ACIT, BIKANER V. Shri Jeth Mal Binawara (Deceased) Through L/H Shri Vijay Singh Nirwan, BIKANER

ITA 201/JODH/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82913 (ITAT-JODHPUR)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-08-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P MEENA
• Section: 148

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 201 /JODH/2014 (A.Y. 200 8 - 09 ) ACIT, CIRCLE - 1, BIKANER. VS. SHRI JETH MAL BINAWAR A L/H VIJAY SINGH NIRWAN, 555, BAGINARA, DHOBI TALAI, RANI BAZAR, BIKANER. (APPELLANT) PAN NO. ACOPB 4513 B (RESPONDENT) ASSESSEE BY : SHRI NONE . DEPARTMENT BY : SHRI O.P. MEENA - D.R. DATE OF HEARING : 06 / 0 8 /201 4 . DATE OF PRONOUNCEMENT : 28 /0 8 /201 4 . O R D E R PER N.K. SAINI, A.M TH IS IS AN APPEAL BY THE D EPARTMENT AGAINST THE ORDER DATED 2 8 /0 1 /201 4 OF L D . CIT(A), BIKANER . THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN: - 2 1. DELETING ADDITION OF RS. 6,28,82,613/ - MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN ON SALE OF AGRICULTURAL LAND. 2. DELETING ADDITION OF RS. 3,11,894/ - MADE ON ACCOUNT OF FDR & SB INTEREST. 2 NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHER ANY ADJOURNMENT WAS SOUGHT. WE , THEREFORE, PROCEEDED TO DECIDE THE APPEAL EXPARTE QUA THE ASSESSEE ON MERIT, AFTER HEARING THE LD . D.R. FACTS RELATING TO THIS CASE, IN BRIEF, ARE THAT A NOTICE U/S. 148 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) WAS ISSUED ON 25/05/2010 AND SERVED ON THE LEGAL HEIR NAMELY SHRI VIJAY SINGH NIRWAN, BUT NO RETURN OF INCOME WAS FILED ON BEHALF OF THE DECEASED ASSESSEE . THE ASSESSI NG OFFICER MADE A PROTECTIVE ASSESSMENT IN THE HANDS OF PRESENT ASSESSEE AND ASSESSED THE INCOME AT RS. 6,31, 94,507 / - . 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND PROVIDED A COPY OF JUDGMENT DELIVERED BY THE CIVIL COURT REGARDING HINDU SUCCESSION ACT WHEREIN THE MATTER REGARDING SUCCESSION OF LATE SHRI JETH MAL BINAWARA WAS DECIDED AND TWO OF HIS SISTERS WERE DECLARED AS LEGAL HEIRS . THE PRESENT ASSESSEE I.E. SHRI VIJAY SINGH NIRWAN ALTHOUGH WAS PARTY TO THE CIVIL CASE, BUT HE HAD NOT BEEN DECLARED AS LEGAL HEIR . 3 THE LD. CIT(A) , IN THE LIGHT OF THE JUDGMENT GIVEN BY THE CIVIL COURT HELD THAT THE PROTECTIVE ASSESSMENT COMPLETED BY THE ASSESSING OFFICER BY MAKING SHRI VIJAY SINGH NIRWAN AS LEG AL HEIR OF LATE SHRI JETH MAL BINAWARA DOES NOT SURVIVE. HE THEREFORE, CANCELLED THE ASSESSMENT. THE LD. CIT(A) DID NOT ADJUDICATE THE GROUNDS OF APPEAL ON MERIT BY FOLLOWING THE RATIO LAID DOWN BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF RAWAT MAL HARAKH CHAND VS. CIT REPORTED AT 129 ITR 346 . NOW THE DEPARTMENT IS IN APPEAL. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED D.R. AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE , IT IS AN ADMITTED FACT THAT AFTER DEMISE OF SHRI JETH MAL BINAWARA, THE CIVIL COURT DECLARED HIS TWO SISTERS AS LEGAL HEIRS AND THE PRESENT ASSESSEE NAMELY SHRI VIJAY SINGH NIRWAN ALTHOUGH , WAS A PAR TY OF THE CIVIL CASE, BUT HE HAS NOT BEEN DECLARED AS L EGAL HEIR. THEREFORE, THE PROTECTIVE ASSESSMENT FRAMED BY MAKING SHRI VIJAY SINGH NIRWAN AS LEGAL HEIR OF LATE SHRI JETH MAL BINAWARA WAS LEGALLY WRONG AND THE LD. CIT(A) WAS JUSTIFIED IN CANCELLING THE SAME. WE, THEREFORE, DO NOT SEE ANY MERIT IN THIS A PPEAL OF THE DEPARTMENT . 4 5. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED . ( ORDER PRONOUNCED IN THE COURT ON 28 TH AUGUST , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 28 TH AUGUST , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .