ITO, Ward - 41(2), Kolkata, Kolkata V. Jaya Rani Dhar, Kolkata

ITA 1406/KOL/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87710 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 09-05-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 06-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEBASISH BANERJEE JCITLD
• Assessee Lawyers: MIRAJ D SHAH LD AR R
• Section: 69

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA ( ) , , [BEFORE HON BLE SHRI MAHAVIR SINGH, JM & HON BLE SHRI SHAMIM YAHYA, AM ] ITA NO. 1406 /KOL/201 0 A.Y 200 3 - 04 I.T.O WARD 41(2), KOLKATA VS. JAYA RANI DHAR PAN: ADMPD 6315N [ APPELLANT ] [ R RESPONDENT ] APPELLANT BY : SHRI DEBASISH BANERJEE, JCIT/LD.DR RESPONDENT BY : SHRI MIRAJ D.SHAH, LD.AR R /DATE OF HEARING : 2 7 - 02 - 2015 /DATE OF PRONOUNCEMENT: 27 - 02 - 2015 / ORDER , SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LD.CIT (A) DAT ED 06 - 04 - 2010 PERTAINING TO ASSESSMENT YEAR 200 3 - 04 . 2. THE ISSUE RAISED BY THE REVENUE IS THAT THE LD.CIT(A) HAS ERRED IN NOT UP HOLDING THE ADDITION TO THE TUNE OF RS. 13,53,000/ - ON THE GROUND OF THE UNDISCLOSED INVESTMENT U/S. 69 OF THE A CT , 1961. 3. WE HAVE HEARD BOTH THE C OUNSEL AND PERUSED THE RECORD. WE NOTE THAT THE ASSESSMENT IN THIS CASE FRAMED ON A DEAD PERSON NAMELY LAT E JAYA RANI DHAR . IN OUR OPINION THE ASSESSMENT ON A DEAD PERSON IS NOT SUSTAINABLE IN LAW . IT IS NOT THE CASE THAT THE AO WAS NOT AWARE THAT THE SAID ASSESSEE WAS DEA D . AS A MATTER OF FACT, THE ASSESSMENT ITSELF HAS BEEN FRAMED ON L AT E JAYA RANI DHAR. HENCE, IT IS CLEAR THAT THE AO DESPITE BEING AWARE THAT THE ASSESSEE IS DEAD DID NOT BRING ON RECORD THE LEGAL HEIR OF THE ASSESSEE AND PROCEEDED TO PASS AN ORDER ON A DEAD PERSON. SINCE THE ORDER HAS BEEN PASSED ON A DEAD PERSON, THE SAME IS NOT A VALID ORDER AND AS SUCH THE SAME CANNOT BE SUSTAINED. HENCE, ON THIS PRELIMINARY ISSUE ITSELF THE APPEAL BY THE REVENUE IS LIABLE TO BE DISMISSED INASMUCH AS TH E ORIGIN AL FOUNDATION OF THE ASSESSMENT IS BAD/ILLEGAL INASMUCH AS THE ASSESSMENT HAS BEEN FRAMED ON A DEAD PERSON. 4. AS REGARDS THE MERIT OF THE CASE THE LD. C OUNSEL OF THE ASSESSEE SUBMITTED THAT THE LD.CIT(A) HAS PASSED A REASONED ORDER THAT THE ADDITION WAS MADE IN THE HANDS OF THE ASSESSE E ON ACCOUNT OF INVESTMENT MADE DURING THE ASSESSMENT YEAR UNDER CONSIDERATION. HOW EVER, HE SUBMITTED THAT AFTER EXAMINING THE R ECORDS THE LD.CIT(A) HAS GIVEN A CLEAR FINDING THAT THE ITA NO . 1406/KOL/10 - B - AM JAYA RANI DHAR 2 AMOUNT FOR MAKING INVESTMENT IN THE ASSESSMENT Y EAR IN QUESTION ORIGINATED FROM INVESTMENT MADE IN EARLIER YEAR. HENCE, THE ADDITION DURING THE CURRENT YEAR IS CLE ARLY NOT SUSTAINABLE. WE FIND THAT TH IS ARGUMENT OF THE LD. C OUNSEL OF THE ASSESSEE ALSO BEARS SUFFICIENT COGENCY . HOWEVER, SINCE THE IMPUGNED ASSESSMENT HAS BEEN MADE ON A DEAD PERSON , THE ASSESSMENT ITSELF IS INV ALID. IN THIS VIEW OF THE MATTER, IN OUR CONSIDERED OPINION THIS APPEAL FILED BY THE REVENUE IS LIABLE TO BE DISMISSED. ACCORDINGLY, THE SAME IS DISMISSED 5 . IN THE RESULT, TH IS APPEAL FILED BY THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 27 02 - 2015 \ SD/ - SD/ - [ , ] [ , ] [ MAHAVIR SINGH , JUDICIAL MEMBER] [ SHAMIM YAHYA, ACCOUNTANT MEMBER / DATED: 27 /02/2015 / COPY OF THE ORDER FORWARDED TO: 1 . /APPELLANT - THE ITO W 41(2) 18 RABINDRA SARANI, PODDAR COURT, 4 TH FL., KOL - 1 . 2 / RESPONDENT : SHRI SHAKT I PADA DHAR L/ H LATE JAYA RANI DHAR 33/4 MURANI PUKUR RD, KOL - 67. 3 . / CIT, 4 . ( )/ CIT(A), 5 . / DR, KOLKATA BENCHES, KOLKATA *PP/SPS [ / TRUE COPY] / BY ORDER, /ASSTT REGISTRAR