LATE PRADUMAN N MASTER THROUGH L/H MUKESH CHOKSI, MUMBAI V. DCIT CC 46, MUMBAI

ITA 1907/MUM/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2816 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 24-03-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 20-03-2012
• Court: TRIBUNAL
• Department Lawyers: RAJIV
• Section: 69C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI JASON P. BOAZ (AM) & SHRI SANDEEP GOSAIN (JM) I.T.A. NO. 1907 /MUM/20 1 2 (ASSESSMENT YEAR 20 0 3 - 04 ) LATE PRADUMAN N.MASTER L/H MUKESH CHOKSI BLOCK H. SHRI SADASHIV COOPERATIVE HOUSING SOC IETY LIMITED 6 TH ROAD, SANTACRUZ (E) MUMBAI - 400 055. VS. DCIT CC - 46 ROOM NO. 659 AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) .. ( RESPONDENT ) PAN NO. AAAPC7767J ASSESSEE BY : SHRI BHUPENDRA SHAH DEPARTMENT BY : SHRI RAJIV PANT DATE OF HEA RING : 1.2.2016 DATE OF PRONOUNCEMENT : 17 .8 .2016 O R D E R PER SANDEEP GOSAIN, JM : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER DATED 2.1.2012 PASSED BY LEARNED CIT(A) - 3 5 , MUMBAI FOR A.Y. 200 3 - 04 ON FOLLOWING GROUNDS : 1. T HE LEARNED. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN ' PASSING ORDER U/S. 250 OF THE ACT. 2. THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN UPHOLDING THE VALIDITY OF THE ORDER PASSED U/S. 143(3)(3) R. W.S. 147 OF THE ACT, DETERMINING THE INCOME OF THE APPELLANT AT ` . 1168680/ - WHICH IS ILLEGAL AND BAD IN LAW. 3. THE ID. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN PASSING ORDER WITHOUT COMPLYING WITH THE PRINCIPLES OF NATURAL JUSTI CE . 4. THE ID. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN ISSUING NOTICES WHICH ARE BAD IN LAW AND INVALID. LATE PRADUMAN N.MASTER 2 THE CONSEQUENT ASSESSMENT ORDER IS ALSO VOID AB INITIO. 5. THE ID. COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED I N LAW AND IN FACTS MAKING ADDITIONS ON ACCOUNT OF UNEXPLAINED CASH EXPENDITURE U/S 69C OF THE ACT AMOUNTING TO ` 1691/ - 6. THE APPELLANT CRAVES LEAVE OF YOUR HONOUR TO ADD TO, ALTER, AMEND AND/ OR DELETE ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL 2. DURI NG THE PENDENCY OF THE PRESENT APPEAL, THE ASSESSEE MOVED AN APPLICATION FOR FILING ADDITIONAL GROUND OF APPEAL, WHICH IS AS UNDER : 7) IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE ASSESSING OFFICER ERRED IN PASSING ASSESSMENT ORDER ON A DEAD PERSON I.E. LATE PRADYUMAN N. MASTER WHO DIES NO 27.5.2005 THEREFORE WHOLE ORDER IS NULL AND VOID. 3. SINCE THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IS LEGAL GROUND THEREFORE , WE THOUGHT IT FIT TO ADJUDICATE ADDITIONAL GROUND AS IT GOES TO THE ROOT O F THE CASE. THEREFORE THE SAME IS BEING DECIDED FIRSTLY. 4. BEFORE US, LEARNED AR HAS SUBMITTED THAT THE ASSESSMENT ORDER DATED 3.11.2010 PASSED BY THE ASSESSING OFFICER FOR A.Y. 2003 - 04 IS BAD IN LAW AS ASSESSMENT HAS BEEN MADE ON THE DEAD PERSON. IT WAS FURTHER SUBMITTED THAT THE DECEASED HAD LEFT NO ASSET AT THE TIME OF DEATH AND HE DIED ON 27.5.2005. IN THIS REGARD THE ASSESSEE HAS ALSO PLACED ON RECORD DEATH CERTIFICATE WHICH WAS ISSUED BY THE MUNICIPAL CORPORATION EVIDENCING THAT MR. PRADYUMAN N. MAS TER I.E. THE ASSESSEE DIED ON 27.5.2005 AND THE SAID CERTIFICATE WAS REGISTERED ON 4.6.2005. NOW IT IS TO BE SEEN THAT ONCE THE ASSESSEE HAS DIED ON 27.5.2005, THEREFORE ANY ASSESSMENT ORDER PASSED THEREOF IS SUSTAINABLE IN LAW OR NOT? IN THIS RESPECT LEAR NED AR PLACED ON RECORD JUDGEMENT PASSED BY THE COORDINATE BENCH OF THE TRIBUNAL TITLED LATE MANEKLAL C. CHOKSI (ITA NO. 533/MUM/2013 DATED 29.9.2015) . OPERATIVE PARA ARE AS UNDER : WE FIND THAT THE AO HAD MENTIONED THE NAME OF THE ASSESSEE AS LATE SHR I MANEKIAL CHOKSI IN ASSESSMENT ORDER THAT THE APPEAL BEFORE THE FAA WAS FILED BY ONE MUKESH CHOKSI,THAT MUKESH CHOKSI HAD VERIFIED THE FORM NO.35,THAT THE FAA HAS ALSO DECIDED THE APPEAL FILED BY LATE MANEKIAL CHOKSI. ON A SPECIFIC QUERY BY THE BENCH AR A DMITTED THAT FACT OF DEATH OF THE ASSESSEE WAS NEVER LATE PRADUMAN N.MASTER 3 BROUGHT TO THE NOTICE OF THE AO/FAA AND THE DEATH CERTIFICATE WAS NOT PRODUCED BEFORE THEM. WE ARE UNABLE TO UNDERSTAND AS HOW AN ASSESSMENT CAN BE MADE IN THE YEAR 2011 OF A PERSON WHO HAD EXPIRED IN THE YEAR 2007 I.E. FOUR YEARS BEFORE THE ASSESSMENT WAS COMPLETED. IT APPEARS THAT SEARCH WARRANT WAS ALSO ISSUED IN THE CASE OF THE DEAD PERSON. THE FAA HAD BEFORE PASSING AN ORDER OF 29 PAGES NOT CHECKED THE BASIC FACT AS TO WHO HAD SIGNED AND VERIFIED THE FORM NO.3 5 IN SPITE OF THE FACT THE ASSESSMENT ORDER WAS PASSED IN THE NAME OF LATE MANEKIAL CHOKSI AND NAME OF HIS LEGAL HEIR/S WAS NOT APPEARING. WE ARE OF THE OPINION THAT THE ASSESSMENT MADE IN CASE OF A DEAD PERSON IS VOID. HON'BLE HIGH COURTS OF DE LHI MP AND P&H HAVE IN THE CASES OF R.C.JAIN (140 TAXMAN)SANTOSH RANI (88 TAXMAN209) RAKESHKMAR, MUKESH KUMAR (178 TAAXMAN) RESPECTIVELY HELD THAT SUCH ASSESSMENT ARE VOID. RES PECTFULLY, FOLLOWING THE ABOVE JUDGMENTS, WE HOLD THAT THE ASSESSMENT MADE BY T HE ASSESSING OFFICER WAS INVALID AB INITIO VOID. AS A RESULT, APPEAL FILED BY THE ASSESSEE STANDS ALLOWED . 5. AFTER ANALY Z ING THE JUDGEMENT OF THE COORDINATE BENCH, WE HAVE NOTICED THAT THE ASSESSMENT ORDER PASSED IN THE PRESENT CASE IS BAD IN LAW AS ON THE DATE WHEN THE ASSESSMENT ORDER WAS PASSED AT THAT TIME ASSESSEE HAD ALREADY DIED. THEREFORE, RESPECTFULLY FOLLOWING THE JUDGMENT OF THE COORDINATE BENCH, WE ARE OF THE VIEW THAT THE ASSESSMENT MADE IN THE CASE OF DEAD PERSON IS VOID. IN THIS RESPECT H ON'BLE HIGH COURT OF DELHI, MP AND P&H HAVE CATEGORICALLY HELD IN THE CASE OF R.C. JAIN, SANTOSH RANI, RAKESH KUMAR & MUKESH KUMAR RESPECTIVELY REFERRED ABOVE, IT WAS HELD THAT ASSESSMENTS ARE BAD. THEREFORE REITERATING THE SAME, WE ALSO HOLD THAT THE ASSE SSMENT MADE BY THE ASSESSING OFFICER IN THE PRESENT CASE IS INVALID, AB INITIO AND VOID. 6. SINCE, WE HAVE SET ASIDE THE ASSESSMENT ORDER BY THE ASSESSING OFFICER, THERE IS NO NEED TO ADJUDICATE OTHER GROUNDS RAISED BY THE ASSESSEE. 7 . IN THE RESULT, A PPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER HAS BEEN PRO NOUNCED IN THE OPEN COURT ON 1 7 .8 .2016 . SD/ - SD/ - (JASON P. BOAZ ) (SANDEEP GOSAIN ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED : 17.8 . 20 1 6 LATE PRADUMAN N.MASTER 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS