TMI Blog2004 (3) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... Cal) of 1992: "1. On the facts and in the circumstances of the case, whether the learned Tribunal was justified in law in setting aside the penalty order dated April 17, 1989, for an amount of Rs. 1 lakh imposed under section 271B, on the ground that the show cause notice served on the assessee was invalid? 2. Whether, on the facts and in the circumstances of the case, the learned Tribunal was justified in law in holding the view that the deficiencies in the show cause notice are not curable by the provisions of section 292B of the Income-tax Act, 1961, and thereby holding the order of penalty invalid?" The facts giving rise to the aforesaid two questions are that for the assessment year 1985-86, the Assessing Officer formed his opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee does not bear the signature of the Assessing Officer and the space meant for his signature was left blank, though office copy of the notice placed in the file bears the signature of the Assessing Officer allowed the assessee's appeal and set aside the order of penalty. Mr. Prabir Bhowmick, learned counsel for the Revenue, contended that there is an admitted default on the part of the assessee in complying with the requirements mentioned under section 44AB and, therefore, section 271B is clearly attracted. The procedure for imposing penalty is prescribed under section 274 whereby hearing has to be afforded to the petitioner and the same has been complied with. Defect in the show cause notice as alleged by the assessee being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authenticity. Mr. Roy Chowdhury submitted that the judgment of the Madhya Pradesh High Court in Umashankar Mishra v. CIT [1982] 136 ITR 330 is based upon the judgment of this High Court in B.K. Gooyee's case [1966] 62 ITR 109 and is directly on the issue arising in the case herein dealing with the question of the validity of a show cause notice issued under section 271(1)(a) which was unsigned. It was further submitted that the Madhya Pradesh High Court has dealt with the question with respect to the provisions of section 292B having been introduced after the decision in B.K. Gooyee's case [1966] 62 ITR 109 (Cal) and held that the signing of a notice under section 271(1)(a) of the Act is not merely an inconsequential technicality. It was h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignature of the Income-tax Officer who issued it. It was held that service of a valid notice is a condition precedent to the assumption of jurisdiction by the Income-tax Officer to take further proceedings and that all proceedings taken in pursuance of a notice which does not contain the signature of the Income-tax Officer are invalid. It was further held that such irregularity cannot be waived and the question of its validity can be taken at any stage of the proceedings. Their Lordships of the Madhya Pradesh High Court have taken notice of the provisions contained in section 292B which provision was incorporated subsequent to the judgment in B.K. Gooyee's case [1966] 62 ITR 109 (Cal) and have specifically dealt with this question in the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion what has to be seen is that the person that purported to exercise the jurisdiction vested in him had in fact exercised that jurisdiction and signed the said notice. The said test has not been satisfied in the case on hand. Unlike the judgment of this court in Anand and Co. [1994] 207 ITR 418 relied upon by the Revenue the case on hand is not one where the authenticity of the show cause notice is in question. In the case on hand as held by the fact-finding authority the show cause notice has not been signed by any person and the place intended for signature was kept blank. We therefore find no reason to differ with the view of the Tribunal. e accordingly answer both the aforesaid questions in the affirmative against the Revenue and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
