9911796707
TMI Blog1982 (7) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... essee an order under section 143(3) of the Income-tax Act, 1961 ('the Act'). This order was signed by the ITO. Against Column No. 7 of the printed form, the section and sub-section under which assessment was made was noted as, section 143(3)/185 of the Act. In the concluding portion of the order, the ITO observed as under : " Give credit for pre-paid taxes, if any. Issue documents. " This order was received by the assessee with a covering letter dated 7-3-1980 and this covering letter very clearly pointed out that the order accompanying the forwarding letter was a draft order under section 144B of the Act. 4. On these facts, the assessee took the view that the order forwarded by the ITO having been duly signed by him was a final order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner, therefore, should not have brushed aside the arguments of the assessee and should have given reasoned finding as to whether the said order was an order in accordance with law or not. Since he has failed to do so, the order of the learned Commissioner is bad in law. It was contended that the order of the Commissioner (Appeals) may be cancelled and be may be directed to entertain the appeal as one against order under section 143(3) and dispose it on merits. 5. These submissions were opposed by the revenue very strongly and effectively through M.P. Singh, the junior departmental representative. It was contended on behalf of the revenue that the contentions taken up by the learned counsel for the assessee are untenable and are neither ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal representative relied upon the ratio of the judgments in the cases of Banarsidas Bhanot Sons v. CIT [1981] 129 ITR 488 (MP) and Mrs. Meeraben P. Desai v. Union of India [1981] 130 ITR 922 (Guj.). 8. In the rejoinder, the learned counsel for the assessee pointed out to the judgment of the Punjab and Haryana High Court in the case of CIT v. Sham Lal [1981] 127 ITR 816 and contended that the ratio of the said judgment supports his contentions and his case so as to justify setting aside of the impugned order of the Commissioner (Appeals) and issuance of directions to him that appeal be disposed of on merits. 9. We have given careful considerations to the rival submissions. We are of the considered opinion, after taking into considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een the assessee and the department instead of the refund of Rs. 16,000 as income-tax being made, the assessee finally received a notice under section 22(4) of the 1922 Act, from the ITO in September 1956 calling on him to produce his account books for the assessment year on 15-10-1956. Thereafter there was further correspondence. In August 1957 the assessee received a second notice under section 22(4) calling on him to produce his books on 20-8-1957. After this, the assessee filed a writ petition in the Punjab High Court challenging the jurisdiction of the ITO to take any further proceedings on the notice under section 22(4) mentioned supra on the ground that the assessment had been completed in February 1954. On behalf of the ITO it was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrant for directing the ITO to make an assessment subject to the approval of the IAC or any other superior officer. The directions of the Commissioner to make a draft assessment order and submit it to the IAC for approval before the assessment was finalised was illegal and unwarranted. The so-called draft assessment, therefore, must be regarded as the final assessment of the ITO. 12. The judgment cited by the learned counsel for the assessee was with reference to the powers of the ITO and that of the IAC in the making of an assessment order by the ITO. The assessment under appeal before us is for the year 1977-78 and as the law applicable to this assessment stood on the first day of April of this assessment year, there was a sea change in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o seek the directions of the IAC by forwarding the draft order and the objections to him. A direction issued by the IAC for the guidance of the ITO is binding on him and he has to complete the assessment in the light of such a direction. The Hon'ble, Court has pointed out that whether a defect in the draft order is fatal to the assessment has to be decided having regard to the object behind the issuance of the draft order. 13. The Hon'ble Gujarat High Court in the case of Mrs. Meeraben P. Desai, has succinctly held that the signing of the proposed order itself is of no significance because what is required to be signed is the forwarding letter which authenticates that the accompaniment to the forwarding letter is the draft of the proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
