DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER ITA NO. 225/IND/2015 A.Y.2010-11 DEPUTY COMMISSIONER OF INCOME TAX 1(1) BHOPAL ::: APPELLANT VS GEET KUMAR PABRA BHOPAL ::: RESPONDENT APPELLANT BY SHRI R.A. VERMA RESPONDENT BY SHRI JATIN SAHGAL DATE OF HEARING 11.2.2016 DATE OF PRONOUNCEMENT 2 9 .2.2016 O R D E R PER SHRI B.C. MEENA, AM THIS APPEAL BY THE REVENUE EMANATES FROM THE ORDER OF THE LEARNED CIT(A)-I, BHOPAL, DATED 27.1.2015. DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 2 2. THE ONLY GROUND RAISED IN THIS APPEAL BY THE REVEN UE IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN HOLDIN G THAT THE IMPUGNED ASSESSMENT ORDER DATED 15.3.2013 FOR A.Y . 2010-11 IS INVALID AND HENCE ANNULLED WHEN THE ASSESSMENT ORDER WAS PASSED WELL WITHIN STATUTORY LIMIT I.E. ON 15.03.2013 AND WAS DULY ENTERED ON ITD SYSTEM AND D&CR AND THE ASSESSEE CORRESPONDED TO THE SAME AND NEVER RAISED ANY SUCH OBJECTION BEFORE THE AO AND ALSO COOPERATED IN POST ASSESSMENT PROCEEDINGS. 2. WE HAVE HEARD BOTH THE SIDES. BEFORE US, THE LEARN ED DR SUPPORTED THE ORDERS OF THE ASSESSING OFFICER WH EREAS THE LEARNED COUNSEL FOR THE ASSESSEE RELIED ON THE OR DER OF THE LEARNED CIT(A). 3. AFTER HEARING THE PARTIES, WE FIND THAT THE LEARNED CIT(A) HAS DEALT WITH THE ISSUE AS UNDER :- 3.2 THE BRIEF FACTS OF THE CASE ARE THAT THE APPEL LANT IS AN INDIVIDUAL, PROPRIETOR OF M/S INDRAJEET ASSOCIATES ENGAGED IN DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 3 THE BUSINESS OF TRADING AND ALUMINIUM PARTTION WORK . HE HAD FILED HIS RETURN OF INCOME FOR A.Y. 2010-11 ELECTRO NICALLY ON 09.10.2010 DECLARING TOTAL INCOME OF RS.61,23,410/- . THE CASE WAS SELECTED FOR SCRUTINY BY ISSUING NOTICE U/S 143 (2) OF THE ACT. THEREAFTER, THE ASSESSING OFFICER (THE AO) ALSO ISS UED NOTICE U/S 142(1) OF THE ACT AND AFTER CONSIDERING THE SUBMISS ION OF THE APPELLANT, COMPLETED THE ASSESSMENT U/S 143(3) OF T HE ACT ON 15.03.2013 DETERMINING TAXABLE INCOME AT RS.1,04,00 ,740/-. 3.3 IN APPELLATE PROCEEDINGS, IT WAS SUBMITTED THAT IN THESE TWO GROUNDS, THE APPELLANT HAD OBJECTED THE VALIDIT Y OF THE IMPUGNED ASSESSMENT ORDER. THE APPELLANT HAD FILED CERTIFIED COPY OF THE ASSESSMENT ORDER AND ORIGINAL COPY OF D EMAND NOTICE ISSUED BY THE LD. A.O. AND SERVED ON THE APP ELLANT. IT WAS POINTED OUT THAT THE LD. A.O. HAD NEITHER SIGNED NO R VERIFIED THE ASSESSMENT ORDER, DEMAND NOTICE AND COMPUTATION SHE ET. IT WAS CONTENDED THAT IT WAS NOT A VALID ASSESSMENT OR DER. THEREFORE, THE IMPUGNED ASSESSMENT IS BAD AND IN IN ITIO VOID AND THE SAME MAY PLEASE BE ANNULLED. HE HAD ALSO RE FERRED TO THE DECISION IN THE CASE OF VIJAY CORPORATION, MUMB AI VS. ITO OF DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 4 HONBLE ITAT, BENCH F, MUMBAI DATED 20.01,2012 WH EREIN IT WAS HELD THAT THE PROVISIONS OF SECTION 143(3) OF T HE ACT CONTEMPLATES THAT THE ASSESSING OFFICER SHALL PASS AN ASSESSMENT ORDER IN WRITING AND THE REQUIREMENT