TMI Blog1991 (8) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed by the surviving partners subsequently and to complete the assessment on the firm ? 2. Whether the power to redo the assessment revived in the Income-tax Officer who had become functus officio on making the original assessment, on the Appellate Assistant Commissioner annulling the assessment order even though the Appellate Assistant Commissioner had annulled the assessment without a direction to redo the assessment ?" The assessee is a firm ; it was dissolved on June 30, 1972. One of its partners died in January, 1975. In the meanwhile, no return was filed by the assessee and there was no order of assessment for the assessment years 1972-73 and 1973-74. Hence, on February 6, 1975, the Income-tax Officer issued a notice under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier order of the Income-tax Officer was vitiated by an irregularity in entertaining the return filed by a non-partner and hence the consequential assessment order was void ; when the said order was cancelled, it was not necessary for the appellate authority to remand the proceedings ; even otherwise, the Income-tax Officer can revive the proceedings and proceed to make a fresh order. The Appellate Tribunal further held that every notice to, each of the living partners is an independent proceeding and such a proceeding was still pending without culminating in an order of assessment. Hence, these references. Sri K. R. Prasad, learned counsel for the assessee, contended that the Income-tax Officer became functus officio on the making of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was capable of being transferred ; it was contended that the said order of the Additional Income-tax Officer was an invalid order and hence did not conclude the proceedings. The Supreme Court held, at page 286: "Even if it be accepted that the order made by the Additional Income-tax Officer in the present case was invalid, its effect cannot be that the proceedings before the Additional Income-tax Officer must be held to have continued after that order was made by him. Even an invalid order terminating proceedings has the effect of terminating them ; and in such a case, the appropriate method for correcting the illegality committed is to have that order vacated by an appellate or other higher authorities having jurisdiction to intervene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e even if there be no proceedings pending for assessment of tax and the purpose of the transfer may simply be that all future proceedings are to take place before the officer to whom the case of the assessee is transferred", because, the word "case" included concluded proceedings also. Even accepting Sri Prasad's contention in its totality, the resultant position cannot enure to the assessee's benefit ; no finality was attained in the proceedings by the ultimate order, which held that no effective order of assessment can be, made against the firm on the basis of an invalid return, because the return was filed by an incompetent person. In other words, as against the firm and its living partners, there was no order at all. The proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary because the competent assessing authority can always make a proper order provided further proceedings are not barred by any rule of limitation. An order of assessment may be invalid, voidable or void. Technically, all orders require to be set aside, as otherwise, the assessee always faces the threat of their enforcement. Cases do exist wherein, if the order is entirely void, its enforcement may be resisted collaterally also. But, in all these cases, uniformly, without exception, it cannot be said that the assessing authority lacks competence to make a fresh order. The competence to make a fresh order of assessment consequent upon the cancellation of an earlier order of assessment by the appellate authority depends upon the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
