2004 (12) TMI 43

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....ght in law in not sending the matter back to the Commissioner of Income-tax (Appeals) to decide the issues on merits when in fact the Commissioner of Income-tax (Appeals) order did not deal with the grounds on merits but allowed the assessee's appeal on a preliminary point? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in upholding the validity of the assessment order when the order sent to the assessee was not signed by the Assessing Officer?" At the outset Mr. Manish J. Shah, the learned advocate for the appellant, states that he does not press question No. 2 as proposed and restricts his submissions in relation to question No. 1 only. Heard Mr. M.J. Shah, the learned advocate for ....

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....ignature of initial Assessing Officer is null and void in view of what is held in the following cases: (a) Kalyankumar Ray v. CIT SLP Civil No. 11270 of 1991 dated August 6, 1991 [1991] 191 ITR 634 (SC); (b) Smt. Kilasho Devi Burman v. CIT [1996] 219 ITR 214 (SC); (c) Sushil Chandra Ghose v. ITO [1959] 35 ITR 379 (Cal); and (d) S. Mubarik Shah Naqshbandi v. CIT [1977] 110 ITR 217 (J&K)." The Commissioner of Income-tax (Appeals) accepted the said preliminary objection and held that "I find that the assessment order is not signed by the Assessing Officer and, therefore, such assessment order is nonexistent in the eyes of law. The order passed under section 143(3) which is unsigned is, therefore, cancelled". In this view of the ....

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....ee-appellant moved a miscellaneous application in which it was stated that on the date of hearing, i.e., March 27, 2003, the Tribunal directed the assessee's counsel to obtain instructions in the matter in the light of the transfer application which was on the file of the Tribunal and adjourned the matter to March 31, 2003. It is averred in the miscellaneous application that the application was by some other firm having the same name, i.e., M/s. Sheth Construction Co., and in the application a request was made to transfer the file to the Rajkot Bench of the Tribunal. When counsel, after going through the application, submitted that the said application pertains to some other assessee, the Tribunal called upon counsel to tender an applicatio....

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....on of the Commissioner of Income-tax (Appeals) to the extent the Commissioner of Income-tax (Appeals) had failed to decide the original grounds of appeal. That the assessee having failed to do so, no second innings should be granted to the assessee. The facts narrated hereinbefore are eloquent and need no repetition. It is apparent that the appellant-assessee had at no stage given up its right of appeal which is available under the statute. In fact the appellant had challenged the addition and disallowance made by the Assessing Officer on the merits before the Commissioner of Income-tax (Appeals), however, the Commissioner of Income-tax (Appeals) having entertained the additional ground regarding validity of the assessment order and uphe....