OF SIGNATURE OF THE A.O. IS MANDATORY. THE OMISSION TO SIGN THE ORD ER OF ASSESSMENT CANNOT BE EXPLAINED BY RELYING ON THE PR OVISIONS OF SECTION 292B OF THE ACT. HE HAD ALSO REFERRED TO TH E DECISION OF JURISDICTIONAL M.P. HIGH COURT IN THE CASE OF UMASH ANKAR MISHRA VS. CIT (1982) 136 ITR 313 (M.P.) AND THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. APARNA AGENCIES PVT. LTD. WHEREIN IT WAS HELD THAT NOTICE FOR CONTAINING SIGNATURE OF THE ASSESSING OFFICER OR ANY OTHER INC OME TAX AUTHORITY THOUGH ISSUED AND SERVED ON THE ASSESSEE IS NOT DEFECTIVE BUT INVALID. IT IS NOT A DEFECT WHICH CAN BE CURED OR RECTIFIED AND SUCH OMISSION IS NOT COVERED U/S 292B OF THE ACT. HE ALSO REFERRED TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF KALYANKUMAR RAY VS. CIT 191 ITR 630 (SC). HE ALSO REFERRED TO THE FOLLOWING DECISIONS STATING THAT TH E DECISION BY THE HIGHER APPELLATE AUTHORITY IS BINDING ON ALL TH E LOWER COURTS AND TRIBUNALS :- DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 5 (I) CIT VS. ALUMINIUM CORPORATION OF INDIA LTD.(197 1) 85 ITR 167 (SC) (II) SMT. SHREEKUNWAR DEVI DAGA VS. ITO (1972) 85 ITR 451 (BOM) (III) CENTURY SPINNING & MANUFACTURING CO. LTD. VS. CIT (1979) 116 ITR 301 (BOM) (IV) SHENOY & CO. VS. CIT (1985) 15 UTR 178 (SC) (V) SABYASACHI SENGUPTA VS. NAMI NGOPAL DATTA (1990 ) SUPP SCC 315 (GC) (VI) SABIA KHAN VS. STATE OF UP, AIR 1999 SC 2284 (V) M.S.L. PATIL VS. STATE OF MAHARASHTRA (1996) 11 SCC 361 IN VIEW OF THE ABOVE, IT WAS PRAYED THAT THE IMPUG NED ASSESSMENT ORDER MAY PLEASE BE ANNULLED. 3.4. SINCE THE MAIN ISSUE RAISED BY THE APPELLANT W AS THAT THE IMPUGNED ASSESSMENT ORDER AS WELL AS THE DEMAND NOT ICE SERVED ON THE APPELLANT WAS UNSIGNED, WHICH MEANS THAT THE A. O. HAD NOT PASSED ANY ASSESSMENT ORDER AS PER LAW FOR A.Y. 201 0-11, THE A.O. WAS ASKED TO FURNISH FACTUAL REPORT IN THIS CASE. A PHOTOCOPY OF THE IMPUGNED ASSESSMENT ORDER AND NOTICE OF DEMAND U/S 156 OF THE ACT DATED 15.03.2013 FOR A.Y. 2010-11 CLAIMED TO BE REC EIVED BY THE APPELLANT WERE FORWARDED TO THE A.O. THE A.O. WAS R EQUESTED TO SUBMIT THE REPORT AS TO WHETHER THE ASSESSMENT ORDE R AND NOTICE OF DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 6 DEMAND HAD BEEN DULY SIGNED BY THE ASSESSING OFFICE R AND ALSO TO FURNISH COMMENTS ABOUT THE VALIDITY OF THE IMPUGNED ASSESSMENT ORDER DATED 15.03.2013 FOR A.Y. 2010-11. 3.5 THE A.O. SUBMITTED REMAND REPORT VIDE LETT ER F.NO. DCIT- 1(1)/BPL/REMAND REPORT/2014-15 DATED 23.01.2015 STA TING THEREIN AS UNDER :- 2. IN THIS CASE ASSESSMENT ORDER U/S 14(3) OF THE ACT WAS PASSED ON 15.03.2013, DETERMINING THE INCOME OF RS.1,04,00,740/-. 3. IN THIS REGARD THIS IS TO SUBMIT THAT THE CONTEN TION RAISED BY THE ASSESSEE DURING APPELLATE PROCEEDINGS THAT T HE ASSESSMENT ORDER IS INVALID BECAUSE UNSIGNED DEMAND NOTICE AND ASSESSMENT ORDER WAS SERVED UPON THE ASSESSEE I S NOT ACCEPTABLE IN VIEW OF THE FOLLOWING FACTS * THE ASSESSMENT ORDER WAS PASSED WELL WITHIN STAT UTORY TIME LIMIT I.E. ON 15.03.2013 AND IT WAS DULY ENTER ED ON ITD SYSTEM. COPY OF SCREEN SHOT IS ENCLOSED AS ANNE XURE- 1. DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 7 * THE DEMAND WAS ENTERED IN DEMAND AND COLLECTION REGISTER. COPY OF ASSESSMENT ORDER AND DEMAND NOTIC E IS ENCLOSED AS ANNEXURE-2 ON WHICH D&CR NUMBER IS GIVE N. * THE ASSESSEE HAS FILED STAY PETITION REGARDING ST AY OF DEMAND VIDE LETTER DATED 22.04.2013 IN WHICH HE HAS DULY ACKNOWLEDGED THE RECEIPTS OF ASSESSMENT ORDER AND DEMAND NOTICE AND HAS NOT CHALLENGED THE VALIDITY O F ASSESSMENT ORDER (COPY OF SAID APPLICATION ENCLOSED AS ANNEXURE-3). * THE ASSESSEE HAS DULY FILED APPEAL BEFORE HONBLE CIT(A) ACKNOWLEDGING THE RECEIPTS OF ASSESSMENT ORDER AND DEMAND NOTICE AND HAS NOT CHALLENGED THE VALIDITY O F ASSESSMENT ORDER. FROM THE ABOVE, IT IS CLEAR THAT THE ASSESSMENT ORD ER AND DEMAND NOTICE WHICH WAS SERVED ON THE ASSESSEE WAS DULY SIGNED OTHERWISE IN NO CASE, THE ASSESSEE WOULD HAV E FILED STAY PETITION OR APPEAL AGAINST THE ASSESSMENT ORDER. DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 8 3. FURTHER, THE ASSESSMENT ORDER CAN NOT BE SAID IN VALID IF IT IS REMAINED UNSIGNED BY MISTAKE WHILE DEMAND WAS DU LY RAISED, ENTERED IN IOTDS SYSTEM AND D&CR AND THE AS SESSEE CORRESPONDED TO THE SAME. THE UNDERSIGNED FURTHER R ELY UPON SECTION 292B OF INCOME TAX ACT, 2961. THE PROVISION S OF THE SECTIONS ARE AS UNDER :- RETURN OF INCOME, ETC. NOT TO BE INVALID ON CERTAI N GROUNDS :- 292B. NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUM MONS OR OTHER PROCEEDINGS, FURNISHED OR MADE OR ISSUED OR TAKEN O R PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN I N PURSUANCE OF ANY OF THE PROVISIONS OF THIS ACT SHALL BE INVAL ID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAK E, DEFECT OR OMISSION IN SUCH RETURN OF INCOME ASSESSMENT NOTICE , SUMMONS OR OTHER PROCEEDINGS IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. ) 4. IN VIEW OF THE ABOVE, IF BY MISTAKE THE ASSESSME NT ORDER OR DEMAND NOTICE REMAINED UNSIGNED, IT SHALL NOT BE TR EATED AS INVALID. FURTHER, THE ASSESSEE NEVER RAISED ANY SUC H OBJECTION DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 9 BEFORE THE ASSESSING OFFICER AND COOPERATED IN POST ASSESSMENT PROCEEDINGS, THEREFORE, THE ASSESSEE HAS NO RIGHT T O CHALLENGE THE SAME DURING APPELLATE PROCEEDINGS. THEREFORE, IT IS HUMBLY PRAYED THAT THE OBJECTION OF THE ASSESSEE SHOULD BE REJECTED AND ASSESSMENT ORDER SHOULD BE UPHELD. 3.6 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT, REMAND REPORT OF THE A.O. AND FACTS OF THE CASE. IT IS AN ADMITTED FACT THAT THE IMPUGNED ASSESSMENT ORDER DATED 15.03 .2013 FOR A.Y. 2010-11 AS WELL AS NOTICE OF DEMAND U/S 156 OF THE ACT DATED 15.03.2013 WERE NOT SIGNED BY THE LD. ASSESSING OFF ICER. FROM THE REMAND REPORT ALSO, IT IS SEEN THAT THE ASSESSMENT ORDER AND DEMAND NOTICE ON RECORD WERE NOT SIGNED BY THE ASSE SSING OFFICER. IT MAY BE NOTED THAT ASSESMENT IS ONE INTEGRATED PRO CESS INVOLVING NOT ONLY THE ASSESSMENT OF TOTAL INCOME BUT ALSO DETERM INATION OF TAX. THE A.O. HAD TO DETERMINE BY AN ORDER IN WRITING DU LY SIGNED OR INITIALED NOT ONLY THE TOTAL INCOME BUT ALSO THE NE T SUM, WHICH WOULD BE PAYABLE BY THE ASSESSEE FOR THE YEAR UNDER QUEST ION AND THAT THE DEMAND NOTICE U/S 156 TO BE ISSUED IN CONSEQUENCE O F SUCH ORDER. THE ASSESSMENT ORDER AS WELL AS THE NOTICE OF DEMAN D HAS TO BE DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 10 SIGNED BY THE ASSESSING OFFICER BEFORE THE PERIOD O F LIMITATION PRESCRIBED FOR COMPLETION OF ASSESSMENT. THE HONBLE SUPREME COURT IN THE CASE OF SMT. KILASHO DEVI BURMAN AND OTHERS VS. CIT (1996) 219 ITR 214 (SC) O BSERVED THAT AN ASSESSMENT ORDER MUST BE SIGNED BY ASSESSING OFF ICER. UNLESS THE ASSESSMENT ORDER IS SIGNED, IT WILL NOT BE A VALID ASSESSMENT. THE RELEVANT CATCHWORDS AND HEADNOTES OF THIS DECISION ARE AS UNDER :- ASSESSMENT VALIDITY OF ASSESSMENT ASSESSMENT ORDER MUST BE SIGNED INCOME TAX ACT, 1961. S. 143 AN ASSESSMENT ORDER HAS TO BE SIGNED. HELD, ALLOWING THE APPEAL THAT THE HIGH COURT HAD NOT GIVEN DUE IMPORTANCE TO THE FACT THAT UPON THE RECORD PRODUCE D BY THE REVENUE BEFORE THE TRIBUNAL THERE WAS NO SIGNED ASSESSMENT ORDER NOR A SIGNED ASSESSMENT FORM. A VALID ASSESSMENT UPON TH E HINDU UNDIVIDED FAMILY FOR THE ASSESSMENT YEAR 1955-56 WA S CENTRAL TO THE CASE OF THE REVENUE., SINCE IT WAS UNABLE TO ESTABL ISH BY THE PRODUCTION OF A SIGNED ASSESSMENT ORDER FOR THAT YE AR, THAT THERE WAS SUCH A VALID ASSESSMENT, ITS CASE FELL AND THE TRIB UNAL WAS RIGHT IN DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 11 ITS CONCLUSION. THE HIGH COURT WAS IN ERROR IN CONC LUDING THAT THE FINDINGS OF THE TRIBUNAL ON THE RECORDS WERE PERVER SE. THE JUDGMENT AND ORDER OF THE TRIBUNAL WERE VALID. THERE WAS NO VALID ASSESSMENT ON THE HINDU UNDIVIDED FAMILY FOR THE ASSESSMENT YE AR 1955-56. SIMILARLY, THE HONBLE GUJARAT HIGH COURT HAD AN OC CASION TO CONSIDER THIS ISSUE IN THE CASE OF CWT VS. DHANSUKHLAL J. GA JJAR (1999) 237 ITR 534 (GUJ.). IT WAS OBSERVED THAT IT WAS INCUMBE NT UPON ASSESSING OFFICER TO MAKE ORDER IN WRITING ON BOTH ASPECTS OF ASSESSMENT OF NET WEALTH AS WELL AS DETERMINATION O F SUM PAYABLE ON THE BASIS OF SUCH ASSESSMENT AND THE ASSESSMENT ORDER MUST BEAR SIGNATURE OF THE ASSESSING OFFICER. THE RELEVA NT PORTION OF CATCHWORDS AND HEADNOTES OF THIS DECISION ARE REPRO DUCED AS UNDER :- WEALTH TAX NET WEALTH ASSESSMENT ASSESSMENT OF NET WEALTH AS WELL AS DETERMINHATION OF SUM PAYABLE ON BASIS OF SUCH ASSESSMENT - INCUMBENT UPON ASSESSING OFFICER TO MAKE ORDER IN WRITING ON BOTH ASPECTS ORDER MUST BEAR SIGNATURE OF ASSESSING OFFICER SIGNATURE INCLUDES INITIALS OF ASSESSING OFFICER INCUMBENT UPON ASSESSING OFFICER TO PUT HIS SIGNATU RE ON ASSESSMENT OF WEALTH AS WELL AS DETERMINATION OF SUM