VINOD KUMAR AGARWAL(DECEASED), Jaipur V. ITO, Jaipur

ITA 13/JPR/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5164 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 06-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAGHUVIR SINGH DAGUR CIT DHK
• Section: 143(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ ITA NO. 13/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. SHRI VINOD KUMAR AGARWAL (DECEASED), THROUGH DEEPAK AGARWAL (L/H) 75, GEEJGARH VIHAR, HAWA SARAK, SODALA, JAIPUR. CUKE VS. THE INCOME TAX OFFICER, WARD 2(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AENPA 2352 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MUKESH KHANDELWAL (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAGHUVIR SINGH DAGUR (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04.08.2016. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 25/08/2016. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THE APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-I, JAIPUR DATED 20.11.2013 PERTAINING TO ASSESSMENT YE AR 2008-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. CIT (A) HAS ERRED SERIOUSLY IN LAW IN SUSTAINING PENALTY LE VIED BY THE LD. AO U/S 271(1)(C) OF THE INCOME TAX ACT, 1961. 2. BRIEFLY STATED THE FACTS ARE THAT THE CASE OF TH E ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT UNDER SECTION 143(3) OF THE INC OME TAX ACT, 1961 AND ASSESSMENT WAS FRAMED VIDE ORDER DATED 27.04.2011. WHILE FRAMING THE ASSESSMENT, THE AO MADE ADDITION ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWAL, 2 ITA NO. 13/JP/2014 SHRI VINOD KUMAR AGARWAL (DECEASED) RECOMPUTED LONG TERM CAPITAL GAIN AND ALSO INITIATE D PENALTY PROCEEDINGS. SUBSEQUENTLY THE AO LEVIED THE PENALTY. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT (A), WHO AFTER CONSIDERING TH E SUBMISSIONS, DISMISSED THE APPEAL. 3. NOW THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN BRIEF. THE LD. COUNSEL SUBMITTED THAT THE O RDER IMPOSING THE PENALTY IS A NULLITY IN THE EYES OF LAW AS THE PENALTY ORDER HAS BEEN PASSED AGAINST A DEAD PERSON. IT WAS SUBMITTED THAT THE ASSESSEE HAD EXP IRED ON 24.05.2010 AND THE PENALTY ORDER HAS BEEN PASSED WITHOUT BRINGING THE LEGAL HEIR ON RECORD ON 27.4.2011. IN SUPPORT OF THIS CONTENTION THE LD. C OUNSEL HAS RELIED UPON THE FOLLOWING DECISIONS :- SHRI KISHAN AGARWAL VS. DCIT, SIKAR (ITA NO. 69/JP/2013 OF ITAT JAIPUR.) BHAGWANSINGH SHRIRAMSINGH L/H DINESH BHAGWAN SING H VS. ITO (ITA NO. 1560-1565/MUM/2004 OF ITAT MUMBAI BENCH) CIT VS. CEBON INDIA LTD. 347 ITR 583 (P&H) ANINASH V. VYAS VS. ITO ITA NO. 3538 & 3539/MUM/2010 (ITAT MUMBAI) CIT VS. DALUMAL SHYAMUMAL 276 ITR 62 (MP) ITO VS. SIKANDER LAL JAIN 45 SOT 113 (AGRA TM) VINOD C. GANDHI, LH OF LATE CHANDRAKANT A. GANDHI VS. ACIT 10 TMI 477 (ITAT AHMEDABAD) 3 ITA NO. 13/JP/2014 SHRI VINOD KUMAR AGARWAL (DECEASED) HOWEVER, THE LD. CIT (A) IMPLEADED THE LEGAL HEIR I N HIS ORDER PASSED UNDER SECTION 250. IT WAS CONTENDED THAT THE ISSUE OF NOTICE ITS ELF ON 14.10.2010 WAS ALSO AGAINST A DEAD PERSON. HENCE THE ENTIRE PROCEEDINGS ARE NUL LITY IN THE EYES OF LAW. 4.1. ON THE CONTRARY, THE LD. D/R HAS SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 4.2. WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE M ATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. THE REVENUE HAS NOT CONTROVERTED THE FACT THAT THE NOTICE FOR INITIATIO N OF PENALTY PROCEEDINGS WAS ISSUED AFTER THE DEATH OF SHRI VINOD KUMAR AGARWAL. IT IS ALSO NOT REBUTTED THAT THE PENALTY ORDER WAS PASSED IN THE NAME OF SHRI VINOD KUMAR AG ARWAL ON 27.04.2011 WHEN SHRI VINOD KUMAR AGARWAL HAD ALREADY EXPIRED ON 24. 05.2010. THE COORDINATE BENCH OF THE TRIBUNAL IN ITA NO. 1560-1565(MUM) OF 2004 UNDER PECULIAR FACTS OF THE CASE HAS HELD AS UNDER :- 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE, HOWEV ER, REFERRED TO THE JUDGMENT OF THE HONBLE ALLAHABAD HIGH COURT IN KALAWATI DEVI V. ITO 21 CTR (ALL.) 62, IN WHICH IT HAS BEEN HELD THA T PENALTY PROCEEDS CAN VALIDLY BE TAKEN AGAINST THE LEGAL REPRESENTATI VES FOR FURNISHING OF INACCURATE PARTICULARS BY THE DECEASED. 7. THE UNDISPUTED FACT AVAILABLE ON RECORD CLEARLY FOUR-FOLD (I) THE MATTERS ARE QUITE OLD. THE FIRST ASSESSMENT YEA R INVOLVED IN THE APPEAL IS AS OLD AS ASSESSMENT YEAR 1981-82; (II) T HE ASSESSEE IS NO MORE AND THE LEGAL REPRESENTATIVES ARE FINDING IT D IFFICULT TO EFFECTIVELY DEFEND AGAINST IMPOSITION OF PENALTY; (III) THE AMO UNT OF PENALTY INVOLVED IN EACH YEAR IS LESS THAN RS. 1,00,000/-, EXCEPT IN ONE YEAR WHICH IT IS MARGINALLY HIGHER THAN RS. 1,00,000/-; (IV) THE ADDITIONS ARE BASED ON MERE REJECTION OF EXPLANATION. IT IS QUITE EVIDENT THAT PENALTY HAS BEEN EARNED FOR CONCEALMENT OF INCOME OR FURNIS HING INACCURATE PARTICULARS OF INCOME. IN OTHER WORDS, THE ELEMENT OF PENALTY IS LINKED WITH THE CONTUMACIOUS CONDUCT ON THE PART OF THE AS SESSEE. PENALTIES ARE DIFFERENT AND DISTINCT IN NATURE THAN TAX. WHIL E TAXES ARE THE PRICE 4 ITA NO. 13/JP/2014 SHRI VINOD KUMAR AGARWAL (DECEASED) PAID FOR BUYING CIVILIZATION, PENALTIES ARE LEVIED FOR THE CONTUMACIOUS CONDUCT OF THE WRONG DOER WHO IS DECEASED IN THE CA SE BEFORE US. TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONSIDER IT APPROPRIATE TO CANCEL THE IMPUGNED PENA LTIES. WE ORDER ACCORDINGLY. SINCE THE APPEALS ARE DECIDED ON PECUL IAR FACTS OF THE CASE, THE DECISION MAY NOT BE CONSIDERED AS PRECEDE NT. WE ALSO FIND THAT THE ORDER OF COORDINATE BENCH OF ITAT JAIPUR RELIED BY THE ASSESSEE IN THE CASE OF SHRI KISHAN AGARWAL VS. DCI T IN ITA NO. 69/JP/2013 DECIDED ON 06.05.2016 IS SQUARELY APPLICABLE IN THE CASE OF THE ASSESSEE, WHEREIN IT HAS BEEN HELD THAT THE DECISION OF MUMBAI ITAT BENCH IN THE CASE OF BH AGWANSINGH SHRIRAMSINGH L/H DINESH BHAGWAN SINGH VS. ITO (SUPR A) IS SQUARELY APPLICABLE AS ANY SUM REFERRED IN SECTION 159(1) DOES NOT INCLUDE THE PENALTY PROCEEDINGS ON THE LEGAL REPRESENTATIVE U/S 159(2) OF THE ACT. THEREFO RE, PENALTY IMPOSED ON LEGAL HEIR IS NOT JUSTIFIED. ACCORDINGLY, WE REVERSE TH E ORDER OF THE LD. CIT (APPEALS). IN VIEW OF THE ABOVE, RESPECTFULLY FOLLOWING THE DE CISIONS COORDINATE BENCHES OF THE TRIBUNAL, WE SET ASIDE THE ORDER OF LD. CIT (A) AND DIRECT THE AO TO DELETE THE PENALTY. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 25/08/201 6. SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 25/08/2016. DAS/ 5 ITA NO. 13/JP/2014 SHRI VINOD KUMAR AGARWAL (DECEASED) VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SHRI VINOD KUMAR AGARWAL (DECEAS ED), JAIPUR. 2. THE RESPONDENT- THE INCOME TAX OFFICER, WARD 2(3 ), JAIPUR. 3. THE CIT 4. THE CIT (A) 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 13/JP/2014) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 6 ITA NO. 13/JP/2014 SHRI VINOD KUMAR AGARWAL (DECEASED)