{"id":11026,"date":"2020-06-18T18:08:59","date_gmt":"2020-06-18T12:38:59","guid":{"rendered":"https:\/\/corpbiz.io\/learning\/?p=11026"},"modified":"2020-11-09T18:26:00","modified_gmt":"2020-11-09T12:56:00","slug":"search-cases-under-section-153d-of-the-it-act-1961","status":"publish","type":"post","link":"https:\/\/corpbiz.io\/learning\/search-cases-under-section-153d-of-the-it-act-1961\/","title":{"rendered":"Search Cases under Section 153D of the IT Act, 1961: Lawfulness of Prior approval for assessment"},"content":{"rendered":"\n

In\npresent times, the Search Assessment regime under Section 153D<\/strong> of the IT Act, 1961 mandates ‘Section 153A and 153C’<\/strong> of the Income Tax Act, 1961 as the prior\napproval is necessary for a valid assessment. <\/p>\n\n\n\n

In\nthis blog, you will get a precise picture of all the Legality of Prior approval\nof Joint Commissioner for Assessment under Section 153D of the IT Act, 1961, in\n”Search Cases<\/strong>.”<\/p>\n\n\n\n

Overview of Search Cases under\nSection 153D of the IT Act, 1961<\/h2>\n\n\n\n

In\nthe very first instance, the approval of the senior expert witness will ensure\nthat the assessee is not intolerant by the irrelevant addition or undue\nassessment. On the other hand, the top authority’s approval will ensure that proper investigations or inquiries are\ncarried out by the authoritative assessing<\/strong> consultant under Section 153D of\nthe IT Act, 1961. Therefore, the provision provides safeguard to Revenue and\nthe assessee for the mental application\nof a senior officer<\/strong> of the Subdivision\/Responsibility. <\/p>\n\n\n\n

Therefore,\nthis critical provision cannot be treated as merely empty formality laid down\nby the legislature. If the very purpose of obtaining approval is defeated, then\nit will be meant that the superior authorities mechanically grant permission without application of mind<\/strong>. <\/p>\n\n\n\n

What are the Search Case Laws\nconcerning Lawfulness of Prior approval?<\/h2>\n\n\n\n

The\npower to approve is not to be exercised in a usual manner and casually under\nSection 153D of the IT Act, 1961. Moreover, the concerned authority is expected\nto examine the entire material before\nagreeing to the assessment<\/strong> order while approving. Such authorization is\nlegally required to discharge the obligation by application of mind as laid\ndown whenever any statutory requirement is cast upon any authority. <\/p>\n\n\n\n

Important Case Laws are as follows:-<\/strong><\/p>\n\n\n\n

\"Important<\/figure><\/div>\n\n\n\n

Case Law: Sahara India (Firm) v. CIT &\nAnr. (2008) 216 CTR (SC) 303: (2008) 300 ITR 403 (SC): (2008) 7 DTR (SC) 27<\/h3>\n\n\n\n

In\nthis very case, under Section 153D of the IT Act, 1961, the Hon’ble Apex Court\ndiscoursed upon the requirement of previous approval of the Chief Commissioner\nor Commissioner. It is in terms of said provision being inbuilt fortification\nagainst the arbitrary or unjust\nimplementation<\/strong> of authority by the assessing officer casts a very\nsubstantial duty on the said authority to see it that the approval enshrined\nunder Section 153D of the IT Act, 1961. It is not turned into an empty ritual. <\/p>\n\n\n\n

It has pronounced while discussing requirement of prior approval of the Chief Commissioner or Commissioner in respect of provision of section 142(2A) of the Act. <\/p>\n\n\n\n

Case\nLaw: Shreelekha Damani Vs. DCIT (2015) 173 TTJ (Mumbai) 332<\/h3>\n\n\n\n

The\nHon’ble Apex Court, in this case, held that the approval reflects the application of mind to the facts of the case and\nmust be granted only on the basis of material available on record<\/strong>. The view\nmentioned above that assessment enclosed on the asset of mechanical approval is\nbad approach in law. It also gathers strength from numerous judicial decisions\nunder Section 153D of the IT Act, 1961. <\/p>\n\n\n\n

The Hon’ble tribunal canceled the assessment allotment as under the fact that Addl. Commissioner has shown his incapacity to analyses the issues of draft order on merit<\/strong>. The evidently stating that no time is left inasmuch as the draft order was engaged before him on dated 31.12.2010 and the seemed approval was granted on the exact similar day. <\/p>\n\n\n\n

Interpretation of Decision<\/h4>\n\n\n\n