CHANDRAVADAN SHAH L/H CHHOTALAL TARACHAND SHAH,VALSAD V. ITO, WARD-1, VAPI

ITA 745/SRT/2024

AI Insights

The case revolves around the appeal by Chandravadan Shah, the legal heir of the deceased Chhotalal Tarachand Shah, against the orders of the Income Tax Officer (ITO) and the Commissioner of Income Tax (Appeals) [CIT(A)]. The ITO had reopened the assessment for the year 2011-12 and issued notices and an assessment order in the name of the deceased, leading to an addition of Rs. 4,00,000 as unexplained investment. The CIT(A) dismissed the appeal ex-parte after five years due to non-compliance from the appellant. The tribunal's decision highlighted the legal impossibility of issuing orders in the name of a deceased individual, rendering both the assessment and appellate orders null and void.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 473435 (ITAT-SURAT)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Next Hearing Date: 05-11-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 04-07-2024
• Other Referred Cases: CIT vs. Amarchand N. Shroff, 48 ITR 59 (SC)
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MILAN KAMBLE
• Assessee Lawyers: CHAITALI SHAH
• Keywords: Opportunity of being heard; Unexplained investment
• Section: 147; 148; 144; 250; 48; 139(1); 69A

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI BIJAYANANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.745/SRT/2024 (Assessment Year: 2011-12) (Physical Hearing) Chandravadan Shah, L/h Chhotalal Tarachand Shah, Nehru Street, Vapi, Valsad, Valsad - 396191 Vs. The ITO, Ward – 1, Vapi èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AHPPS9344D (Appellant) (Respondent) Appellant by Ms. Chaitali Shah, CA Respondent by Shri Milan Kamble, Sr. DR Date of Hearing 05/11/2024 Date of Pronouncement 06/11/2024 आदेश / O R D E R PER BIJAYANANDA PRUSETH, AM: This appeal by the assessee emanates from the order passed under section 250 of the Income-tax Act, 1961 (in short, ‘the Act’) by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [in short, ‘CIT(A)’], dated 10.05.2024 for assessment year (AY) 2011-12. 2. Grounds of appeal raised by the assessee are as under: “1. On the facts and in circumstances of the case and in law on the subject, the learned CIT(A) has erred in passing ex-parte order without giving reasonable sufficient opportunity of being heard. 2. On the facts and in circumstances of the case and in law on the subject, the learned CIT(A) has erred in dismissing the appeal without passing speaking order. 3. On the facts and in circumstances of the case and in law on the subject, the learned assessing officer has erred in passing the assessment order u/s 147 in the name of the dead person and by issue and service of the notice in name of dead person. 2 ITA No. 745/SRT/2024/A.2011-12 Chhotalal Tarachand Shah Accordingly, assessing officer has erred in passing invalid assessment order being void ab initio. 4. On the facts and in circumstances of the case and in law on the subject, the learned assessing officer has erred in re-opening assessment u/s 147 by issuing notice u/s 148 of the I.T. Act, 1961. 5. On the facts and in circumstances of the case and in law on the subject, the learned assessing officer has erred in making an addition of Rs.4,00,000/- u/s 69A on account of alleged unexplained investment being cash deposit in the bank account of the assessee. 6. It is therefore prayed that assessment framed u/s 147 r.w.s. 144 may kindly be quashed and/or the addition made by assessing officer may please be deleted. 7. Appellant craves leave to add, alter or delete any ground(s) either before or during the course of hearing of the appeal.” 3. Facts of the case in brief are that assessee had not filed any return of income for AY.2011-12 u/s 139(1) of the Act. The case was reopened and notice u/s 148 was issued on 27.03.2018 through ITBA. Subsequently, various notices were issued but there was no compliance. The Assessing Officer (in short, ‘AO’) noted that assessee had deposited cash of Rs.4,00,000/- on 29.04.2010, 30.04.2010 and 10.05.2010. As the assessee did not file any reply to the noticed issued, he added Rs.4,00,000/- u/s 69A of the Act. He has also added Rs.32,774/- and Rs.37/- being bank interest on savings account and interest on refund. Aggrieved by the order of AO, the assessee filed appeal before CIT(A). The Ld. CIT(A) has passed an ex parte order since assessee did not file any reply and the appeal was pending for five years. He dismissed the appeal of the appellant. 4. Aggrieved by the order of CIT(A), the assessee filed appeal before the Tribunal. The learned Authorized Representative (Ld. AR) of the assessee 3 ITA No. 745/SRT/2024/A.2011-12 Chhotalal Tarachand Shah submitted that the AO has issued notice u/s 148 on 27.03.2018 on a person, who had expired almost five years back on 08.05.2012. He has also passed the order u/s 144 r.w.s. 147 in the name of a dead person. The legal heir and son of the assessee, Shri Chandaravadan Chhotalal Shah, filed appeal against the assessment order. In the statement of facts, the death of the assessee on 08.05.2012 has been clearly mentioned. Despite such information in the Form 35 and statement of facts, the Ld. CIT(A) has passed appellate order u/s 250 in the name of a dead person which is void ab initio. 5. The Learned Senior Departmental Representative (Ld. Sr. DR) for the Revenue relied on the orders of lower authorities. 6. We have heard rival submissions and perused the materials available on record. We shall first decide the jurisdictional issue as to whether the AO and CIT(A) could have passed the order in the name of Shri Chhotalal Tarachand Shah who has expired on 08.05.2012. In the statement of facts, the assessee has mentioned about the dead of the assessee, which is also mentioned at column no.11 of the Form 35. The form has been verified by Shri Chandravadan Chhotalal Shah, legal heir and son of Shri Chhotalal Tarachand Shah. It is further mentioned that on account of the death of the assessee, his last return of income was not filed for AY.2011-12. It is also mentioned that a letter was filed with the jurisdictional AO informing non-taxability of income derived from agricultural activities. It is also stated that none of the family members have received any notice regarding reopening of the case. There is 4 ITA No. 745/SRT/2024/A.2011-12 Chhotalal Tarachand Shah no dispute that both AO and CIT(A) have passed order on a dead person, which is nullity and void ab initio. The Hon’ble Supreme Court in the case of CIT vs. Amarchand N. Shroff, 48 ITR 59 (SC) has held that the individual must be a living person and no assessment can be made on a dead person. Various appellate fora have also held that no order of assessment or reassessment could be made on a dead or non-existing person. Hence, the order passed by the Ld. CIT(A) is a nullity in the eyes of law. Hence, the same is quashed and appeal of the assessee is allowed. 7. In the result, appeal filed by the assessee is allowed. Order is pronounced on 06/11/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (BIJAYANANDA PRUSETH) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat Ǒदनांक/ Date: 06/11/2024 SAMANTA Copy of the Order forwarded to: 1. The Assessee 2. The Respondent 3. The CIT(A) / PCIT 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat "