MEERABEN P DESAI Vs. UNION OF INDIA

JUDGEMENT

(1.) THE main grievance of the petitioner in this case is that the draft of the proposed order which the ITO sent under the provisions of s. 144B, sub -s. (1), on March 26, 1980, was not dated or signed so far as the proposed draft order was concerned. The forwarding letter was dated and signed and in the petition itself the prayer which has been made brings out the grievance clearly by mentioning that the draft of the proposed order under s. 144B(1) was neither signed nor dated. The learned Advocate -General who appears for the petitioner contended that since this was not properly authenticated and there was no authenticity about the order which was at this stage the draft of the proposed order, the order itself was non est and, therefore, the subsequent proceedings by the third respondent herein, of passing the final assessment order in terms of that draft order is a nullity and, therefore, the final assessment orders based on the strength of the draft of the proposed order were a nullity.

(2.) THE learned Advocate -General has relied on two decisions of the Calcutta High Court which go to show that a notice under s. 34 of the Indian I. T. Act, 1922, if it was not signed by the ITO, would be an invalid notice and since a valid notice was the basis of jurisdiction for reopening assessment under s. 34, the reassessment would be a nullity. Those decisions are in B. K. Gooyee v. CIT : [1966]62ITR109(Cal) and Bibhuti Bhusan Roy v. ITO : [1978]111ITR84(Cal) . The learned Advocate -General also relied upon the decision of the Supreme Court in Y. Narayana Chetty v. ITO : [1959]35ITR388(SC) . The Supreme Court in that case laid down (headnote) :

(3.) BEFORE we proceed further to decide upon the question urged by the learned Advocate -General, we must point out the scheme of s. 144B of the I. T. Act. Under s. 143(3) of the I. T. Act, hearing has to be given by the ITO before an assessment order is passed. However, a new procedure has been evolved under s. 144B which was inserted by the Taxation Laws (Amendment) Act, 1975, with effect from January 1, 1976, to the effect that :