PAYABLE. DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 12 HELD (I) THAT THE TRIBUNAL ON VERIFICATION OF TH E RECORD HAD FOUND THAT THE COMPUTATION SHEET/ASSESSMENT/FORMS WERE NO T SIGNED BY THE ASSESSING OFFICER. THEREFORE, SINCE THE DETE RMINATION OF THE SUM PAUYABLE WAS NOT MADE BY THE WEALTH TAX OFF ICER BEFORE THE EXPIRY OF THE PERIOD OF LIMITATION LAID DOWN UN DER SECTION 17A OF THE WEALTH TAX ACT, 1957 I.E. MARCH 31, 1979, TH E ASSESSMENT WAS BARRED BY LIMITATION. FROM THE ABOVE, IT IS EVIDENTLY CLEAR THAT THE ASSE SSMENT ORDER HAS TO BE SIGNED BY THE ASSESSING OFFICER AND IF THERE WAS NO SIGNED ASSESSMENT ORDER OR SIGNED NOTICE OF DEMAND U/S 156 OF THE ACT, THERE CANNOT BE A VALID ASSESSMENT FOR THAT ASSESSM ENT YEAR. THE A.O.S SUBMISSION THAT IF BY MISTAKE THE ASSE SSMENT ORDER OR THE DEMAND NOTICE REMAINED UNSIGNED, IT SHALL NOT B E TREATED AS INVALID IN VIEW OF SECTION 292B OF THE ACT, IS ALSO NOT FOUND TENABLE. THIS ISSUE CAME UP FOR CONSIDERATION BEFORE THE HON BLE ITAT, MUMBAI BENCH F IN THE CASE OF VIJAY CORPORATION V S. ITO 12(2)(I), MUMBAI (2012) 18 TAXMANN.COM 88 (MUM) WHEREIN IT WA S HELD THAT ASSESSMENT ORDER WITHOUT SIGNATURE OF ASSESSING OFF ICER IS INVALID DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 13 AND THE PROVISIONS OF SECTION 292B OF THE ACT CANNO T CURE SUCH A DEFECT. THE HEADNOTES OF THIS DECISION ARE REPRODUC ED AS UNDER :- SECTION 143, READ WITH SECTION 292B OF THE INCOME -TAX ACT, 1961 ASSESSMENT GENERAL ASSESSMENT YESAR 2005-06 WHETHER AN ASSESSMENT ORDER SHOLD BE SIGNED BY AN ASSESSING OFFICER AND IN ABSENCE OF SUCH SIGNATURE ORDER OF ASSESSMEN T WOULD BE TREATED AS INVALID HELD, YES WHETHER PROVISIONS OF SECTION 292B CANNOT CURE SUCH A DEFECT HELD, YES (IN FAVO UR OF ASSESSEE) CONSIDERING THE FACTS OF THE CASE AND LEG AL POSITION ON THE ISSUE, I AM OF THE CONSIDERED VIEW THAT THE IMPUGNE D ASSESSMENT ORDER DATED 15.03.2013 FOR A.Y. 2010-11 WAS NOT A V ALID ORDER IN THE ABSENCE OF SIGNATURE BY THE ASSESSING OFFICER. THE REQUIREMENT OF THE SIGNATURE OF THE ASSESSING OFFICER IS A LEGAL REQUI REMENT WHICH CANNOT BE EXPLAINED BY RELYING ON THE PROVISION OF SECTION 292B OF THE ACT. THEREFORE, THE IMPUGNED ASSESSMENT ORDER DATED 15.03.2013 FOR A.Y. 2010-11 IS INVALID AND HENCE ANNULLED. HOWEVER , THE AO IS FREE TO TAKE REMEDIAL ACTION AS PER LAW. DCIT VS. GEET KUMAR PABRA ITA NO. 225/IND/2015 14 4.SINCE THE IMPUGNED ASSESSMENT ORDER ITSELF IS AN NULLED, THE OTHER GROUNDS OF APPEAL ARE NOT ADJUDICATED. 4. THE LEARNED DR COULD NOT CONTROVERT THE FINDINGS OF THE LEARNED CIT RATHER HE HAS ADMITTED THAT THE ASSESS ING OFFICER HAS NEITHER SIGNED THE ASSESSMENT ORDER NOR T HE DEMAND NOTICE. IN VIEW OF THIS, WE FIND NO MERIT IN THIS APPEAL OF THE REVENUE AND DISMISS THE SAME. 5. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. PRONOUNCED IN OPEN COURT ON 29.2. 2016 SD/- SD/- (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER 29.2.2016 DN/-