PRATIK ARVIND MALKAN LEGAL HEIR AND EXECUTOR OF LATE ARVIND G MALKAN, MUMBAI V. ITO WD 8(1)(1), MUMBAI

ITA 1724/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71299 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 25-09-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 12-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI BEFORE SHRI I P BANSAL, JUDICIAL MEMBER & SHRI N K BILLAIYA, ACCOUNTANT MEMBER ITA NOS.1724 & 1725/MUM/2012 FOR ASST. YEARS: 2005-06 & 2008-09 PRATIK ARVIND MALKAN LEGAL HEIR & EXECUTOR OF LATE ARVIND G MALKAN, COSMOS PLOT NO.399, NEAR GOLDEN TOBACCO, S V ROAD, VILE PARLE (W), MUMBAI- 400 056 PAN AADPM2450M VS. THE ITO WARD 8(1)(1), MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : MS. USHA DALAL & MR. A L SHARMA RESPONDENT BY : MR. CHANDRAJIT SINGH DATE OF HEARING : 25.09.2013 DATE OF PRONOUNCEMENT : 25.09.2013 O R D E R PER N.K.BILLAIYA (AM) : THESE TWO APPEALS BY THE ASSESSEE ARE PREFERRED AGA INST TWO SEPARATE ORDERS OF THE CIT(A)-16, MUMBAI, PERTAINING TO A.YS. 2005- 06 AND 2008-09. AS COMMON ISSUES ARE INVOLVED IN BOTH THESE APPEALS , THEY WE RE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CO NVENIENCE AND BREVITY. 2. THE FIRST COMMON GRIEVANCE IN BOTH THESE YEARS I S THAT THE CIT(A) ERRED IN UPHOLDING THE ASSESSMENT ORDER PASSED BY THE ASSESS ING OFFICER IN THE NAME OF THE ASSESSEE WHEN THE ASSESSEE HAS EXPIRED AND THE ASSE SSMENT ORDER SHOULD HAVE BEEN PASSED IN THE NAME OF THE LEGAL HEIR OF THE ASSESSE E. THE OTHER GRIEVANCE OF THE ASSESSEE RELATES TO THE NOTIONAL RENTAL INCOME UNDE R THE HEAD INCOME FROM HOUSE 2 ITA NO.1724 & 1725/M.2012 AY:2005-06 & 2008-09 PROPERTY AND IN RESPECT OF DISALLOWANCE OF INTERES T. WE WILL FIRST TAKE UP MAIN GRIEVANCE OF THE ASSESSEE. 3. FACTS ON RECORD SHOW THAT THE ASSESSEE EXPIRED O N 21.12.2007. THE IMPUGNED ASSESSMENT ORDER IS DATED 1.10.2010, WHICH WAS PASSED PURSUANT TO THE DIRECTIONS OF THE CIT U/S. 263 OF THE ACT. THE ORD ER OF THE CIT U/S. 263 OF THE ACT IS DATED 29.03.2010. IT IS PERTINENT TO MENTION HERE THAT WHEN THE AUTHORIZED REPRESENTATIVE ATTENDED THE PROCEEDINGS U/S. 263, T HE ASSESSEE HAD ALREADY EXPIRED ON 21.12.2007. THIS FACT WAS NEVER BROUGHT TO THE KNOWLEDGE OF THE CIT. FURTHER, WHEN THE PROCEEDINGS U/S. 143(3) PURSUANT TO THE OR DER U/S. 263 WERE INITIATED EVEN THEN THIS FACT WAS NEVER BROUGHT TO THE KNOWLEDGE O F THE ASSESSING OFFICER. THE REVENUE AUTHORITIES CANNOT BE PRESUMED TO KNOW WHET HER THE ASSESSEE IS ALIVE OR NOT. IT WAS INCUMBENT UPON THE LEGAL HEIR OF THE A SSESSEE /COUNSEL TO BRING TO THE NOTICE OF THE REVENUE AUTHORITIES ABOUT THE DEATH O F THE ASSESSEE, SO THAT THE ASSESSING OFFICER COULD HAVE PROCEEDED AGAINST THE LEGAL HEIR AS PER THE PROVISIONS OF SECTION 159 OF THE ACT. AS THE REVENUE AUTHORITIES WERE NOT IN THE KNOWLEDGE OF THE DEMISE OF THE ASSESSEE, THE COUNSEL BEFORE US CANNO T TAKE THIS GROUND THAT THE PROCEEDINGS ARE NULL AND VOID. HOWEVER, IN THE INT EREST OF JUSTICE AND FAIR PLAY, WE RESTORE THE ASSESSMENT FOR BOTH THESE YEARS BACK TO THE FILES OF THE ASSESSING OFFICER. THE ASSESSING OFFICER IS DIRECTED TO PASS THE ASSES SMENT ORDER AFRESH BY BRINGING THE LEGAL HEIR ON RECORD AND AFTER GIVING REASONABLE OP PORTUNITY OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FILE NECESSA RY DETAILS OF THE LEGAL HEIR. AS THE ISSUE HAS BEEN RESTORED BACK TO THE FILE OF THE ASS ESSING OFFICER, WE DO NOT FIND IT NECESSARY TO DECIDE THE ISSUE ON MERIT. 4. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH SEPTEMBER 2013. SD/- SD/- (I P BANSAL) (N.K.BILLAIYA) JUDICIAL MEMBER ACCOUN TANT MEMBER MUMBAI, DT : 25 TH SEPTEMBER, 2013 SA 3 ITA NO.1724 & 1725/M.2012 AY:2005-06 & 2008-09 COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T, MUMBAI 4. THE CIT (A)-16, MUMBAI 5. THE DR, C- BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI