Mednautix Outsourcing Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-2(1)(4), Ahmedabad

CO 66/AHD/2015

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 2602 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 26 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 06-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 14-06-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 11-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Assessment record
• Section: 143(3)

Judgement Text

MA NO. 66 /AHD/201 5 ASSESSMENT Y EAR: 20 07 - 08 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND S.S. GODARA JM ] MA NO. 66 /AHD/201 5 (IN ITA NO. 426 /AHD/201 1 ) ASSESSMENT YEAR: 20 07 - 08 DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1( 3 ), AHMEDABAD. . . . APPLICANT VS. LATE VAS U DEV GORDHANDAS DAPKI . ... ... .. RESPONDENT L/H. RAJAN VASUDEV DAPKI, 63, KAMADHENU COMPLEX, ASE BUILDING, AMBAVADI, AHMEDABAD. [P AN: AA WPD 3173 D ] APPEARANCES BY: JAMES KURIAN FOR THE APPLICANT D.K. PARIKH FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 02 . 1 2 .2016 DATE OF PRONOUNC ING THE ORDER : 06 . 1 2 . 2016 O R D E R PER PRAMOD KUMAR , AM : 1. BY WAY OF TH IS PRESENT MISCELLANEOUS APPLICATION, THE APPLICANT ASSESSING OFFICER POINTS OUT A MISTAKE A PPARENT ON RECORD IN THE ORDER DATED 13.03.2015 PASSED BY THIS TRIBUNAL . THE MISTAKE POINTED OUT BY THE APPLICANT ASSESSING OFFICER IS AS FOLLOWS : - 3.2 THE ORDER PASSED BY THE HON'BLE ITAT IS FACTUALLY INCORRECT AND AGAINST THE DETAILS AVAILABLE ON REC ORD. IT IS SEEN FROM THE ASSESSMENT RECORDS THAT IN THIS CASE, NOTICE U/S.142(1) OF THE I.T. ACT WAS ISSUED ON 03.08.2009 IN RESPONSE TO WHICH THE LEGAL HEIR THROUGH THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE VIZ. MOHAN SHAH, MADE SUBMISSION VIDE LETTER DATED 01.09.2009. IN MA NO. 66 /AHD/201 5 ASSESSMENT Y EAR: 20 07 - 08 PAGE 2 OF 4 THE VERY FIRST PARAGRAPH OF THE SAID SUBMISSION, THE AUTHORIZED REPRESENTATIVE SUBMITTED AS UNDER: 'LEGAL HEIR MR. RAJAN DAPKI OF LATE VASUDEV GORDHANDAS DAPKI HAS BEEN IN RECEIPT OF YOUR ABOVE REFERRED NOTICE AND NOTED THE C ONTENTS OF THE SAME. WE ARE DULY AUTHORIZED (LETTER OF AUTHORITY ENCLOSED HEREWITH MARK AS 'ANNEXURE - 1') AND UNDER THE INSTRUCTION OF LEGAL HEIR MR. RAJAN DAPKI, HEREWITH SUBMIT THE DETAILS AS CALLED BY YOUR HONOUR IN THE NOTICE AS UNDER.....' FROM T HE ABOVE, IT IS CLEAR THAT THE LEGAL HEIR MR. RAJAN DAPKI WAS ATTENDING THE ASSESSMENT PROCEEDINGS FROM THE INITIATION OF THE PROCEEDINGS AND HE HAS ALSO AUTHORIZED SHRI MOHAN SHAH, C.A. AS HIS AUTHORIZED REPRESENTATIVE WHICH CLEARLY SHOWS THAT SHRI RAJAN DAPKI HAD NO OBJECTION FOR ATTENDING THE HEARING AS THE LEGAL HEIR OF THE ASSESSEE. HE HAS NOT ONLY GIVEN AUTHORITY TO HIS AUTHORIZED REPRESENTATIVE BUT ALSO COMPLETED THE ASSESSMENT PROCEEDINGS WITHOUT RAISING ANY OBJECTION FOR THE PROCEEDINGS. THE LEGAL HEIR/AUTHORIZED REPRESENTATIVE OF THE ASSESSEE HAD ATTENDED ALL THE ASSESSMENT PROCEEDINGS AND THIS ISSUE HAS NEVER BEEN RAISED BEFORE THE ASSESSING OFFICER AT ANY POINT OF TIME. FURTHER, THE HON'BLE ITAT HAS WRONGLY MENTIONED THAT THE FACT OF SHRI VASUDEV GORDHANDAS DAPKI HAVING EXPIRED ON 23.12.2007 WAS BROUGHT TO THE NOTICE OF THE A.O. VIDE LETTER DATED 1.9.2009 AND COPY OF DEATH CERTIFICATE WAS ALSO FILED BEFORE HIM, IN REALITY, THE DATE OF EXPIRY OF SHRI VASUDEV G. DAPKI WAS NEVER COMMUNICATED AND THE DEATH CERTIFICATE WAS NEVER FILED BEFORE THE A.O. NOTHING IN THIS REGARD IS AVAILABLE EITHER IN ASSESSEE'S SUBMISSION DATED 01.09.2009 NOR IN THE ASSESSMENT RECORD AND ALSO NOT IN THE ORDER SHEETS. 