Approval under Section 151 must reflect independent application of mind; failure to consider jurisdictional High Court decisions constitutes a mistake apparent from the record.

ORDER

PER S.RIFAUR RAHMAN,AM:

1. This misc. application is filed by the assessee against the order of the Tribunal in ITA No.3075/Del/2018 dated 04.01.2022 for AY 2009-10.

2. At the time of hearing, ld. AR of the assessee has only pressed three mistakes in the aforesaid order of the Tribunal at sr.nos.3 to 5 of the misc. application, which are as under :-

“3. Non consideration and adjudication of plea relating to cited provision of sec. 142(3) with reference to cited paper book pages and cited precedents.

4. Non consideration and adjudication of plea relating to applicability of sec. 68 to bank statement with reference to cited precedents and cited provision of sec. 2(12A) of the Act 1961 Act.

5. Non consideration of various cited precedents on issue of validity of approval u/s 151 of the Act incl. Hon’ble Delhi High Court latest decision in case of ESS ADVERTISING 437 ITR 1 and other Jurisdictional Delhi High Court, MP High Court (SLP Dismissed);

Orissa High Court cited precedents.”

3. With regard to issue of validity of approval u/s 151 of the Act, ld. AR of the assessee’s plea is as under :-

1. Brief undisputed facts

a) The information was received from ADIT(Inv) II by office of assessee’s AO on 31.03.2016 (para 82 page 116 ITAT order)

b) Reasons u/s 148(2) were drafted on 31.03.2016 (para 87 page 124) which were sent for sanction u/s 151 to PCIT on 31.03.2016;

c) Relevant sanction u/s 151 as reproduced at para 90 page 126/127 is given on 31.03.2016 with only REMARKS “I AM SATISFIED”

d) Assessee has relied on jurisdictional Delhi High Court decision in case of ESS ADVERTISING 437 ITR 1 (noted at multiple places in ITAT order) in support of contention that stated sanction u/s 151 is mechanical and invalid (same is no where considered in the ITAT order)

e) Assessee was only given proforma of sanction u/s 151 in RTI reply and not any other document was given ;

f) The decision to hold said sanction u/s 151 as valid by ITAT is contained in para 94 ;95 etc pages 131 to page 133 (promptness of action on part of revenue authorities is made as basis)

2. Assessee’s case u/s 254(2) Mistake apparent from record

That in arguments as noted in order of ITAT as multiple placed heavy reliance was placed on LATEST Hon’ble Delhi High Court (jurisdictional) high court decision in case of 437 ITR 1 which is no where considered in entire order of ITAT and same ratio of the high court order is further subsequently followed/applied in chain of latest decisions of hon’ble delhi high court to hold instant approval u/s 151 is invalid;

So on both the basis that there is non consideration of binding on Hon’ble Delhi High Court decision and also subsequent Hon’ble High Court rulings totally counters the view of ITAT on admitted facts, same is clear MISTAKE APPARENT which is requested to be rectified u/s 254(2) of the Act. Non consideration of cited precedents in this regard has caused GRAVE prejudice to assessee in this regard Notably Hon’ble Apex Court in case of DCIT vs Raghuveer synthetics (2017) 394 ITR 1 (SC) has held :(in this case Hon’ble Apex Court has held that once an issue/proposition is laid down by jurisdictional High court then same is not even debatable irrespective of views of other non jurisdictional high court(s)) ; refer Hon’ble Allahabad High Court in case of Mohanlals Antwani vs UOI 449 ITR 476 ; Hon’ble Bombay high court decision in case of HDFC bank ltd vs DCIT (2016) 383 ITR 529 : (2016) 284 CTR 414 on binding effect of jurisdictional high court decisions.

3. Gist of relevant decisions of HON’BLE JURISDICTIONAL DELHI HIGH COURT AND HON’BLE APEX COURT: (present cases Hon’ble Delhi High court/apex court has quashed reopening solely on issue of inadequate /mechanical sanction and present case stands on stronger footing as everything here as happened on 31.03.2016 which is treated as PROMPTNESS of revenue officials where as hon’ble courts has treated it as act of HASTE and NON APPLICATION OF MIND and even assessee was never provided anything with profo