Tahar Singh (Through L/H Sunita Kumari ), Gurgaon V. ITO WARD - 42(3), New Delhi

ITA 1654/DEL/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2436 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 05-10-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRAKASH DUBEY
• Assessee Lawyers: I P BANSAL SH VIVEK BANSAL
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH.KULDIP SINGH, JUDICIAL MEMBER (THROUGH VIDEO CONFERENCING) ITA NO.1654/DEL/2020 ASSESSMENT YEAR: 2007-08 TAHAR SINGH (THROUGH L/H SUNITA KUMARI) 115/22, 11 GANDHI NAGAR, GURGAON, HARYANA PAN NO. CFGPS0592J VS ITO WARD- 42 (3) NEW DELHI (APPELLANT) (RESPONDENT) APPELLANT BY SH. I.P. BANSAL, ADVOCATE SH. VIVEK BANSAL, ADVOCATE RESPONDENT BY SH. PRAKASH DUBEY, SR. DR. DATE OF HEARING: 23/06/2021 DATE OF PRONOUNCEMENT: 23/06/2021 ORDER PER N. K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST T HE ORDER OF THE CIT(A)-14, NEW DELHI DATED 11.03.2020 PERTAININ G TO A.Y. 2007-08. 2 2. THE SUBSTANTIAL GRIEVANCE OF THE ASSESSEE READ A S UNDER :- 1. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS ERRED IN LAW AS MUCH AS IN FACT IN DISMISSING THE A PPEAL FILED BY THE LEGAL HEIR OF THE ASSESSEE ON THE GROUND THAT DELAY IN FILING THE APPEAL IS NOT CONDONABLE DESPITE THE FACT THAT IT WAS BROUGHT TO HIS NOTICE THAT LEGAL HEIRS OF THE DECEASED ASSESSEE DID NOT KNOW A BOUT THE ASSESSMENT ORDER HAVING BEEN PASSED IN THE CASE OF THE DECEASED FATHER AND IT CAME INTO THE NOTICE OF THE LEGAL HEI RS ONLY ON RECEIPT OF RECOVERY NOTICE. IN THE INTEREST OF JUSTICE LD. CIT (A) OUGHT TO HAVE ADMITTED THE APPEAL AND DECIDE THE SAME ON MERITS. 2. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT THE ASSESSMENT FRAMED BY THE AO WAS BAD IN LAW IN AS MUCH AS NOTICE U/S 148 OF THE ACT WAS NOT SERVED. IN THE ASSESSMENT ORDER THE AO HAS OBSERVED THAT THE NOTIC E WAS ISSUED BUT IT HAS NOT BEEN STATED THAT ANY SUCH NOTICE WAS SERVED . THEREFORE, ASSESSMENT ITSELF IS BAD IN LAW ON ACCOUNT OF JURIS DICTIONAL ISSUE AND THUS, ASSESSMENT ORDER IS REQUIRED TO BE HELD INVAL ID. THE ASSESSMENT ORDER IS ALSO INVALID ON THE GROUND THAT THE AO DID NOT COMPLY WITH THE MANDATORY JURISDICTIONAL REQUIREMENTS LAID DOWN IN SECTION 147 TO 151 OF THE ACT AND ASSESSMENT FRAMED IS CONTRARY TO THE SE PROVISIONS. 3 3. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT MERE KNOWLEDGE OF SALE OF PROPERTY BY THE DECEASED FATHER CAME TO THE NOTICE OF AO DURING THE COURSE OF EARLIER ASSESSMENT YEAR, I.E. AY 2006-07 ITSELF CANNOT CONS TITUTE A GROUND TO REOPEN UNLESS AO APPLIES HIS MIND ON THE INFORMATIO N AND ONLY AFTER ASCERTAINING THE FACTS, VALID REASONS COULD BE RECO RDED. MOREOVER, NEITHER THE NOTICE U/S 148 OF THE ACT HAS BEEN SERV ED NOR ANY LETTER DATED APRIL 10, 2006 AS STATED IN THE REASONS WAS E VER SERVED UPON THE LEGAL HEIR, THEREFORE, ASSESSMENT IS BAD IN LAW. 4. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS FAILED TO THAT THERE WAS NO INCOME ASSESSABLE IN TH E HANDS OF THE ASSESSEE AS INCOME' WHICH HAS BEEN ESTIMATED BY THE AO AT A SUM OF RS. 5,00,000/- SUCH ADDITION MADE BY THE AO IS BAD IN LAW AND IS WITHOUT ANY BASIS AND IS LIABLE TO BE DELETED. 5. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT SALE CONSIDERATION OF PRO PERTY AS SUCH CANNOT BE ASSESSED IN ITS ENTIRETY AS 'SHORT TERM CAPITAL GAIN'. THE AO WAS REQUIRED TO ASCERTAIN THE FACTS AND THEREAFTER, ASS ESS SUCH INCOME UNDER THE APPROPRIATE HEAD, IF ASSESSABLE UNDER THE INCOM E TAX ACT, 1961. 