Bairajben Chavda L/h of late Bhurabhai Gandabhai Chavada, Ahmedabad V. The ITO, Ward-3(2)(1), Ahmedabad

ITA 19/AHD/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7661 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-03-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 03-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KETAN GAJJAR
• Keywords: Tax effect
• Section: 142(1); 69A

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH Before: Ms. Suchitra Kamble, Judicial Member Bairajben Chavda, L/H of Late Bhurabhai Gandabhai Chavda, Darbar Vaas, Changodar, Sanand, Ahmedabad PAN: AOJPCO605E (Appellant) Vs The Income Tax Officer, Ward-3(2)(1), Ahmedabad (Respondent) Assessee by: Shri Sunil Maloo, A.R. Revenue by: Shri Ketan Gajjar, Sr. D.R. Date of hearing : 01-04-2024 Date of pronouncement : 26-04-2024 आदेश/ORDER This is an appeal filed against the order dated 08-11- 2023 passed by National Faceless Appeal Centre (NFAC), Delhi for assessment year 2017-18. 2. The grounds of appeal are as under:- “1. The Ld CIT(A) erred in disregarding the settled law and facts of the case while upholding the assessment order passed by the Ld Assessing Officer in the name of deceased Assessee despite this being undisputed fact. ITA No. 19/Ahd/2024 Assessment Year 2017-18 I.T.A No. 19/Ahd/2024 A.Y. 2017-18 Page No. Bairajben Chavda L/H of Late Bhurabhai Gandabhai Chavda vs. ITO 2 2. The Ld CIT(A) erred in law and facts in upholding the addition of cash deposit of Rs. 31,80,000/- u/s 69A of the Act, while unjustifiably disregarding the substantial cash withdrawals made by the Assessee previously. (having tax effect of Rs 24,56,550/-) 3. The appellant reserves the right to add, amend, modify, or alter any ground of appeal during the course of the appellate proceedings.” 3. The assessee did not file return of income u/s. 139. The Assessing Officer as per information observed that the assessee deposited substantial cash of Rs. 31,80,000/- during the period of 09-11-2016 to 30-12-2016 known as demonetization period. The Assessing Officer issued notice u/s. 142(1) but the assessee did not file any reply to that effect. The Assessing Officer issued show cause notice on 05- 11-2019 asking the assessee to explain nature and source of cash deposits of Rs. 5,00,000/- in Uco Bank, Rs. 21,80,000/- in State Bank of India and Rs. 5,00,000/- Bhagyodaya Co- operative bank. The assessee’s wife submitted letter dated 11 th Nov, 2019 stating that the assessee passed away on 17- 10-2019. The wife of the assessee stated that several of his fixed deposits with banks matured from time to time before demonetization period and he get all the maturity proceeds over the years in cash on lakhs of rupees at his home for buying land by making payment in cash. The Assessing Officer rejected the said explanation and passed order u/s. 144 of the Income Tax Act, 1961 dated 19-11-2019. I.T.A No. 19/Ahd/2024 A.Y. 2017-18 Page No. Bairajben Chavda L/H of Late Bhurabhai Gandabhai Chavda vs. ITO 3 4. Being aggrieved by the assessment order, the wife of the assessee being legal heir of the assessee filed appeal before the CIT(A). The CIT(A) partly allowed the appeal of the assessee. 5. The ld. A.R. submitted that the Assessing Officer as well as CIT(A) has noted down that the assessee died during the assessment proceedings which was duly informed by the wife of the assessee who is a legal heir of the assessee, the assessment order is passed in the name of deceased assessee. Thus, the ld. A.R. submitted that the assessment is itself null and void and the assessment order is passed on a dead person (deceased assessee). The ld. A.R. relied upon the decision of Hon’ble Gujarat High Court in case of Pravinchandra A. Shah 154 taxmann.com 616 (Gujarat) and Chandresh Bhai vs. ITO 101 taxmann.com 362 (Gujarat). The ld. A.R. also relied upon the following decisions:- -Pr. CIT v. Maruti Suzuki India Ltd. [2019] 107 taxmann.com 375/265 Taxman 515/416 ITR 613(SC); -Krishnaawatar Kabra v. ITO [2022] 140 taxmann.com 423 (Gujarat); -Rajender Kumar Sehgal v. ITO [2019] 101 taxmann.com 233/260 Taxman 412/414 ITR 286 (Delhi); - Sandeep Chopra v. Pr. CIT [2023] 149 taxmann.com 225/292 Taxman 269 (Jharkhand); - Savita Kapila v. Asstt. CIT [2020] 118 taxmnann.com 46/273 Taxman 148/426 ITR 502 (Delhi); I.T.A No. 19/Ahd/2024 A.Y. 2017-18 Page No. Bairajben Chavda L/H of Late Bhurabhai Gandabhai Chavda vs. ITO 4 On merit, the ld. A.R. submitted that the wife of the assessee has categorically explained the source of cash as well as reason for keeping the cash from 2019 till the date of declaration of demonetization which is for the purpose of purchasing the land. The ld. A.R. submitted that the assessment itself is null and void and therefore be quashed. 6. The ld. D.R. submitted that the CIT(A) has rightly passed the order thereby confirming the addition to the extent where the explanation was not plausible. As regards the assessment passed in the name of deceased assessee, the ld. D.R. submitted that it is a typographical mistake which can be rectified. 7. Heard both the parties and perused all the relevant materials available on record. It is pertinent to note that during the assessment proceedings, the wife of the assessee who is the legal heir of the assessee informed that the assessee died on 17-10-2019. The notice was issued in the name of the deceased person and therefore the Assessing Officer was very much aware of the deceased assessee. Therefore, it cannot be stated that it is typographical error. The assessment does not survive if the same is passed in the name of deceased assessee as the order become void ab initio. Hence, in the light of the decisions of Hon’ble Gujarat High I.T.A No. 19/Ahd/2024 A.Y. 2017-18 Page No. Bairajben Chavda L/H of Late Bhurabhai Gandabhai Chavda vs. ITO 5 Court as well as the guideline envisaged by the Hon’ble Supreme Court in case of Maruti Suzuki India Ltd.(supra), the assessment order itself is null and void and will not sustain in the eyes of law. Thus, the appeal of the assessee is allowed. 8. In the result, the appeal of the assessee is allowed. Order pronounced in the open court on 26-04-2024 Sd/- (SUCHITRA KAMBLE) JUDICIAL MEMBER Ahmedabad : Dated 26/04/2024 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपील य अ धकरण, अहमदाबाद