March 2012
Vijay Corporation v. ITO ITAT ‘F’ Bench, Mumbai Before N. V. Vasudevan (JM) and R. K. Panda (AM) ITA No. 1511/Mum./2010 A.Y.: 2005-06. Decided on : 20-1-2012 Counsel for assessee/revenue: Ashok J. Patil/ Shantam Bose
By Jagdish D. Shah, Jagdish T. Punjabi
Chartered Accountants
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Section 143(3), section 292B — Assessment order without AO’s signature is void. The omission to sign the order of assessment cannot be explained by relying on the provisions of section 292B of the Act.
Facts: The assessment of total income of the assessee-firm was completed u/s.143(3) of the Act by making various additions. While the notice of demand, computation form, etc. attached with the assessment order were signed, the assessment order was not signed by the AO.
The assessee filed an appeal before the CIT(A) challenging the additions and also raised a ground that the order of assessment is not valid in law since the AO did not sign the same. On this objection the CIT(A) called for the remand report from the AO. The AO did not dispute the fact that the assessment order was not signed. The CIT(A) observed that the notice of demand, computation form, etc. attached along with the assessment order were signed and carried proper stamp and seal of the AO. He held that the omission in signing the order cannot invalidate the order and the irregularity is curable in terms of the provisions of section 292B of the Act.
Aggrieved, the assessee preferred an appeal to the Tribunal.
Held:
The case of the assessee is squarely covered by the decision of the Apex Court in the case of Smt. Kilasho Devi Burman (219 ITR 214) (SC), in favour of the assessee. In the absence of a signed order of assessment, the assessment is invalid. The provisions of section 292B cannot come to the rescue of the Revenue. Provisions of section 143(3) contemplate that the AO shall pass an order of assessment in writing. The requirement of signature of the AO is therefore a legal requirement. The omission to sign the order of assessment cannot be explained by relying on the provisions of section 292B of the Act. Tax computation is a ministerial act as observed by the SC in the case of Kalyankumar Ray v. CIT, (191 ITR 634) (SC) and can be done by the office of the AO if there are indications given in the order of assessment. But the notice of demand signed by the office of the AO without the existence of a duly signed order of assessment by the AO cannot be said to be a omission which was sought to be covered by the provisions of section 292B of the Act. If such a course is permitted to be followed, then that would amount to delegation of powers conferred on the AO by the Act. Delegation of powers of the AO u/s.143(3) of the Act is not the intent and purpose of the Act. An unsigned order of assessment cannot be said to be in substance and effect in conformity with or according to the intent and purpose of the Act. The Tribunal held the order of assessment to be invalid.
