1998 (3) TMI 88 - HC - Income Tax

Summary

Issues Involved:
1. Validity of the fresh assessment.
2. Requirement of a fresh draft order after the original assessment was set aside.
3. Interpretation of remand to correct procedural irregularity under section 144B.
4. Jurisdiction of the Inspecting Assistant Commissioner to issue directions based on the original draft assessment order.

Detailed Analysis:

1. Validity of the Fresh Assessment:
The Tribunal held that the fresh assessment was neither void nor non est, nor a nullity, and not to be annulled. The assessee contended that once the original assessment order was set aside, the draft order on which the Inspecting Assistant Commissioner (IAC) had given directions should be treated as non-existent. However, the court found that the procedural irregularity by the IAC did not invalidate the draft order. The final assessment order was set aside due to the lack of opportunity for the assessee to be heard, not due to any illegality in the draft order itself. The court cited the Supreme Court's decision in Guduthur Bros. v. ITO, which supported the continuation of proceedings from the stage where the illegality occurred.

2. Requirement of a Fresh Draft Order:
The assessee argued that a fresh draft order should have been issued by the new Income-tax Officer (ITO) since the original assessment was set aside. The court disagreed, stating that the remand was only to correct the procedural irregularity committed by the IAC. The court emphasized that the Tribunal's direction was to comply with the procedure under section 144B, which did not necessitate issuing a fresh draft order. The court referenced the Supreme Court's decision in Panchamahal Steel Ltd. v. U. A. Joshi, ITO, clarifying that the ITO's function ceases after forwarding the draft order to the IAC, but this did not imply the need for a fresh draft order upon remand.

3. Interpretation of Remand to Correct Procedural Irregularity:
The Tribunal's interpretation that the remand was to set right the irregularity under section 144B was upheld. The court noted that the remand was specifically to address the lack of opportunity for the assessee to be heard by the IAC. The court found that the Tribunal's direction to comply with section 144B meant allowing the IAC to rectify the procedural error, not starting the assessment process afresh.

4. Jurisdiction of the Inspecting Assistant Commissioner:
The court examined whether the IAC had jurisdiction to issue directions based on the original draft assessment order. The assessee contended that the IAC's directions were invalid as they were based on an earlier draft order. The court found no merit in this contention, stating that the IAC's directions were valid as the draft order itself was not found to be illegal. The court emphasized that the procedural irregularity was the only issue, and once corrected, the IAC's directions were legitimate.

Conclusion:
The court answered all four questions in favor of the Revenue and against the assessee. The fresh assessment was valid, no fresh draft order was required, the remand was correctly interpreted to correct procedural irregularity, and the IAC had jurisdiction to issue directions based on the original draft assessment order. The judgment reaffirmed the procedural correctness and upheld the final assessment order.