Tax v. M/S. Dilip Construction Pvt.ltd

IN THE HIGH COURT OF ORISSA AT CUTTACK ITA No.23 of 2020 and (I.A. nos.32 of 2020 and 26 of 2023) …. Principal Commissioner of Income Appellant Tax -versus- M/s. Dilip Construction Pvt.Ltd. …. Respondent Advocates appeared in this case:For appellant : Mr. Radheyshyam Chimanka, Advocate (Senior Standing Counsel Income Tax) Mr. Avinash Kedia, Advocate (Junior Standing Counsel Income Tax) For respondent : Mr. Chitrasen Parida, Advocate CORAM: JUSTICE ARINDAM SINHA JUSTICE SANJAY KUMAR MISHRA --------------------------------------------------------------------------------------- Date of hearing and judgment: 28.06.2023 -------------------------------------------------------------------------------------- 1.Mr. Chimanka, learned advocate, Senior Standing Counsel appears on behalf of revenue and submits, his client wants admission of appeal against order dated 29[th] November, 2019 passed by the Income Tax Appellate Tribunal (ITAT), Cuttack Bench, in IT(ss) A Page 1 of 4 Nos.67/CTK/2018 and IT(ss) A No.135/CTK/2018 for the assement year, 2011-12 on substantial questions arising therefrom. He submits, due approval was granted under section 153 D of Income Tax Act, 1961. The Tribunal erroneously set aside the assessments, pursuant to the approval, on purported reason that there was no application of mind in granting them. He draws attention to the approval dated 23[rd]November, 2017 made by the Joint Commissioner, as quoted in page 21 of impugned order. He points out, the approval was sought by the Assessing Officer (AO) on letter dated 17[th] November, 2017 and after due consideration of the files, the approval came on 23[rd] November, 2017. Judgment dated 15[th] March, 2023 of the First Division Bench of this Court in ACIT, Circle-1(2), Bhubaneswar vs. M/s. Serajuddin and Co. Kolkata in I.T.A. nos.39 to 45 of 2022 is not applicable to the facts and circumstances of the cases. 2. Mr. Parida, learned advocate appears on behalf of the assessee and submits, purported contention raised by revenue in seeking admission of the appeal is covered by Serajuddin and Co. Kolkata (supra). He relies on paragraphs 22 to 25 to submit, there was no application of mind by the Joint Commissioner in granting the approval of 27 cases, of which the department is seeking to prefer appeal against 15. 3.Paragraph 22 from Serajuddin and Co. Kolkata (supra) is reproduced below. “22. As rightly pointed out by learned counsel for the Assessee there is not even a token mention of the draft orders having been perused by the Additional CIT. The letter simply grants an approval. In other words, even the bare minimum requirement of the approving authority having to indicate what the thought process involved was is missing in the aforementioned approval order. While elaborate reasons need not be given, there has to be some indication that the approving authority has examined the draft orders and finds that it meets the requirement of the law. As explained in the above cases, the mere repeating of the words of the statute, or mere “rubber stamping” of the letter seeking sanction by using similar words like ‘see’ or ‘approved’ will not satisfy the requirement of the law. This is where the Technical Manual of Office Procedure becomes important. Although, it was in the context of Section 158BG of the Act, it would equally apply to Section 153D of the Act. There are three or four requirements that are mandated therein, (i) the AO should submit the draft assessment order “well in time”. Here it was submitted just two days prior to the deadline thereby putting the approving authority under great pressure and not giving him sufficient time to apply his mind; (ii) the final approval must be in writing; (iii) The fact that approval has been obtained, should be mentioned in the body of the assessment order.” (emphasis supplied) (emphasis supplied) We find similarity in facts found in the case by the ITAT. The approval does not even say the Joint Commissioner had perused the files. As such, the contention sought to be raised in the appeal is covered by Serajuddin and Co. Kolkata (supra). In the circumstances, the appeal and applications are dismissed. 4. Prasant ( Arindam Sinha ) Judge ( S. K. Mishra ) Judge Signature Not Verified Digitally SignedSigned by: PRASANT KUMAR SAHOODesignation: SENIOR STENOReason: AuthenticationLocation: OHCDate: 28-Jun-2023 19:45:49