Taxc v. Taxc

1 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR TAXC No. 76 of 2024 Hitesh Golchha S/o Late Gautam Chand Golchha Aged About 41 YearsProprietor Of Mouli Investments, Aged About 41 Years, R/o Jeevan GangaNear Dani Bada, Budha Para, Raipur, Chhattisgarh, Pin - 492001. Hitesh Golchha S/o Late Gautam Chand Golchha Aged About 41 YearsProprietor Of Mouli Investments, Aged About 41 Years, R/o Jeevan GangaNear Dani Bada, Budha Para, Raipur, Chhattisgarh, Pin - 492001. ---- Appellant Versus Assistant Commissioner Of Income Tax Central Circle -1, Raipur, Office ItsAt Aayakar Bhawan, Civil Lines, Raipur, Chhattisgarh. 492001. Assistant Commissioner Of Income Tax Central Circle -1, Raipur, Office ItsAt Aayakar Bhawan, Civil Lines, Raipur, Chhattisgarh. 492001. ---- Respondent TAXC No. 79 of 2024 Hitesh Golchha S/o Late Gautam Chand Golchha Aged About 41 YearsProprietor Of Mouli Investments, R/o Jeevan Ganga Near Dani Bada, BudhaPara, Raipur, Chhattisgarh. Pin - 492001. Hitesh Golchha S/o Late Gautam Chand Golchha Aged About 41 YearsProprietor Of Mouli Investments, R/o Jeevan Ganga Near Dani Bada, BudhaPara, Raipur, Chhattisgarh. Pin - 492001. ---- Appellant Versus Assistant Commissioner Of Income Tax Central Circle - 1, Raipur, Office ItsAt Aayakar Bhawan, Civil Lines, Raipur, Chhattisgarh. 492001. Assistant Commissioner Of Income Tax Central Circle - 1, Raipur, Office ItsAt Aayakar Bhawan, Civil Lines, Raipur, Chhattisgarh. 492001. ---- Respondent For Appellant : Mr. Apurv Goyal, Advocate. For Respondent : Mr. Amit Chaudhari, Advocate along with Mr.Topilal Bareth, Advocate. along with Mr.Topilal Bareth, Advocate. Division Bench Hon’ble Shri Justice Goutam Bhaduri J.Hon’ble Shri Justice Radhakishan Agrawal, J.Judgment on Board Per, Goutam Bhaduri Judge 10.04.2024 1. Both the appeals are heard together since common question of lawhas been involved.has been involved. 2. The present appeal has been filed against the order of ITAT dated02/11/2023 for the assessment years 2016-2017 and 2014-2015.02/11/2023 for the assessment years 2016-2017 and 2014-2015. 3. The contention of the appellant is that the assessment was madepursuant to a scrutiny. It is stated that under Section 153(D) of theIncome Tax Act 1961 in case of assessment pursuant to it providesmandatory provision which purports that that no order of assessmentor re-assessment shall be passed by the Assessing Officer except withthe prior approval of the Joint Commissioner. He submitted that in theinstant case, the order has been passed by the Assessing Officerthough the approval is said to have been obtained. But the saidapproval letter dated 20.12.2018 (Annexure - 4) would show that thereis no application of mind as mechanical approval has been granted bythe Joint Commissioner. pursuant to a scrutiny. It is stated that under Section 153(D) of theIncome Tax Act 1961 in case of assessment pursuant to it providesmandatory provision which purports that that no order of assessmentor re-assessment shall be passed by the Assessing Officer except withthe prior approval of the Joint Commissioner. He submitted that in theinstant case, the order has been passed by the Assessing Officerthough the approval is said to have been obtained. But the saidapproval letter dated 20.12.2018 (Annexure - 4) would show that thereis no application of mind as mechanical approval has been granted bythe Joint Commissioner. 4. He would submit that since the right is being protected under Section153(D) of the Income Tax Act, as per the law laid down by High Courtof Orissa in the matter of Assistant Commissioner of Income Tax,(2023) 454 ITR 312 : 2023 SCC Online Ori 992: (2023) 333 CTR228, the bare minimum requirement of said section is ApprovingAuthority is required to indicate that what thought process wasinvolved which should be reflected in the approval order, though theelaborate reasons need not to be given, but some indication of reasonfor arriving into conclusion must exist. In order to appreciate the153(D) of the Income Tax Act, as per the law laid down by High Courtof Orissa in the matter of Assistant Commissioner of Income Tax,(2023) 454 ITR 312 : 2023 SCC Online Ori 992: (2023) 333 CTR228, the bare minimum requirement of said section is ApprovingAuthority is required to indicate that what thought process wasinvolved which should be reflected in the approval order, though theelaborate reasons need not to be given, but some indication of reasonfor arriving into conclusion must exist. In order to appreciate the submission, we went through the order of the ITAT as also theapproval order dated 20.12.2018 (Annexure - 4). As per Section153(D) which has covered the instant case in hand the statutemandates was to obtain a prior approval of the Joint Commissioner bythe Assessing Officer. The approval of Joint Commissioner has beentaken, therefore mandate of Section 153(D) has been complied. 5. The order of the Assessing officer of approval (Annexure - 4) wouldreflect that Joint Commissioner was satisfied on the basis of thedocuments on record that such approval was justified. In a given case,it can not be presumed on the mere say of the assesee that noapplication of mind was there while granting the approval. It is thesubjective satisfaction and the language of the (Annexure - 4) wouldshow that on the basis of the document produced before the JointCommissioner, he was convinced of the fact that such approval wouldbe necessary as the statute mandate. reflect that Joint Commissioner was satisfied on the basis of thedocuments on record that such approval was justified. In a given case,it can not be presumed on the mere say of the assesee that noapplication of mind was there while granting the approval. It is thesubjective satisfaction and the language of the (Annexure - 4) wouldshow that on the basis of the document produced before the JointCommissioner, he was convinced of the fact that such approval wouldbe necessary as the statute mandate. 6. From perusal of the language of the letter (Annexure - 4), we cannotpresume that there was no application of mind as the approval neednot be a detailed assessment order. The presumption under Section114 of the Evidence Act would follow when such official Act has beendone in accordance with official procedure and will lead topresumption that due diligence was followed. Even otherwise, theorder of the ITAT would reflect that the case of appellant wasremanded back to the Assessing Officer for fresh adjudication of theissue. Further the liberty was given to the assessee to raise all suchpresume that there was no application of mind as the approval neednot be a detailed assessment order. The presumption under Section114 of the Evidence Act would follow when such official Act has beendone in accordance with official procedure and will lead topresumption that due diligence was followed. Even otherwise, theorder of the ITAT would reflect that the case of appellant wasremanded back to the Assessing Officer for fresh adjudication of theissue. Further the liberty was given to the assessee to raise all such issues before the Revenue Authorities and furnish necessaryinformation/evidences in support of his contention. When such righthas already been reserved in favour of the assessee, to raisegrounds, we do not find that any prejudice has been caused and infact the ITAT has principally accepted the contention of the appellantand in furtherance to advance the rules of natural justice, opportunityis given to appellant assessee. 7. In view of the fact, we do not find any substantial question of lawarises for consideration. Accordingly, the appeal is being disposed offwithout any observation on merits of the case. Sd/- Sd/- (Goutam Bhaduri) (Radhakishan Agrawal) JUDGE JUDGE