JUDGMENT H.K. Seth, J.
1. The assessee, Gopal Rai Shri Ram Arhti, was a dealer, with regard to whom assessment proceedings took place before one Sri T.S. Bharti, Sales Tax Officer, Muzaffarnagar. It appears that on 14th March, 1961, Sri T.S. Bharti drafted an, assessment order as a consequence of which certain refund became due to the dealer. In accordance with certain instructions, Sri Bharti submitted a draft of the assessment order, prepared by him, to the Assistant Commissioner of Sales Tax for approval. Before the Assistant Commissioner of Sales Tax could approve or disapprove the draft, Sri T.S. Bharti was transferred from Muzaffarnagar. Eventually when no approval was received the matter was taken up by Sri R.N. Pradhan, the Sales Tax Officer, who succeeded Sri T.S. Bharti. Sri Pradhan took the view that the draft prepared by Sri Bharti was not a completed assessment order. Accordingly, he proceeded to make a fresh assessment against the dealer. Sri Pradhan completed the assessment by his order dated 16th March, 1964. Being aggrieved by the order passed by Sri Pradhan, the dealer filed an appeal before the Assistant Commissioner (Judicial). It was contended on his behalf that the draft assessment order dated 14th March, 1961, prepared by Sri Bharti was an effective assessment order under Section 7 of the U. P. Sales Tax Act and the subsequent assessment order passed by Sri R.N. Pradhan (the subject-matter of the appeal) was invalid. The plea raised by the dealer was accepted by the Assistant Commissioner (Judicial), who allowed the appeal and made an order setting aside the assessment order dated 16th March, 1964, passed by Sri R. N. Pradhan. The Commissioner of Sales Tax then went up in revision before the Additional Judge (Revisions), Sales Tax. The Judge (Revisions) held that Sri T.S. Bharti had deliberately left the order unsigned. Before signing the order he wanted to obtain the views of his superiors. The order drafted by Sri Bharti, therefore, was not a completed order. An incomplete order could not be considered to be a valid or legal order. Accordingly, Sri Pradhan was fully competent to make the assessment order. In the result, he allowed the revision, set aside the order passed by the Assistant Commissioner (Judicial), and remanded the case to the appellate authority for deciding the appeal on merits. At the instance of the dealer, the Revising Authority, Allahabad, has stated the case and referred the following question for the opinion of this court:
(1) Whether, on the facts and circumstances of the case, the order dated 14th March, 1961, passed by Sri T.S. Bharti, Sales Tax Officer, was a valid order under Section 7 of the U.P. Sales Tax Act read with Rule 41(5) of the Rules framed thereunder, though the same did not bear his signature ?
(2) Whether, on the facts and circumstances of the case, the assessment order dated 16th March, 1964, passed under Section 7 read with Rule 41(5) by Sri R.N. Pradhan, the successor of Sri Bharti was a legal and valid order in view of the fact that an order under the said section and rule had already been passed by Sri T.S. Bharti on 14th March, 1961 ?
2. In this case it is admitted by both the parties that the assessment order dated 14th March, 1961, prepared by Sri T.S. Bharti, had not been signed by him. Before signing the order Sri Bharti wanted to have the order, which involved certain refund, approved by the Assistant Commissioner of Sales Tax and for that purpose he submitted the papers and the draft prepared by him to the Assistant Commissioner. It is obvious that in submitting the draft to the Assistant Commissioner, his intention was to pass the final assessment order in accordance with the approval given by the Assistant Commissioner of Sales Tax. At this stage, we are not concerned either with the legality or the propriety of the procedure adopted by Sri Bharti. All that we find is that while preparing the draft and before finalising the assessment order Sri Bharti had reserved to himself the right to make necessary changes in the assessment order, if it became necessary to do so, in consequence of the directions from the Assistant Commissioner of Sales Tax. Merely because Sri Bharti had prepared a draft it does not mean that he had made an order assessing the dealer.
3. The learned counsel for the dealer relied upon a case of the Punjab High Court in the case of Sewa Singh v. Commissioner of Income-tax [1962] 46 I.T.R. 152, in which a Division Bench of the Punjab High Court considered a case where under the direction issued by the appellate court, the Income-tax Officer had submitted the assessment order made by him to the Assistant Commissioner. The Punjab High Court held that such a direction issued by the appellate court was improper and the assessment order passed by the Income-tax Officer, in these circumstances, was final. In that case the court was not concerned with the question whether the assessment order prepared by the Income-tax Officer was or was not the final expression of opinion by him. As stated earlier, in this reference we are not at all concerned with the legality or propriety of the procedure adopted by the Sales Tax Officer in submitting his draft for the approval of the Assistant Commissioner of Sales Tax. The circumstances appearing in this case make it abundantly clear that the opinion that had been expressed by Sri Bharti in the draft submitted by him was his provisional opinion, which was to be crystallised only after receiving some communication from the Assistant Commissioner. The observations made in the Punjab case, therefore, do not support the argument advanced on behalf of the dealer.
4. The principle governing such cases has aptly been laid down by Alladi Kuppuswami, J., in the case of P. Shankaraiah v. Income-tax Officer A.I.R. 1973 A. P. 84. In that case, after noticing the Supreme Court decision in Surendra Singh v. State of U.P. A.I.R. 1954 S.C. 194, the learned Judge observed that up to the moment the judgment is delivered, judges have the right to change their mind. There is a sort of locus paenitentiae and indeed last minute alterations often do occur. Therefore however, much a draft judgment may have been signed beforehand it is nothing but a draft till formally delivered as the judgment of the court. Only then it crystallises into a full-fledged judgment and becomes operative. Accordingly, so long as Sri Bharti did not intend that the draft order prepared by him on 14th March, 1961, was to be operative as a final assessment order, it merely continued to be a draft. It could become a final assessment order only if it had been signed by Sri Bharti in token of its being pronounced or delivered as a final assessment order. The view which has been expressed by us finds support from a Division Bench decision of this Court in the case of Bihari Lai Shanti Prasad v. Onkar Singh Writ Petition No. 3610 of 1967 decided on 6th August, 1968-(Allahabad High Court), wherein it was observed :
It is admitted between the parties that the assessment orders dictated by Sri R. K. Sharma, Sales Tax Officer, Haldwani, were only drafts of the assessment orders proposed by him and that no final assessment order was passed in either case by that officer. That being so, it is not possible to say that any concluded assessment proceedings had come into existence terminated by an assessment order which had become final.
5. In the result, we are of the opinion that in the circumstances of this case the order dated 14th March, 1961, passed by Sri T.S. Bharti, Sales Tax Officer, was not a valid assessment order under Section 7 of the U. P. Sales Tax Act. Since that was not a valid assessment order, Sri R. N. Pradhan, successor to Sri Bharti, had no other option but to complete the assessment proceedings after making a final assessment order under Section 7 read with Rule 41(5). The order passed by Sri Pradhan could not be said to be invalid on the ground that an assessment order had already been made by his predecessor.
6. In the result, we answer question No. (1) in the negative and in favour of the department. Question No. (2) is answered in the affirmative and in favour of the department. The department would be entitled to receive costs of this reference which we assess at Rs. 100.