DATES OF SIGNING OF ASSESSMENT ORDER , COMPUTATION SHEET, DEMAND NOTICE ,PENALTY NOTICE Etc. ARE IMPORTANT – ASSESSMENT ORDER WITH DIRECTIONS OR DECISION MUST PRECEDE ISSUE OF OTHER NOTICES TO BE VALID.

[DEV KUMAR KOTHARI]

PRACTICE SUPPORT AND BRAIN STORMING.

DATES OF SIGNING OF ASSESSMENT   ORDER , COMPUTATION SHEET,   DEMAND NOTICE ,PENALTY NOTICE Etc.  ARE IMPORTANT – ASSESSMENT ORDER WITH DIRECTIONS OR DECISION MUST PRECEDE ISSUE OF OTHER NOTICES TO BE VALID.

Assessment and related procedures:

As assessment order is passed, depending on variations made by the Assessing Officer (AO) in assessment order other documents are to be made by his staff (or by himself).

From the assessment order authority is derived for issue of computation sheet/  order taking into account all variations as to income, head of income, rates of tax, credit for taxes, levy of interest etc.

Therefore , making of and signature of assessment order is first step, thereafter other steps may or may not be taken depending on outcome in assessment order.

It has come to notice that Assessing Officer / Assessment Unit  has followed  casual approach. And it is observed that computation sheet , demand notice, and penalty notice were issued and signed before assessment order was signed.

In computer assisted documentation also this has to be followed  If a computation of tax, interest etc.  is made before assessment order is finalized and signed  then such computation  and demand notice are  not based on an order and is without authority and jurisdiction. Penalty notice issued before assessment order is passed will also be without authority.

If any assessee and his tax consultant come across such a situation , suitable objection must be lodged preferably before filing of appeal.

Draft letter based on some practical situation is given below.

Personal or other information which can be linked are deleted and kept blank  for secrecy.

From  Assssee   .......  

Before:

The Assessment Unit/ Assessing Officer

GOVERNMENT OF INDIA, MINISTRY OF FINANCE ,INCOME TAX DEPARTMENT

................

Sirs,

PAN     Assessment year   – objection for void demand notice and request to vacate the demand.

On reading of assessment related orders and notices issued to me I find about  four  vital  documents  related to assessment and demand for demand for AY 2018-19 issued to me  as follows:

Computation sheet:

Computation sheet has been made  u/s 147 vide DIN ITBA/AST/S/ xxxx  dt. 21.02.2023 and has been signed digitally on date 21.02.2023 23:57:54 IST.

Demand notice u.s. 156 dt.21.02.2023 digitally signed on date 22.02.2023 at  00:29:18 IST bearing DIN & Notice No:  xxxx   

Notice for Penalty under section 274 read with section 271AAC(1) of the Income-tax Act,1961 dt. 21.02.2023 signed on dt. 21.02.2023  13:06:05 IST

Assessment order u/s 147 read with S.144B DIGITALLY SIGNED ON DATE 22.02.2023 at 01:02:01 IST bearing DIN    xxxxx.

From above date wise document listing I find that the computation sheet,  demand notice and notice for penalty all  were made , completed and  signed  before  making ,completing, finalizing  and signing  of assessment order.

Therefore, computation, demand notice and penalty notice all seems void because these have to be made as per order of assessment.

When no assessment order was made how computation sheet and demand notice can be raised legally and validly is major legal aspect.

 In absence of  variations made in course of assessment and   directions or order issued and  authority  given in  assessment order the computation sheet and demand notice are void. Similarly , before assessment is made, how a case for penalty is worked out and notice is issued? That notice is also void.

In the demand notice  AO has  stated as follows in para 1 and 2:

      “1. This is to give you notice that for the assessment year 2018-19 a sum of Rs. xxxx, details of which are given on the reverse, has been determined to be payable by you.

      2. The amount should be paid to the Manager, authorised bank/State Bank of India within 30 days of the service of this notice. A challan is enclosed for the purpose of Payment”

However, there is no details provided on reverse of demand notice or on any part of demand notice.  Challan has also not been enclosed or provided. Therefore,  demand notice is void being issued without authority which is derived  only on  passing the assessment order including order to issue computation sheet and  demand notice.

Whereas it is clear fact that the demand notice has been signed before passing of the assessment order.

In the assessment order additions, variations, are decided, applicable rate of tax is determined and an order is issued for issue of demand notice.

 Therefore passing of assessment order is the first step  a prerequisite and  precondition. Existence of a valid notice is a  sin qua non, (an essential condition; a thing that is absolutely necessary)   and  must be existing complete in all respect,  before making of computation sheet and demand notice.

Without an order of assessment  about variations in amount of income, variations and determination of head of income, rate of tax and special rate or related provisions, order for allowing credits of taxes paid or deemed to be paid, interest chargeable   etc. a computation of income and tax payable, net tax payable and demand to be raised  cannot  be made and a demand notice cannot be issued.

Without a decision made by passing assessment order how computation of income , and tax can be made and demand can be raised is uppermost question of law and procedure.

Therefore, ultimate document for determination and  then initiation for  recovery of  tax payable that is demand notice u/s 156  is without authority , is  not  complete and is not  as per law and also not as per practical aspects of legal and administrative procedures and practices.

 Therefore, the demand notice is void ab initio. Kindly withdraw the demand notice.

Jurisdiction for making computation and demand notice are derived under assessment  order and authority  is gained only on or after  making of assessment order.

Therefore, above mentioned  computation sheet,  demand notice and penalty notice all  are without authority and are void ab initio.

You are requested to make suitable order   and vacate the computation made and demand raised vide the said Demand notice and drop penalty proceeding.

In view of above, I understand that there is no need to file any appeal because without a legal demand notice recovery cannot be made and therefore, there is no purpose of filing an appeal.

Thanking you

Assessee.

Further write up on issue:

Time of signature:

 

It appears in above-mentioned illustrative documents issued by the Assessment Unit that all such documents were digitally signed, all are around midnight – few minutes or hours before or after midnight.

How is it possible that an officer was working in late night made so many documents and signed documents digitally?

From the departmental authorities who suspects most of things and documents brand  as bogus, we can also  learn and apply human probability theory and can express  doubt about genuineness of  events, including signature put thereon.

Is it that digital signature token is kept with clerks or are signature is  auto generated by system and signature is placed by system itself and not by the officer himself?

If that be the case and situation, the documents  can be void for that reason also.

Discussions to this article

[DEV KUMAR KOTHARI]

Recently an appeal on issue of assessment order having been passed/ signed after order of computation and demand notice leading to invalid demand and infructous orders has been allowed by NFAC besides on other grounds also.