Shri Damodar Agarwal, Shri Ramowatar Agarwal, Smt. Gayatri Agarwal L.H. of Late Basudev Agarwal, Cuttack V. ACIT, Circle- 2(1), Cuttack

CO 1/CTK/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2793 (ITAT-CUTTACK)
• Duration Of Justice: 7 month(s) 7 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 15-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-09-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 07-02-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 43

Judgement Text

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK श्री जाजज माथन, न्याययक सदस्य एवं श्री अरुण खोड़पऩया ऱेखा सदस्य के समक्ष । BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI ARUN KHODPIA, ACCOUNTANT MEMBER I T A No .1 0 6/ C T K/ 2 020 & CO No . 0 1 / C T K/ 2 0 2 2 (नििाारण वषा / As s e s s m e n t Ye a r :2 0 09-2010) ACIT , Ci rc le-2(1 ), Cuttack ..................Re ven ue Versus Shri Dam odar A ga r wal L R. of Late Basude v A gar wal Man galaba g, Ba gh a Man gala Lane, Cuttack-753002 P AN : AB OP A 1919 M ....................As sessee Shri S.N.Sahu, Advocate for the assessee Shri M.K.Gautam, CIT-DR for the Revenue Date of Hearing : 16/09/2022 Date of Pronouncement : 16/09/2022 आदेश / O R D E R Per Bench : This is an appeal filed by the revenue against the order of the CIT(A), Cuttack, dated 28.11.2019 passed in I.T.Appeal No.0640(A)/2016-17, for the assessment year 2009-2010. 2. It was submitted by the ld. CIT-DR that notice u/s.148 of the Act came to be issued on 29.03.2016 in the name of Shri Basudev Agarwal. There was no compliance. Subsequently, on 15.09.2016 one CA, namely, Shri B.K.Tibrewal appeared before the ld. AO and informed that Shri Basudev Agarwal had expired on 06.03.2015 i.e. before issuance of ITA No.106/CTK/2020 & CO No.01/CTK/2022 2 notice u/s.148 of the Act. Shri B.K.Tibrewal, CA had also filed a letter dated 15.09.2016 enclosing the death certificate and a letter addressed to the ITO Ward-2(1),Cuttack, dated 09.04.2015, which contains the signature of staff working in the office of the ITO Ward-2(1), Cuttack. The said letter showed the intimation of the demise of Shri Basudev Agarwal along with death certificate. The said letter dated 09.04.2015 did not contain the seal of receipt by the department. It was the submission that the letter dated 09.04.2015 is questionable as the original is also not available in the file of the AO. The said letter signed by a staff working in the office of ITO Ward-2(1), Cuttack was produced for the first time on 15.09.2016 by the CA Shri B.K.Tibrewal. Consequent to the information, the AO issued a letter to the legal heirs of late Shri Basudev Agarwal on 24.11.2016 intimating about the notice issued u/s.148 of the Act in respect of late Shri Basudev Agarwal and to cooperate in the assessment proceedings. There was no cooperation from the legal heirs side and consequently the assessment came to be completed ex-parte u/s.144 of the Act on 13.12.2016. It was the submission that the ld. CIT(A) annulled the assessment on the ground that the notice has been issued on a deceased assessee. The ld.CIT-DR placed before us a letter mentioning that the PAN of late Shri Basudev Agarwal is still active and no action has been taken to cancel the PAN. The letter is extracted as under :- ITA No.106/CTK/2020 & CO No.01/CTK/2022 3 ITA No.106/CTK/2020 & CO No.01/CTK/2022 4 ITA No.106/CTK/2020 & CO No.01/CTK/2022 5 ITA No.106/CTK/2020 & CO No.01/CTK/2022 6 3. It was the submission that the notice was validly issued and the order of the ld.CIT(A) was required to be reversed. 4. In reply the ld. AR vehemently supported the order of the ld CIT(A) and read out the order of the ld. CIT(A). It was submitted that at page 44 of the paper book the screenshot of the legal heirs request details were available in which late Shri Basudev Agarwal and his PAN has been shown as the details of the deceased assessee. The said screenshot is as follows :- 5. Ld. AR also certified the said screenshot to be true. 6. Further attention was drawn to page 43 which was a screenshot of the legal heir list wherein the deceased PAN is also mentioned and the same has been submitted on 25.01.2016. The copy of the said screenshot is extracted as under :- ITA No.106/CTK/2020 & CO No.01/CTK/2022 7 7. It was the prayer that the order of the ld. CIT(A) is liable to be upheld. 8. We have considered the rival submissions. 9. At the outset, the fact remains that Shri Basudev Agarwal expired on 06.03.2015. This is undisputed fact. A letter has been filed by one CA Shri B.K.Tibrewal on15.09.2016 intimating the AO that Shri Basudev Agarwal is not more and that his PAN is to be closed. Now, the question is when the revenue is now placing before us the screenshot mentioning that the PAN is still active, then how can an assessment be done in the name of legal heirs of the deceased. If the stand of the revenue is that the PAN is active, then the assessment is invalid because the assessment has been done on the wrong persons. The alternative would be the assumption that the AO has been rightly intimated that Shri Basudev Agarwal is no more, in such a situation the option is to initiate fresh assessment in the case of the LRs of the deceased. This should require to issue fresh notice u/s.148 of the Act. This has not been done. Had Shri Basudev Agarwal expired in the course of the assessment proceedings, then the letter issued by the ld. AO on 24.11.2016 would have kept the proceedings alive. But the fact remains that Shri Basudev Agarwal ITA No.106/CTK/2020 & CO No.01/CTK/2022 8 expired on 06.03.2015 much before the notice u/s.148 of the Act was issued being on 29.03.2016. We are also carried by the fact that in the legal heirs list the screenshot which has been extracted the deceased PAN is shown as that of Shri Basudev Agarwal and as per the screenshot the said request has been submitted as early as on 25.01.2016, this is also before the issuance of notice u/s.148 of the Act in the name of late Shri Basudev Agarwal, therefore, it cannot be said that there was an afterthought on the part of the legal heirs of the assessee to circumvent the proceedings. This being so, we are of the view that the order of the ld. CIT(A) is liable to be sustained and we do so. 10. As we have already dismissed the appeal of the revenue, the cross objection filed by the assessee also stands dismissed as infructuous and we are not going into the technicalities raised in the cross objection. 11. In the result, appeal of revenue and the cross objection of the assessee, both are dismissed. Order dictated and pronounced in the open court on 16/09/2022. Sd/- (अरुण खोड़पऩया) (ARUN KHODPIA) Sd/- (जाजज माथन) (GEORGE MATHAN) ऱेखा सदस्य/ ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 16/09/2022 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : 1. अऩीऱाथी / The Appellant- ACIT , Ci rc le-2(1 ), Cuttack 2. प्रत्यथी / The Respondent- Shri Dam odar A ga r wal L R. of Late Basude v A gar wal Man galaba g, Ba gh a Man gala Lane, Cutt ack-753002 ITA No.106/CTK/2020 & CO No.01/CTK/2022 9 आदेशाि ु सार/ BY ORDER, (Assistant Registrar) आयकर अपीऱीय अधिकरण, कटक/ITAT, Cuttack 3. आयकर आय ु क्त(अऩीऱ) / The CIT(A), 4. आयकर आय ु क्त / CIT 5. पिभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack 6. गार्ज पाईऱ / Guard file. सत्यापऩत प्रयत //True Copy//