4 6. THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS FAILED TO APPRECIATE THAT, THE APPELLANT BEING ONE OF THE LEGAL HEIRS, IS NOT LIABLE TO PAY ANY TAX ON THE INCOME ASSESSED BY THE AO. 3. IRONICALLY THE CIT(A) HAS DISMISSED THE APPEAL A S THE APPEAL BEFORE HIM WAS BARRED BY LIMITATION AND WITHOUT CON DONING THE DELAY AND WITHOUT GOING INTO THE MERITS OF THE APPE AL THE CIT(A) DISMISSED THE APPEAL. 4. WE ARE OF THE CONSIDERED VIEW THAT THE CIT(A) OU GHT TO HAVE CONSIDERED THE APPEAL ON MERITS OF THE CASE AND SHO ULD HAVE AVOIDED THE TECHNICALITIES OF THE LAW. 5. THE PECULIAR FACTS OF THE CASE ARE THAT THE ASSE SSEE TAHAR SINGH DIED ON 15.04.2010 WHICH IS EVIDENT FROM THE DEATH CERTIFICATE. 6. THE AO ISSUED NOTICE DATED 14.03.2014 TO THE ASS ESSEE THROUGH HEIR SH. RAJPAL SON OF THE ASSESSEE. REFER RING TO THE SALE DEED 10.04.2006 FOR SALE OF IMMOVABLE PROPERTY FOR RS.2.90 CRORES THE AO ASKED THE SON OF THE ASSESSEE SH. RAJPAL TO EXPLAIN WHETHER RETURN OF INCOME WAS FILED AND WHETHER CAPI TAL GAIN HAS BEEN DECLARED AND TAX HAS BEEN PAID ON THE CAPITAL GAIN, A SIMILAR NOTICE ON SAME DAY WAS ALSO ISSUED IN THE NAME OF T AHAR THROUGH 5 HEIR RAVINDER SON OF THE ASSESSEE ASKING THE SAME D ETAILS AS ABOVE. THE THIRD NOTICE ON THE SAME DAY WAS AGAIN ISSUED TO THE ANOTHER SON OF THE ASSESSEE ASKING FOR THE SAME DET AILS. FURTHER A SIMILAR NOTICE WAS ISSUED IN THE NAME OF THE SMT. SUNITA KUMARI BEING DAUGHTER OF THE DECEASED. 7. NOTICE U/S. 148 OF THE ACT WERE ISSUED ON 29.03. 2014 SERVED UPON SMT. SUNITA KUMARI, RAJPAL AND RAVINDER KUMAR. 8. THE FACT OF THE MATTER IS THAT THERE ARE SEVEN L EGAL HEIRS OF THE DECEASED TAHAR SINGH :- (I) SMT. SHANTI (WIFE OF DECEASED TAHAR SINGH) (II) RAVINDER KUMAR (SON) (III) SUMAN KUMAR (SON) (IV) SUNITA (DAUGHTER) (V) RAJPAL (SON) (VI) RAJESH (SON) (VII) SUMITRA DEVI (DAUGHTER) THIS IS SUPPORTED BY COPY OF SUCCESSION CERTIFICATE ISSUED BY CIVIL JUDGE DIVISION GURGAON ON 05.10.2012. THE ASSESSME NT HAS BEEN FRAMED IN THE NAME OF SUNITA KUMARI ONE OF THE DAUGHTER OF THE DECEASED TAHAR SINGH WHEREAS THERE ARE SEVEN LE GAL HEIRS OF THE DECEASED ASSESSEE. 6 9. THE HONBLE SUPREME COURT IN THE CASE OF FIRST A DDITIONAL ITO VS. MRS. SUSHEELA SADANANDA 57 ITR 168 HAS OBSE RVED AS UNDER :- 7 8 10. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF THE AFORESTATED FINDINGS OF THE HONBLE SUPREME COURT ( SUPRA) WE RESTORE THE ENTIRE APPEAL TO THE FILES OF THE AO. THE AO IS DIRECTED TO ISSUE NOTICE TO ALL THE LEGAL HEIRS OF THE DECEA SED ASSESSEE AND DECIDE AFRESH AS PER THE PROVISIONS OF THE LAW AFTE R GIVING A REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. 12. DECISION ANNOUNCED IN THE OPEN COURT IN THE PR ESENCE OF BOTH THE REPRESENTATIVES ON 23.06.2021. SD/- SD/- (KULDIP SINGH) (N. K. BILL AIYA) JUDICIAL MEMBER A CCOUNTANT MEMBER *NEHA* DATE:- 23.06.2021 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGI STRAR ITAT NEW DELHI DATE OF DICTATION 23.06.2021 9 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23.06.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 23.06.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS 23.06.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 23.06.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 23.06.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 23.06.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER