Sh. Sumit Mehra, Ludhiana V. DCIT, CC-III, Ludhiana

ITA 1468/CHANDI/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7621 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 28-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALIT KUMAR
• Assessee Lawyers: MANJIT SINGH
• Keywords: Set aside
• Section: 147; 148; 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA NO. 1066/CHD/2016 ASSESSMENT YEAR: 2009-10 THE ITO, VS. SH. MOHINDER SINGH, WARD SAMANA, S/O SH. MUKAND SINGH PATIALA THROUGH L/H SH. SATNAM SINGH TEHSIL SAMANA (APPELLANT) (RESPONDENT) APPELLANT BY : SH. MANJIT SINGH RESPONDENT BY : SH. LALIT KUMAR DATE OF HEARING : 12.10.2017 DATE OF PRONOUNCEMENT : 16.10.2017 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE CAPTIONED APPEAL HAS BEEN PREFERRED BY TH E REVENUE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), [HEREINAFTER REFERRED TO AS CIT(A)], PATIALA DATED 22.08.2016 IN RELATION TO THE ASSESSMENT CARRIED OUT U/S 144 R.W.S. 147 OF TH E INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). 2. THE FACTS IN BRIEF ARE THAT ASSESSMENT IN THIS CASE HAS BEEN FRAMED BY THE ASSESSING OFFICER ON A DEAD PERSON. THE ASSESSE E SHRI MOHINDER SINGH 2 HAD EXPIRED ON 09.07.2010 WHEREAS THE STATUTORY NOT ICE U/S 148 OF THE ACT WAS ISSUED ON 11.05.2012 AT A TIME, WHEN, THE ASSES SEE SHRI MOHINDER SINGH WAS NO MORE IN THIS WORLD. THE NOTICE, THUS, HAS BEEN ISSUED AGAINST THE DEAD PERSON. IT HAS BEEN CONTENDED BY LD. COUNS EL FOR THE ASSESSEE BEFORE LD. CIT(A) THAT THE FACT OF DEATH OF DECEAS ED SHRI MOHINDER SINGH WAS DULY BROUGHT TO THE NOTICE OF THE ASSESSING OFF ICER BY WAY OF ENDORSEMENT MADE BY THE WIFE OF THE ASSESSEE SMT. S UKHPAL KAUR ON 17.5.2012 ON THE NOTICE ITSELF ISSUED BY THE ASSESS ING OFFICER U/S 147 OF THE ACT; BUT THE ASSESSING OFFICER, IGNORING THE SAID FACT, PROCEEDED TO FRAME THE ASSESSMENT EX-PARTE U/S 144 OF THE ACT AGAINST THE DEAD PERSON AT RS. 1,04,38,500/-. IT HAS, THEREFORE, BEEN SUBMITTED T HAT THE ASSESSMENT ORDER PASSED U/S 144 WAS VOID AB INITIO SINCE THE ASSESSM ENT COULD NOT HAVE BEEN MADE ON A DEAD PERSON AND, THEREFORE, THE SAME DESE RVES TO BE QUASHED. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS, QUASHED THE EX -PARTE ORDER OF THE ASSESSING OFFICER. 2. THE LD. AR OF THE ASSESSEE AT THE OUTSET HAS INV ITED OUR ATTENTION TO THE VERY FIRST NOTICE OF REOPENING OF THE ASSESSMEN T DATED 11.5.2012 AS REFERRED TO BY THE ASSESSING OFFICER IN THE ASSESSM ENT ORDER IN THE OPENING LINES OF THE ASSESSMENT ORDER AND HAS INVITED OUR A TTENTION TO THE ENDORSEMENT DATED 17.5.2012 MADE ON THE NOTICE ITSE LF, GIVEN BY SMT. SUKHPAL KAUR, WIFE OF THE DECEASE ASSESSEE SHRI MOH INDER SINGH, WHEREIN, SHE HAS POINTED OUT THAT SHRI MOHINDER SINGH HAD DI ED TWO YEARS AGO. HOWEVER, THE ASSESSING OFFICER PASSED EX-PRATE ORDE R AND FRAMED THE ASSESSMENT U/S 144 OF THE ACT. THE LD. AR HAS FURT HER SUBMITTED THAT ASSESSMENT ORDER DATED 30.01.2014 IN THIS CASE WAS PASSED ON THE PERSON 3 WHO HAD DIED ON 9.7.2010 I.E. LONG BEFORE THE PASSI NG OF THE ORDER. A COPY OF THE DEATH CERTIFICATE HAS ALSO BEEN PLACED ON RE CORD. 3. THE LD. DR COULD NOT DENY THE FACTUM OF ENDORSEM ENT GIVEN BY THE FAMILY MEMBER OF THE ASSESSEE INTIMATING THE DEATH. HE, HOWEVER, HAS SUMMITED THAT EVEN OTHERWISE IT WAS THE DUTY OF THE LEGAL HEIRS OF THE ASSESSEE TO GET THEMSELVES IMPLEADED IN THE ASSESSM ENT PROCEEDINGS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS. THE ISSUE B EFORE US IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF RASID LALA VS. ITO, (2017) 77 TAXMAN.COM 39 (GUJA RAT); WHEREIN THE RE- ASSESSMENT PROCEEDINGS WERE INITIATED AGAINST THE D EAD PERSON BY ISSUANCE OF NOTICE U/S 148 OF THE ACT IN THE NAME OF THE DEC EASED PERSON AND DESPITE POINTED OUT BY THE LEGAL HEIR OF THE DECEAS ED PERSON THAT THE ASSESSEE HAD ALREADY EXPIRED, THE ASSESSING OFFICE R PROCEEDED TO FRAME THE ASSESSMENT; THE HON'BLE GUJARAT HIGH COURT HELD TH AT THE IMPUGNED NOTICE ISSUED U/S 148 OF THE ACT WAS LIABLE TO BE QUASHED AND SET ASIDE. THE HON'BLE HIGH COURT FURTHER OBSERVED THAT THE PROVIS IONS OF SECTION 159 OF THE ACT WOULD NOT BE APPLICABLE IN THAT CASE. THE H ON'BLE HIGH COURT OBSERVED THAT EVEN IF, SECTION 159 WAS ATTRACTED, I N THAT CASE ALSO, THE NOTICE WAS REQUIRED TO BE ISSUED AGAINST AND IN THE NAME OF THE HEIR OF THE DECEASED ASSESSEE. IN THESE CIRCUMSTANCES, SECTION 159 OF THE ACT WAS NOT OF ANY ASSISTANCE TO THE REVENUE. THE HON'BLE MADR AS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX M. HEMANATHAN (2016) 68 TAXMAN.COM 22 (MADRAS) HAS HELD THAT WHERE NOTICE I SSUED IN THE NAME OF THE DECEASED ASSESSEE WAS SERVED UPON THE LEGAL HEI R, WHO, THEN, 4 PARTICIPATED IN THE PROCEEDINGS, SUCH PROCEEDING WA S A NULLITY BEING INITIATED AGAINST THE DEAD PERSON AND FURTHER SAID LEGAL HEIR COULD NOT BE DEPRIVED OF RIGHT TO CHALLENGE THE SERVICE OF NOTIC E. FURTHER, THAT THE PROVISIONS OF SECTION 292BB ARE NOT APPLICABLE IN SUCH CASES AS THEY WOULD APPLY ONLY ON TWO TYPE OF PROCEEDINGS, NAMEL Y (I) PROCEEDINGS, IN WHICH, THE ASSESSEE HAD APPEARED; AND (II) IN INQU IRY, IN WHICH, THE ASSESSEE HAD COOPERATED. WHEN, DESPITE BEING PUT ON NOTICE THAT THE NOTICEE WAS DEAD, THE DEPARTMENT CHOSE TO PURSUE VE RY SAME NOTICE, IN SUCH CIRCUMSTANCES, CLAUSE (B) OF SECTION 159(2) OF THE ACT CANNOT BE TAKEN ADVANTAGE OF BY THE DEPARTMENT. THE NOTICE SHOULD H AVE BEEN ADDRESSED TO THE LEGAL HEIR HIMSELF AND NOT TO THE DECEASED PERS ON. THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE PROPOSITION LAI D DOWN IN THE AFORESAID DECISIONS. IN VIEW OF THIS, WE DO NOT FIND ANY INFI RMITY IN THE ORDER OF CIT(A) IN DELETING THE IMPUGNED ADDITIONS. 5. IN THE RESULT, THE PRESENT APPEAL OF THE REVENUE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.10.2017 SD/- SD/- (DR. B.R.R. KUMAR) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16.10.2017 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR