Decided on July 28,1982



S.K. Chander, Accountant Member - (1.) THIS appeal by the assessee is directed against the order of the Commissioner (Appeals) dated 24-5-1980 relating to the assessment year 1977-78.
(2.) The issue in this appeal is whether, on the facts and in the circumstances of the case, the learned Commissioner (Appeals) erred in dismissing the appeal of the assessee in limine. The parties have been heard. The learned counsel for the assessee submitted that for the year under appeal, the ITO forwarded to the assessee 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.
(3.) 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 High Court in the case of S. Sewa Singh Gill v. CIT [1962] 46 ITR 152. The assessee contended before us that Section 144B does not prescribe any particular form of a draft order but it is obvious that the draft order cannot be in the form in which it was sent to the assessee by the ITO. Since it was signed, it mentioned the sections of the Act under which it was made and it contained the word 'assessed' and the directions of the ITO to issue documents after giving credit for pre-paid taxes, it was a final order. The learned counsel for the assessee submitted that notwithstanding the ITO's forwarding letter, the character of the order was that of a regular order and a final order. He contended that such an order was, however, invalid and the assessee challenged its validity before the Commissioner (Appeals) However, the Commissioner (Appeals), according to the assessee, has taken it for granted that the appeal had been filed against the ITO's order under Section 144B and, therefore, has summarily dismissed it on the ground that no such appeal was provided in the Act and as such it was infructuous. The learned counsel for the assessee submitted that this view of the learned Commissioner is erroneous because the appeal was filed by the assessee with the clear understanding that the order made by the ITO was an order under Section 143(3) and was no longer a draft assessment order. The learned Commissioner, 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 he may be directed to entertain the appeal as one against order under Section 143(3) and dispose it on merits.;

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