JUDGMENT
Devan Ramachandran, J.- The appellant calls into question the correctness of the findings and conclusions of the learned Income Tax Appellate Tribunal, Cochin Bench, (‘ITAT’, for short), in ITA No.234/Coch/2023.
2. The most essential facts, as are necessary for our consideration and which are admitted, are that there was a search and seizure operation, under the provisions of Section 132 of the Income Tax Act, 1961 (‘Act’ , for short), conducted by the Authorities in the premises of the appellant; and it is alleged that several incriminating materials were found and seized.
3. The afore led to a notice under Section 153A of the ‘Act’ to be issued to the appellant, relating to the assessment year 2009-10; in response to which, the appellant filed their Returns, making certain additions.
4. The assessment was, thereafter, completed by the Deputy Commissioner of the Income Tax, Kozhikode – who is the Assessing Officer (‘AO’) under Section 153A(a) of the ‘Act’, making further additions.
5. The appellant filed an Appeal before the Commissioner of Income Tax (Appeals), contending that the additions are incorrect and based on no material, much less incriminating material found as a result of search and seizure operation. It was also contended that the approval granted by the Joint Commissioner of Income Tax (‘JCIT’), was given in a mechanical manner, without any application of mind, as is statutorily required.
6. The First Appeal was dismissed; against which, the appellant approached the ITAT, which also rejected their contentions, thus constraining them to approach this Court through this Appeal.
7. We do not propose to answer any issue in this case affirmatively, for the reasons that we will now record.
8. As evident from the impugned order of the ‘ITAT’, three issues were recorded by it, as set out in paragraph 12 thereof, which, for ease of reference, is extracted below:
12. The learned counsel for the assessee contended that; (
i) the issue of notice u/s.153A is void ab initio for want of incriminating material found in the course of search and seizure proceedings; (
ii) granting of approval u/s. 153D by the JCIT is in violation of law as the approval was granted without any application of mind; and (
iii) the AO ought not to have made additions in the absence of any incriminating material placing reliance on the decision of the Hon’ble Supreme Court in the case of
CIT v.
Abhisar Buildwell P. Ltd. [2023] 454 ITR 212 (SC).
9. Before us, Sri.S.Rajeshwar Rao -learned counsel for the appellant, conceded that there is one more issue, which has not been specifically raised before the learned Tribunal, but which he asserted can be impelled at any time, it being a legal issue. He argued that the notice under Section 153A of the ‘Act’ issued by the ‘AO’ is itself vitiated because, it would establish, even on an ex facie reading, that it was not issued by him on his own, but in accordance with the dictates of the ‘JCIT’ . He predicated that this course is contrary to the imperatives of Section 153A of the ‘Act’ and hence illegal, thus entitling his client to raise contentions in such regards as a question.
10. That being said, going by the afore extracted paragraph from the impugned order, the learned Tribunal has noticed three aspects and ought to have considered all of them. However, we notice that the contention that the approval granted by the ‘JCIT’, under Section 153D of the ‘Act’ is vitiated on account of improper application of mind, has not been specifically answered. But when we read the order as a whole, it becomes discernible that the learned Tribunal accepted the contra assertions of the Department that incriminating materials had been obtained in the search and seizure operation; and, consequently, that the first limb of the argument — namely, that the notice under Section 153A is void — was untenable.
11. Though not specifically stated, perhaps, it appears to have gathered the impression that, resultantly, the opinion of the ‘JCIT’ was also based on the incriminating materials and hence, could not be construed as having been issued mechanically.
12. However, in the absence of specific advertence to this issue in the order, we can only make surmises as afore, but cannot be sure why the learned Tribunal did not answer it specifically.
13. Furthermore, the adscititious issue raised before us has also not been tested before the learned Tribunal; though one cannot blame it because it was never raised before it, as is conceded.
14. We are, consequently, of the firm view that every relevant issue, including those recorded by us in this judgment, ought to receive the attention of the learned Tribunal, before this Court can adjudicate upon them as an Appellate Forum.
15. We are persuaded to this view as afore also because, Sri.S.Rajeshwar Rao asserts before us that the order of the ‘JCIT’, granting approval under Section 153D of the ‘Act’ , had been produced before the learned Tribunal; if it be so, then obviously, the inadvertence to the same would render the impugned order without forensic favour.
16. In the afore circumstances, we allow this Appeal and set aside the impugned order in ITA No.234/Coch/2023; consequently, remitting it to the learned Tribunal for fresh consideration, untrammeled by its view and observations earlier, thus leading to an appropriate fresh order as expeditiously as is possible, but not later than six months from the date of receipt of a copy of this judgment.
17. For the above, we allow the appellant to file additional pleadings before the learned ‘ITAT’, raising all issues they require; and it will, thereupon, afford the appellants necessary opportunities in accordance with law, to thus decide the matter finally.
