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TMI Blog1982 (7) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... m, the section and sub-section under which assessment was made was noted as 143(3)/185. In the concluding portion of the order, the ITO observed as under: "Give credit for prepaid taxes, if any. Issue documents." This order was received by the assessee with a covering letter dt. 7th March, 1980 and this covering letter very clearly pointed out that the order accompanying the forwarding letter was draft order under s. 144B of the IT Act, 1961. 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. This view was taken by the assessee on the ratio of the judgment of the Punjab Haryana High Court in the case of S. Sewa Singh Gill vs. CIT (1962) 46 ITR 152 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to do so, the order of the ld. Commr. is bad in law. It was contended that the order of the CIT(A) may be cancelled and he may be directed to entertain the appeal as against order under s. 143(3) and dispose it of on merits. 5. These submissions were opposed by the revenue very strongly and effectively through Shri M.P. Singh, Jr. Departmental Representative. It was contended on behalf of the revenue that the contentions taken up by the ld. Counsel for the assessee are untenable and are neither should on fact nor in law. It was contended that the ratio of the judgment of the Hon'ble Punjab Haryana High Court is not applicable to the facts of the case because that judgment was on the provisions of the IT Act, 1922 and on different set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out to the judgment of Punjab Haryana High Court in the case of CIT vs. Sham Lal (1981) 127 ITR 817 (P H) 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 CIT(A) and issuance of directions to him that appeal be disposed of on merits. 9. We have given careful consideration to the rival submissions we are of the considered opinion after taking into consideration the authorities cited and the facts of the case that the appeal of the assessee has to be dismissed. The judgment of the Hon'ble Punjab Haryana High Court in the case of S. Sewa Singh Gill, was a peculiar set of facts. In that case an assessment was made by the ITO, Contractors C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment year on 15th October 1956. Thereafter there was further correspondence. In August, 1957, the assessee received a second notice under s. 22(4) calling on him to produce his books on 20th August, 1957. After this, the assessee filed a writ petition in Punjab High Court challenging the jurisdiction of the ITO to take any further proceedings on the notice under s. 22(4) mentioned supra on the ground that the assessment had been completed in February, 1954. On behalf of the ITO, it was contended that although an assessment order had been prepared by the ITO in May, 1954, this was only a tentative assessment which had to be approved by the IAC before it could be regarded as final. However, in fact it was never approved and it was deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d unwarranted. The so called draft assessment, therefore, must be regarded as the final assessment of the ITO. 12. The judgment cited by the ld. 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 the procedural law pertaining to the assessments. Sec. 144B was inserted by the Taxation Laws (Amendment) Act, 1975, w.e.f. 1st Jan., 1976 and this section statutorily provides a reference by the ITO of the draft assessment order for approval to the IAC if there is variatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 vs. Union of India Ors., 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 order of assessment. In the case before us, the forwarding letter was duly signed. It authenticated that the accompanied order was a draft assessment order. The fact that such an order bore the signature of the ITO would not make it a final order. In vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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