Gurtej Singh L/H Lt. Avtar Singh, Panchkula V. ITO, Panchkula

ITA 1103/CHANDI/2016

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6881 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 27-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRA KANTA
• Keywords: Reassessment proceedings; Set aside
• Section: 292BB; 148

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, A, CHANDIGARH , !' # $ % &' , '( BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 1103/CHD/2016 / ASSESSMENT YEAR : 2007-08 SHRI GURTEJ SINGH, L/H LATE SH. AVTAR SINGH, VILLAGE JOHLUWALA, P.O. NANAKPUR TEHSIL-KALKA, PANCHKULA THE ITO, WARD- 1, PANCHKULA ./PAN NO: GAWPS9985Q / APPELLANT /RESPONDENT ! /ASSESSEE BY : NONE ' ! / REVENUE BY : SMT. CHANDRAKANTA, SR. DR # $ % /DATE OF HEARING : 03.12.2019 &'() % / DATE OF PRONOUNCEMENT : 01.03.2019 ')/ ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN PREFERRED BY SHRI GURTE J SINGH, LEGAL HEIR OF LATE SHRI AVTAR SINGH, (DECEASED ASSESSEE) AGAINST THE ORDER DATED 29.09.2016 OF THE COMMISSIONER OF INCOME TAX (APPEA LS), PANCHKULA [HEREIN REFERRED TO AS CIT(A)]. 2. APART FROM CONTESTING THE ADDITIONS MADE BY THE LOWER AUTHORITIES ON MERITS, THE APPELLANT HAS TAKEN A LEGAL GROUND REGA RDING THE VALIDITY OF THE ASSESSMENT FRAMED ON THE GROUND OF ISSUING OF NOTIC E U/S 148 OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') FOR REOPE NING OF THE ASSESSMENT IN THE NAME OF THE DEAD PERSON I.E. DECEASED ASSESS EE. ITA NO. 1103/CHD/2016- SH. GURTEJ SINGH, PANCHKULA 2 3. NONE HAS COME PRESENT ON BEHALF OF THE ASSESSEE. WE PROCEED TO DECIDE THE APPEAL AFTER HEARING THE LD. DR. 4. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ORIG INAL ASSESSEE HAD DIED FIVE YEARS AGO FROM THE DATE OF ISSUING OF NOTICE U /S 148 OF THE ACT. EVEN, THE NOTICE U/S 148 OF THE ACT WAS SERVED THROUGH AF FIXATION AND NOT IN A REGULAR MODE OF SERVICE. THE NOTICE WAS ISSUED IN T HE NAME OF THE DECEASED ASSESSEE. THE ISSUE, IN OUR VIEW, IS SQUARELY COV ERED BY THE VARIOUS DECISIONS OF THE HON'BLE HIGH COURTS INCLUDING THE LATEST DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SUMIT BAL KRISHNA GUPTA VS. ACIT IN WRIT PETITION NO. 3569 OF 2018 VIDE ORDER DATED 15.2.2019, WHEREIN, THE HON'BLE BOMBAY HIGH COURT HAS HELD THA T THE ISSUE OF A NOTICE UNDER SECTION 148 OF THE ACT IS A FOUNDATION FOR RE OPENING OF ASSESSMENT. THE SINE QUA NON FOR ACQUIRING JURISDICTION TO REOP EN AN ASSESSMENT IS THAT SUCH NOTICE SHOULD BE ISSUED IN THE NAME OF THE COR RECT PERSON. THIS REQUIREMENT OF ISSUING NOTICE TO A CORRECT PERSON A ND NOT TO A DEAD PERSON IS NOT A MERELY A PROCEDURAL REQUIREMENT BUT IS A C ONDITION PRECEDENT TO THE IMPUGNED NOTICE BEING VALID IN LAW. THUS, A NOTICE WHICH HAS BEEN ISSUED IN THE NAME OF THE DEAD PERSON IS ALSO NOT PROTECTE D EITHER BY PROVISIONS OF SECTION 292B OR 292BB OF THE ACT. THIS IS SO AS THE REQUIREMENT OF ISSUING A NOTICE IN THE NAME OF CORRECT PERSON IS THE FOUND ATIONAL REQUIREMENT TO ACQUIRE JURISDICTION TO REOPEN THE ASSESSMENT. THE HON'BLE HIGH COURT HAS FURTHER OBSERVED THAT SECTION 148 OF THE ACT REQUIR ES THAT BEFORE A PROCEEDING CAN BE TAKEN UP FOR REASSESSMENT, A NOTI CE BE SERVED UPON THE ASSESSEE. THE ASSESSEE ON WHOM THE NOTICE MUST BE S ENT MUST BE A LIVING PERSON I.E LEGAL HEIR OF THE DECEASED ASSESSEE, FOR THE SAME TO BE ITA NO. 1103/CHD/2016- SH. GURTEJ SINGH, PANCHKULA 3 RESPONDED. THAT THIS IN FACT IS THE INTENT AND PUR POSE OF THE ACT. THEREFORE, SECTION 292B OF THE ACT CANNOT BE INVOKE D TO CORRECT A FOUNDATIONAL / SUBSTANTIAL ERROR AS IT IS MEANT SO AS TO MEET THE JURISDICTIONAL REQUIREMENT. THEREFORE, BOTH THE IMP UGNED NOTICES AND THE IMPUGNED ASSESSMENT ORDER REQUIRED TO BE QUASHED A ND SET ASIDE. 5. SIMILARLY, THE HON'BLE DELHI HIGH COURT IN THE C ASE OF RAJENDER KUMAR SEHGAL VS. ITO [2019] 101 TAXMANN.COM 233 ( DELHI) HELD THAT WHERE THE NOTICE SEEKING TO REOPEN ASSESSMENT WAS ISSUED IN THE NAME OF DECEASED ASSESSEE, SINCE SHE COULD NOT HAVE BEEN PA RTICIPATED IN REASSESSMENT PROCEEDINGS, PROVISIONS OF SECTION 292 BB WERE NOT APPLICABLE TO THE ASSESSEES CASE AND AS A CONSEQUENCE, REASSE SSMENT PROCEEDINGS DESERVED TO BE QUASHED. 6. AT THIS STAGE, THE LD. DR HAS POINTED OUT THAT T HE LR OF THE ASSESSEE SHOULD HAVE PROMPTLY COME FORWARD TO APPRISE THE A SSESSING OFFICER THAT THE ASSESSEE HAD DIED SO THAT NOTICE COULD HAVE BEE N ISSUED IN THE NAME OF LEGAL REPRESENTATIVE OF THE ASSESSEE. WE DO NOT F IND ANY FORCE IN THE ABOVE CONTENTION OF THE LD. DR. AS NOTICED ABOVE, T HE NOTICE WAS NOT SERVED THROUGH REGISTERED POST / OR BY REGULAR MODE OF SERVICE. THE NOTICE IN THIS CASE WAS ALLEGEDLY SERVED THROUGH SUBSTITUT ED MODE OF THE SERVICE I.E. BY AFFIXATION OF THE SAME AT THE DOOR OF THE H OUSE OF THE ASSESSEE. HAD THE INCOME-TAX OFFICIAL ACTUALLY GONE TO THE HOUSE OF THE DECEASED ASSESSEE AND ENQUIRED FROM THE VILLAGERS / FAMILY MEMBERS AB OUT THE WHEREABOUTS OF THE ASSESSEE FOR THE PURPOSE OF SERVICE OF THE NOTI CE, THEY COULD HAVE EASILY COME TO KNOW ABOUT THE DEATH OF THE ORIGINAL ASSESS EE AND WOULD HAVE ACCORDINGLY APPRISED THE ASSESSING OFFICER. ITA NO. 1103/CHD/2016- SH. GURTEJ SINGH, PANCHKULA 4 7. IT IS NOT BELIEVABLE THAT THE REVENUE OFFICIALS HAD VISITED THE HOUSE OF THE ASSESSEE AND THEY COULD NOT GET THE INFORMATION ABOUT THE DEATH OF THE ASSESSEE DESPITE AFFIXATION OF THE NOTICE WHICH IS ALSO REQUIRED TO BE WITNESSED BY SOME INDEPENDENT / RESPECTABLE OF THE VILLAGE. 8. IN VIEW OF THIS, THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SUMIT BA LKRISHNA GUPTA VS. ACIT (SUPRA) AND OF THE HON'BLE DELHI HIGH COUR T IN RAJENDER KUMAR SEHGAL VS. ITO (SUPRA). THE IMPUGNED NOTICE ISSUE U/S 148 OF THE ACT, THEREFORE, IS HELD AS INVALID AND THE CONSEQUENT ASSESSMENT PROCEEDINGS, ARE, THEREFORE, LIABLE TO BE QUASHED. WE ORDER AC CORDINGLY. IN THE RESULT, THE APPEAL OF THE APPELLANT IS HEREB Y ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.03.2019 SD/- SD/- ( # $ % &' / ANNAPURNA GUPTA) '( / ACCOUNTANT MEMBER ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 01.03.2019 .. '+ ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. # / / CIT 4. # / ( )/ THE CIT(A) 5. -01 2 , % 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7$ / GUARD FILE '+ # / BY ORDER, 8 ' / ASSISTANT REGISTRAR ITA NO. 1103/CHD/2016- SH. GURTEJ SINGH, PANCHKULA 5