Bimla Devi, Rewari V. ITO, Rewari

ITA 1062/DEL/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7648 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC 1
• Next Hearing Date: 25-05-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 29-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V R SONBHADRA
• Section: 143(3); 142(1); 68; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC-I, NEW DELHI BEFORE SH. N.K. SAINI, AM ITA NO. 1062/DEL/2016 ASSTT. YEAR 2007-08 BIMLA DEVI THROUGH L/H. SH. CHET RAM 5174, TOPCHIWARA REWARI VS. ITO WARD-1 REWARI (APPELLANT) (RESPONDENT) PAN NO. AWCPD8207E APPELLANT BY : SH. NAVIN GUPTA, ADV. RESPONDENT BY : SH. V.R. SONBHADR A, SR. DR DATE OF HEARING : 2 5 .05.2016 DATE OF PRONOUNCEMENT : 27 .5.2016 ORDER PER N.K.SAINI, AM : THIS IS AN APPEAL BY THE LEGAL HEIR OF THE DECEASE D ASSESSEE AGAINST THE ORDER DATED 14.12.2015 OF THE LD. CIT(A )-2 , GURGAON. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL : - ITA NO. 1062/DEL/2016 BIMLA DEVI 1. THAT THE ORDER OF LD. CIT(APPEALS) IS AGAINST LAW A ND FACTS. 2. THAT THE LD. CIT(APPEALS) ERRED IN NOT ACCEPTING TH E PLEA OF THE APPELLANT THAT THE NOTICE ISSUED U/S 148 IN THE NAME OF DECEASED SMT. BIMLA DEVI IS NON-EST, AS SHE EXPIRED MUCH BEFORE THE ISSUE OF NOTICE U/S 148. 3. THAT THE LD. CIT (APPEALS) ERRED IN NOT ACCEPTING T HE PLEA OF THE APPELLANT THAT THE LD. AO ERRED IN ASSUMING JUR ISDICTION OVER THE CASE WITHOUT PROPER SERVICE OF NOTICE U/S 148 OF THE ACT. 4. THAT THE LD. CIT(APPEALS) ERRED IN NOT QUASHING THE ASSESSMENT ORDER ALTHOUGH THE NOTICE ISSUED BY THE LD. AO U/S 143(2) OF THE ACT WAS IN THE NAME OF DECEASED SMT. BIMLA DEVI AND ANY NOTICE ISSUED IN THE NAME OF DEA D PERSON IS NOT A VALID NOTICE. 5. THAT THE LD. CIT(APPEALS) ERRED IN NOT QUASHING THE ASSESSMENT ORDER ALTHOUGH THE ASSESSMENT WAS COMPLE TED U/S 144 OF THE ACT BY THE LD. AO WITHOUT PROPER SER VICE OF NOTICE U/S 142(1) OF THE ACT ON ALL THE L/HS OF SMT . BIMLA DEVI. 6. THAT THE LD. CIT(APPEALS) ERRED IN CONFIRMING THE A DDITION OF RS. 10,01,500/- MADE BY THE LD. AO U/S 68 ON ACCOUN T OF CASH DEPOSIT IN THE BANK ACCOUNT. 7. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY OF THE GROUNDS OF APPEAL. 2. FROM THE ABOVE GROUNDS IT IS GATHERED THAT THE ASSE SSEE HAS CHALLENGED THE VALIDITY OF THE INITIATION OF THE AS SESSMENT PROCEEDINGS BY ISSUING THE NOTICE U/S 148/142(1) & 143(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT) ON THE DECEASED PERSON. ITA NO. 1062/DEL/2016 BIMLA DEVI 3. FACTS OF THE CASE IN BRIEF ARE THAT THE AO ON THE BASIS OF AIR INFORMATION ISSUED NOTICE U/S 148 OF THE ACT, DATED 16.3.2012 TO THE ASSESSEE. IN RESPONSE TO THE SAID NOTICE, NO RETURN OF INCOME WAS FILED. THE AO MENTIONED IN THE ASSESSMENT ORDER DA TED 21.03.2013 THAT ANOTHER NOTICE U/S 142(1) DATED 23.7.2012 WAS ISSUED TO THE ASSESSEE AND A RETURN OF INCOME DECLARING AN INCOME OF RS. 29,990/- WAS FILED ON 6.11.2012 BY SHRI CHET RAM, LEGAL HEIR OF THE ASSESSEE. THE AO FRAMED THE ASSESSMENT U/S 144 READ WITH SECT ION 148 OF THE ACT, AT AN INCOME OF RS. 10,01,500/- . THE LEGAL HE IR OF THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND CHALLENGED THE VALIDITY OF THE ASSESSMENT, HOWEVER, THE LD. CIT(A) DID NOT FIND ME RIT IN THE SUBMISSIONS OF THE LEGAL HEIR OF THE ASSESSEE AND C ONFIRMED THE ACTION OF THE AO. NOW THE LEGAL HEIR OF THE ASSESS EE HAS FILED THE APPEAL. 4. THE LD. COUNSEL FOR THE DECEASED-ASSESSEE SUBMITTED THAT THE AO ALTHOUGH WAS KNOWING THAT THE ASSESSEE HAS EXPI RED WHEN THE RETURN OF INCOME WAS FILED BY THE LEGAL HEIR OF THE DECEASED-ASSESSEE ON 6.11.2012, EVEN THEN THE NOTICE U/S 143(2) WAS I SSUED ON 6.11.2012 AND AGAIN ON 05.02.2013 IN THE NAME THE D ECEASED- ASSESSEE I.E. THE DEAD PERSON. IT WAS FURTHER SUBMI TTED THAT THE ANOTHER NOTICES U/S 142(1) OF THE ACT WERE ISSUED ON 05.02.2013 AND 15.03.2013 IN THE NAME OF THE DEAD PERSON. THER EFORE, THE ITA NO. 1062/DEL/2016 BIMLA DEVI ASSESSMENT FRAMED U/S 144 ON THE DEAD PERSON WAS VO ID AB INITIO AND DESERVES TO BE SET ASIDE. 5. IN HIS RIVAL SUBMISSIONS, THE LD. DR SUPPORT ED THE ORDERS OF THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT THE RE TURN OF INCOME WAS FILED BY THE LEGAL HEIR OF THE DECEASED ASSESSE E AND THE ASSESSMENT HAS BEEN FRAMED IN THE NAME OF THE ASSES SEE THROUGH LEGAL HEIR, THEREFORE, THE ASSESSMENT FRAMED BY THE AO WAS VALID. 6. I HAVE CONSIDERED THE SUBMISSIONS OF BOTH TH E PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON T HE RECORD. ON PERUSING THE ASSESSMENT ORDER DATED 21.3.2013 IN TH E NAME OF SMT. BIMLA DEVI, DECEASED THROUGH LEGAL HEIR SHRI CHET R AM, IT WOULD BE CLEAR THAT THE RETURN OF INCOME WAS FILED BY SHRI C HET RAM LEGAL HEIR OF THE DECEASED ASSESSEE ON 6.11.2012, THEREFORE, T HE AO WAS HAVING THE KNOWLEDGE THAT THE ASSESSEE HAD ALREADY EXPIRED WHEN THE RETURN OF INCOME WAS FILED ON 6.11.2012. HOWEVER, T HE NOTICE U/S 143(2) AND U/S 142(1) DATED 05.02.2013 (COPY OF WH ICH IS PLACED AT PAGE NO. 7 AND 8 OF THE ASSESSEES PAPER BOOK) WER E ISSUED IN THE NAME OF SMT. BIMLA DEVI THE DECEASED ASSESSEE WHICH HAD ALREADY EXPIRED. IT IS WELL SETTLED THAT THE ISSUANCE OF NO TICE U/S 143(2) IS THE PRE-REQUISITE CONDITION FOR FRAMING THE ASSESSMENT U/S 143(3) OF THE ACT. HOWEVER, IN THE PRESENT CASE, IT IS NOTICED T HAT THE AO ISSUED THE NOTICES DATED 05.02.2013 U/S 143(2) & 142(1) OF THE ACT IN THE ITA NO. 1062/DEL/2016 BIMLA DEVI NAME OF DEAD PERSON I.E. SMT BIMLA DEVI. THEREFORE THE ASSESSMENT FRAMED ON THE BASIS OF SAID NOTICE WAS VOID- AB INI TIO. 7. IN VIEW OF THE AFORESAID DISCUSSION, THE ASSE SSMENT FRAMED BY THE AO VIDE ASSESSMENT ORDER DATED 21.03.2013, ON THE BASIS OF THE NOTICES ISSUED U/S 143(2) DATED 6.11.2012 AND U/S 1 42(1) & 143(2) DATED 05.02.2013, IS QUASHED. 8. IN THE RESULT, APPEAL OF THE LEGAL HEIR OF THE DECEASED ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 27 /05/2016 ) SD/- (N.K.SAINI) ACCOUNTANT MEMBER DATED : 27/05/2016 *B.RUKHAIYAR* COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NO. 1062/DEL/2016 BIMLA DEVI DATE INITIAL 1. DRAFT DICTATED ON 2 5.05.2016 2. DRAFT PLACED BEFORE AUTHOR 25.05.2016 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.