ITA 368/2023 dated 13.07.2023 had quashed the search assessment proceedings as there was no valid approval u/s 153D by the ld JCIT. 15. Per contra, the Ld. DR vehemently argued that the role of ld. JCIT, Central Range is totally different from the role of a JCIT in the normal range. She argued that in a Central Range, the ld. JCIT is involved in the search assessment proceedings right from the time of receipt of appraisal report from the Investigation Wing and is involved with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... together with copies of the seized documents before the ld. JCIT well in time much before the due date of completion of search assessment. The ld. JCIT is supposed to examine the seized documents, questionnaires raised by the Ld. AO on the assessee seeking explanation of contents in the seized documents, replies filed by the assessee in response to the questionnaires issued by the Ld. AO and the conclusions drawn by the Ld. AO vis- à-vis the said seized documents after considering the reply of the assessee. All these functions, as stated earlier, are to be performed by the ld. JCIT in a judicious way after due application of mind. Even though as vehemently argued by the Ld. CIT-DR, the ld. JCIT is involved with the search assessment proceedings right from the time of receipt of appraisal report from the Investigation Wing, still, the ld. JCIT, while granting the approval u/s 153D of the Act has to independently apply his mind dehors the conclusions drawn either by the Investigation Wing in the appraisal report or by the Ld. AO in the draft assessment order. The copy of the appraisal report submitted by the Investigation Wing to the Ld. AO and ld. JCIT are merely guidance to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draft assessment orders u/s 153D of the Act as it is not provided in section 153D of the Act, then it would make the entire approval proceedings contemplated u/s 153D of the Act otiose. The law provides only the Ld. AO to frame the assessment, but, certain checks and balances are provided in the Act by conferring powers on the ld. JCIT to grant judicious approval u/s 153D of the Act to the draft assessment orders placed by the Ld. AO. 17. Let us now examine whether in the aforesaid background of the scheme of the Act, whether the approval in terms of section 153D of the Act has been granted by the ld. JCIT in a judicious way after due application of mind or not, in the instant case. 18. We have gone through the approval granted by the ld. JCIT on the date mentioned in the table hereinabove u/s 153D of the Act. The said approval letter clearly states that a letter dated 30.12.2019 was filed by the Ld. AO before the ld. JCIT seeking approval of draft assessment order u/s 153D of the Act. The ld. JCIT has accorded approval for the said draft assessment orders on the very same day i.e., on 30.12.2019 for various assessment years. In any event, whether is it humanly possible for an ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... letter of the Assessing Officer seeking approval, he has sent only the draft assessment order without any assessment records what to say about the search material. As mentioned earlier, there are infirmities in the figures of original return of income as well as total assessed and the Addl. CIT while giving his approval has not applied his mind to the figures mentioned by the AO. Therefore, approval given in the instant case by the Addl. CIT, in our opinion, is not valid in the eyes of law. We, therefore, hold that approval given u/s 153D has been granted in a mechanical manner and without application of mind and thus it is invalid and bad in law and consequently vitiated the assessment order for want of valid approval u/s 153D of the Act. In view of the above discussion, we hold that the order passed u/s 153A r.w.s. 143(3) has to be quashed, thus ordered accordingly. The ground raised by the Assessee is accordingly allowed". [Emphasis is ours] 14. In this appeal, we are required to examine whether any substantial question of law arises for our consideration. 15. Having regard to the findings returned by the Tribunal, which are findings of fact, in our view, no substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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