In a major decision of Income Tax Appellate Tribunal ( ITAT ) Mumbai ruled that the omission to sign the assessment order by the Assessing Officer cannot be remedied by relying on Section 292B of the Income Tax Act.
Mr. P.J. Padiwala representing the assessee submitted that section 282A of the Act requires that the notice or other documents to be issued by any Income-tax Authority shall be signed. The other documents as referred to in Section 282 of the Income Tax Act, includes summon or requisitions or order or any other communication under the Act. Thus, the Act and the instructions issued by the Board from time to time has emphasized on signing of the order, notice or any other communication issued by the Assessing Officer or any other Income Tax Authority. Thus, the impugned unsigned assessment order communicated to the assessee is invalid and cannot be considered as an order in the eye of law.
Further assessee in support of his submissions referred to the decision of Tribunal In the case of Vijay Corporation vs. ITO, where the assessment order without signature of the Assessing Officer was held to be invalid.
Mr. Ajay Kumar Sharma representing revenue submitted that the additions made in the draft assessment order and the final assessment order are the same. Since, the draft assessment order has been duly signed by the Assessing Officer and the additions made therein have been confirmed by the DRP, no prejudice was caused to the assessee if the final assessment order was not signed by the Assessing Officer. The final assessment order passed by the Assessing Officer in substance and effect was in conformity with the intent and purpose of the Act. Hence, valid as per Section 292B of the Income Tax Act
He submitted that the Assessing Officer after generation of the order signed using his token and sent the order through his login ID using his password to the assessee on the E-mail ID furnished by the assessee. It was sufficient to authenticate generation of the order, the assessment order could not have been sent to the assessee using E-mail ID of the Assessing Officer by any third unauthorised person.
Thus, the order sent by the Assessing Officer through his E-mail ID itself shows that the order was authentic. He vehement argued that the case of the Revenue was squarely covered by the provisions of Section 292B of the Income Tax Act
Lastly, the Revenue has tried to take shelter under section 292B of the Income Tax Act. The said section cures the procedural defects or omissions. The section does not grant immunity from non-compliance with statutory provisions. Non signing of an assessment order was not a procedural flaw that can be cured subsequently.
The order was complete only when it was signed and released. The date on which the order was signed by the assessing officer is the date of order. If Revenue’s contention is accepted and the Assessing officer was allowed to sign the assessment order now considering it to be procedural deficiency, still the order would suffer from the defect of limitation and would be without jurisdiction.
In the case of Vijay Corporation versus ITO, the Co-ordinate Bench in a case where the assessment order served on the assessee was not signed by the assessing officer, however, the two member bench of the tribunal comprising Gagan Goyal ( Accountant member ) and Vikas Aswathy ( Judicial member ) held that requirement of signature of the assessing officer was a legal requirement. The omission to sign the order of assessment cannot be cured by relying on the provisions of Section 2928 of the Income Tax Act and holding the order invalid.
ITAT held the unsigned impugned assessment order served on the assessee Invalid and quash the same.
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