3.3 THE ORDER PASSED BY THE A.O. CANNOT BE CANCELLED MER ELY ON THE TECHNICAL GROUND THAT THE A.O. HAD FAILED TO PASS THE ORDER IN THE NAME OF THE LEGAL HEIR. IN ANY CASE, IF ANY TECHNICAL ERROR WAS THERE, THAT HAS ALSO BEEN CORRECTED BY THE LD. CIT(A) WHO HAS PASSED THE APPELLATE ORDER IN THE NAME OF LEGAL HEIR AND HAS DISMISSED THIS GROUND OF APPEAL AND HAS FULLY CONFIRMED THE ADDITIONS MADE IN THE ASSESSMENT ORDER ON MERIT. 4. IN VIEW OF THE ABOVE FACTS, IT IS HUMBLY PRAYED THAT THE ORDER OF THE HON'BLE ITAT DATED 13.03.2015 IN ITA NO.426/AHD/2011 IS REQUIRE D TO BE RECALLED AND THE ORDER MAY BE RECTIFIED BY THE HON'BLE TRIBUNAL. THE DIRECTION/AUTHORIZATION OF THE PRINCIPAL COMMISSIONER OF INCOME - TAX (CENTRAL), AHMEDABAD FOR FILING THE MISCELLANEOUS APPLICATION IS ENCLOSED ALONG WITH COPY OF THE IMPUGNED ORDER PASSED BY THE HON'BLE ITAT. 2. BRIEFLY STATED, THE RELEVANT FACTS , TO THE E XTENT ARE NECESSARY FOR DISPOSAL OF THIS RECTIFIC ATION PETITION , ARE AS FOLLOWS. IN THE PRESENT CASE , THE ASSESSING O FFICER NOTED THAT THE ASSESSEE LATE SHRI VASUDEV GORODHANDAS DAPKI HAD EXPIRED ON 23.12.2007 AND THIS FACT WAS BROUGHT TO THE A SSESSING O FFICER DURING THE COURSE OF MA NO. 66 /AHD/201 5 ASSESSMENT Y EAR: 20 07 - 08 PAGE 3 OF 4 ASSESSMENT PROCEEDINGS VIDE LETTER DATED 0 1.09.2009 SUBMITTED BY SHRI MOH AN SHAH, CA. YET , THE ASSESSING OFFICER , INSTEAD OF TAKING STEPS TO BRING A L EGAL HEIR ON RECORD , PROCEEDED TO FRAME ASSESSMENT ON THE DEAD PERSON. IT WAS IN THIS BACKGROUND , FOLLOWING THE DECISION OF THIS T RIBUNAL IN THE CASE OF ITO VS . A KHTER NOORUDDINAHMED SAIYED - ITA NO.837/AHD/2013 ORDER DATED 23.05.2014 , THE TRIBUNAL HELD THAT ASSESSMENT ORDER PASSED UNDER SECTION 143(3) DATED 30.09.2009 IS BAD IN LAW SINCE THE SAME IS PASSED IN THE NAME OF THE ASSESSEE WHO HAD PASSED AWAY . IT IS THIS DECISION WHICH IS SUBJECT MATTER OF RECTIFICATION PROCEEDINGS BEFORE US. 3. WE HAVE H EARD THE RIVAL CONTENTIONS , PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION 4. WE FIND THAT THE APPLICANT HAD DISPUTED THE FACT OF ASSESSEE S DEATH HAVING BEEN COMMUNICATED TO THE A SSESSI NG OFFICER, LETTER DATED 01.09.2009 ADDRESSED TO THE A SSESSING OFFICER, A COPY OF WHICH IS PLACED ON RECORD BEFORE US CLEARLY STATES THE FACT OF ASSESSEE S DEATH. IT CANNOT , THEREFORE , BE SAID THAT THE ASSESSING O FFICER WAS OBLIVIOUS OF THE FACT THAT THE ASSESSEE HAD INDEED PASSED AWAY, AS THERE IS NO DISPUTE ABOUT THE FACT OF LETTER DATED 01.09.2009 HAVING BEEN FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN ANY EVENT, WHAT IS MATERIAL IS THAT ON THE POINT OF TIME WHEN THE ASSESSMENT ORDER WAS FRAM ED IN THE NAME OF SHRI VASUDEV GORDHANDAS DAPKI, THE SAID ASSESSEE WAS REALLY ALIVE. CLEARLY, THEREFORE, THE ASSESSMENT WAS FRAMED ON THE DEAD PERSON SOMETHING WHICH IS IMPERMISSIBLE IN THE SCHEME OF THE ACT AND THERE ARE NUMEROUS JUDICIAL PRECEDENTS TO SUPPORT THIS POSITION. IN THIS VIEW OF THE MATTER, WE SEE NO MERIT IN THE RECTIFICATION PETITION FILED BY THE APPLICANT ASSESSING O FFICER AND WE ACCORDINGLY REJECT THE SAME ON MERITS. MA NO. 66 /AHD/201 5 ASSESSMENT Y EAR: 20 07 - 08 PAGE 4 OF 4 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. PRONOU NCED IN THE OPEN COURT TODAY ON 6 TH DAY OF DECEMBER, 2016 . SD/ - SD/ - S.S. GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) DATED: 6 TH DAY OF DECEMBER , 2016. COPIES TO: (1) THE AP PELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD