M.Hemanathan, Gudiyatham V. DCIT, Vellore

ITA 1286/CHNY/2014

• Counselvise Citation: 128621714 RSA 2014
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 21-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 13-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: JHARNA B HARILAL
• Section: 143(3); 263

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.1286/MDS/2014 ' (' / ASSESSMENT YEAR : 2009-10 SHRI M. HEMANATHAN, LEGAL HEIR OF LATE M.A. MARGESAN, NO.58, RAJENDRA SINGH STREET, CHUNNAMBUPET, GUDIYATTAM 632 602. PAN : AANPM 9760 E V. THE COMMISSIONER OF INCOME TAX-VIII, CHENNAI - 600 006. (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : MS. JHARNA B. HARILAL, CA ,-*+ . / / RESPONDENT BY : SHRI A.V. SREEKANTH, JCIT 0 . 1$ / DATE OF HEARING : 21.08.2015 2!( . 1$ / DATE OF PRONOUNCEMENT : 11.09.2015 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL BY THE LEGAL REPRESENTATIVE OF THE A SSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF I NCOME TAX, CHENNAI-VIII, CHENNAI, DATED 21.03.2014 AND PERTAIN S TO ASSESSMENT YEAR 2009-10. 2 I.T.A. NO.1286/MDS/14 2. MS. JHARNA B. HARILAL, THE LD. REPRESENTATIVE FO R THE ASSESSEE, SUBMITTED THAT THE ASSESSMENT FOR THE ASS ESSMENT YEAR 2009-10 WAS COMPLETED UNDER SECTION 143(3) OF THE I NCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') BY AN ORDER DATED 23 .06.2011. THE ADMINISTRATIVE COMMISSIONER ISSUED NOTICE UNDER SEC TION 263 OF THE ACT ON 06.09.2013 ON THE GROUND THAT THE ORDER OF THE ASSESSING OFFICER DATED 23.06.2011 IS ERRONEOUS AND PREJUDICI AL TO THE INTERESTS OF REVENUE. REFERRING TO THE COPY OF THE LETTER ADDRESSED TO THE COMMISSIONER ON 12.12.2013, THE LD. REPRESEN TATIVE SUBMITTED THAT THE ASSESSEE SHRI M.A. MARGESAN DIED ON 13.06.2013. THIS LETTER WAS ADDRESSED TO THE COMMI SSIONER IN RESPONSE TO SHOW CAUSE NOTICE ISSUED BY THE COMMISS IONER UNDER SECTION 263 OF THE ACT ON 06.09.2013. THE POWER OF ATTORNEY FILED BEFORE THE COMMISSIONER WAS ALSO ON BEHALF OF THE L EGAL REPRESENTATIVE OF THE DECEASED ASSESSEE SHRI M.A. M ARGESAN. THEREFORE, THE COMMISSIONER WAS WELL WITHIN HIS KNO WLEDGE ABOUT THE DEATH OF THE ASSESSEE BEFORE ISSUING NOTICE UND ER SECTION 263 OF THE ACT. IN SPITE OF THAT, THE COMMISSIONER PAS SED AN ORDER AGAINST THE ASSESSEE, WHO WAS NO MORE EITHER ON THE DATE OF ISSUE OF NOTICE ON 06.09.2013 OR ON THE DATE OF IMPUGNED ORDER ON 21.03.2014. ACCORDING TO THE LD. REPRESENTATIVE, T HE ORDER PASSED 3 I.T.A. NO.1286/MDS/14 BY THE COMMISSIONER AGAINST THE DEAD PERSON IS NULL ITY IN THE EYE OF LAW. THEREFORE, IT CANNOT STAND. 3. ON THE CONTRARY, SHRI A.V. SREEKANTH, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE NOTICE WAS ISSUE D TO THE ASSESSEE AND THE LEGAL HEIRS OF THE ASSESSEE PARTIC IPATED IN THE PROCEEDINGS BEFORE THE COMMISSIONER. THEREFORE, TH E ORDER PASSED BY THE COMMISSIONER IS VALID IN THE EYE OF LAW. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. ADMITTEDL Y, THE SHOW CAUSE NOTICE DATED 06.09.2013 WAS ISSUED IN THE NAM E OF THE DECEASED ASSESSEE SHRI M.A. MARGESAN, WHO DIED ON 1 3.06.2013. THE DEATH OF THE ASSESSEE BEFORE THE DATE OF ISSUE OF NOTICE WAS COMMUNICATED TO THE COMMISSIONER BY WAY OF LETTER D ATED 12.12.2013 IN RESPONSE TO THE SHOW CAUSE NOTICE ISS UED BY THE COMMISSIONER. THE ASSESSEE HAS PLACED ON RECORD TH E COPY OF THE DEATH CERTIFICATE ISSUED BY VELLORE CITY MUNICIPAL CORPORATION AT PAGE 17 OF PAPER-BOOK. AS PER THIS CERTIFICATE, SH RI M.A. MARGESAN DIED ON 13.06.2013. THEREFORE, AS RIGHTLY CONTENDE D BY THE LD. REPRESENTATIVE FOR THE ASSESSEE, THE ASSESSEE SHRI M.A. MARGESAN WAS NOT ALIVE EITHER ON 06.09.2013, THE DATE ON WHI CH THE SHOW 4 I.T.A. NO.1286/MDS/14 CAUSE NOTICE WAS ISSUED OR ON 21.03.2014, THE DATE ON WHICH THE IMPUGNED ORDER WAS PASSED BY THE COMMISSIONER. THE COMMISSIONER HAS NOT TAKEN ANY STEPS TO IMPLEAD THE LEGAL REPRESENTATIVE OF THE ASSESSEE. IT IS WELL SETTLED PRINCIPLE OF LAW THAT AN ORDER PASSED AGAINST THE DEAD PERSON IS NULLITY IN LAW AND IT CANNOT STAND. SINCE THE ASSESSEE WAS NO MORE ON TH E DATE OF PASSING OF THE ORDER DATED 21.03.2014, THE COMMISSI ONER CANNOT RECTIFY THE ORDER BY INCLUDING THE LEGAL HEIR AT TH IS STAGE. IN OTHER WORDS, IT IS NOT A RECTIFIABLE ERROR. SINCE THE O RDER WAS PASSED AGAINST THE DEAD PERSON, IT CANNOT STAND IN THE EYE OF LAW. ACCORDINGLY, THE IMPUGNED ORDER PASSED BY THE COMMI SSIONER AGAINST THE DECEASED SHRI M.A. MARGESAN IS QUASHED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED ON 11 TH SEPTEMBER, 2015 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 4 /DATED, THE 11 TH SEPTEMBER, 2015. KRI. 5 I.T.A. NO.1286/MDS/14 . ,156 76(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 81 /CIT, CHENNAI-VIII, CHENNAI 4. 69 ,1 /DR 5. :' ; /GF.