Late OM Prakash Kushwaha, Allahabad V. ITO, Allahabad

ITA 21/ALLD/2022

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7701 (ITAT-ALLAHABAD)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 23-06-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation
• Section: 148; 271(1)(c); 144; 142(1); 274

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL ALLAHABAD ‘SMC’ BENCH, ALLAHABAD BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER ITA No.21/ALLD/2022 Assessment Year: 2010-11 Om Prakash Kushwaha, I.T. Campus, 38, Mahatma Gandhi Marg, Civil Lines, Allahabad, U.P. PAN-AELPK6261N v. Income Tax Officer, Ward-2(2), Allahabad (Appellant) (Respondent) Appellant by: Sh. Vishnu Kesarwani, Advocate Respondent by: Mr. A.K. Singh, Sr. DR Date of hearing: 08.09.2022 Date of pronouncement: 13.09.2022 O R D E R VIJAY PAL RAO, JUDICIAL MEMBER: This appeal by the assessee is directed against the order dated 24.12.2021 of CIT(A) (National Faceless Appeal Centre, Delhi) for the assessment year 2010-11. 2. The assessee has filed this appeal electronically on 28.052022, though the same was registered on 24.06.2022 when physical copy was submitted in the Registry. The learned DR has submitted that there is a delay in filing the appeal as the limitation expired on 24 th February, 2022. The learned AR of the assessee has submitted that after filing the appeal before the CIT(A), the assessee expired on 19.7.2018 and the legal heirs of the deceased filed this present appeal after receiving the show cause notice for levy of penalty under section 274 of the Income Tax Act. He has referred to the death certificate of the assessee and submitted that the CIT(A) has passed the impugned order against the deceased assessee. He has also relied upon the decision of Hon'ble Supreme Court in Suo Moto Writ Petition(C) No.3 of 2020 whereby the limitation was extended from 15 th March, 2022 to 28 th February, 2022 and further a period of 90 days was allowed by the Hon'ble Supreme Court w.e.f. 1 st March, 2022 where the actual balance period of limitation was already expired or remain less than 90 days. Thus, the learned AR has submitted that after the legal ITA No.21/Alld/2022 Late Om Prakash Kushwaha 2 heirs of the deceased came to know about the impugned order, the present appeal was filed without any delay. 3. I have considered the rival submissions as well as relevant facts and material on record. The ld. CIT(A) has passed the impugned order on 24 th December, 2021 and copy of the same was sent to email of the C.A. as it was given in Form No. 35. It is an undisputed fact that the assessee already died on 19.7.2018 and therefore, the impugned order of the CIT(A) was passed ex parte. The legal heir of the assessee has filed this appeal and stated in Form No. 36, as the date of communication of the order on 30.4.2022. Accordingly, having considered the facts and circumstances of the case as well as the judgment of Hon'ble Supreme Court extending the limitation from 15 th March, 2020 to 24 th February, 2022 and further allowing a period of 90 days for filing the petition, applications, appeals and suit etc,. the appeal filed by the assessee on 28 th May, 2022 is considered as within the period of limitation. 4. The assessee has raised the following grounds:- “1. That, the assessee/appellant has died on 19/07/2018 after filing the first appeal about which one of his legal heirs, Sri Pradeep Kumar Kushwaha does not have any information until he received a show cause notice u/s 271(1)(c) of the I-T Act. Thereafter, Sri Pradeep Kumar Kushwaha, one of legal heirs of the deceased assessee/appellant could know about first appeal filed by the assessee/appellant and impugned ex-party order dt. 24/12/2021 passed by the learned Commissioner (Appeal), NFAC and ex party assessment order dt. 12/12/2017 passed by the learned ITO. 2. That, after becoming the legal heir of the deceased assessee/appellant on the Income Tax e-filing Portal, Sri Pradeep Kumar Kushwaha could know about the facts stated and grounds taken by the deceased asseesse/appellant. 3. That, Sri Pradeep Kumar Kushwaha, the legal heir of the deceased assessee/appellant, knows nothing about the facts stated in the memo of the first appeal and cannot verify the same on his own which is pertain to A.Y. 2010-11 (F.Y. 2009-10) without having any documentary source. 4. That, Sri Pradeep Kumar Kushwaha, the legal heir of the deceased assessee/appellant, is collecting all the relevant documents which are necessary to decide the case at his best. So that, he can produce the same before the learned assessing officer, if the present case of remanded back to him, and discharge his responsibility. ITA No.21/Alld/2022 Late Om Prakash Kushwaha 3 5. That, under the facts and circumstances of the case, a reasonable opportunity of hearing may be provided to Sri Pradeep Kumar Kushwaha, the legal heir of the deceased assessee/appellant who did not get the same being a bona fide legal heir and acting on behalf of the deceased assessee/appellant.” 5. The learned AR of the assessee has submitted that the Assessing Officer has passed an ex parte order under section 144 r.w.s. 147 and made the addition of Rs. 10,00,000/- on account of deposits made in the bank account of the deceased assessee. He has further submitted that the legal heirs of the deceased assessee find it difficult to explain the source of the said deposit due to the death of the assessee. Even the CIT(A) has passed the ex parte order dated 24.12.2019 whereas the assessee was already expired on 19.7.2018 therefore, the assessee could not produce the explanation before the authorities below. He has pleaded that the matter may be remanded to the record of the Assessing Officer for deciding the matter afresh. The ld. AR has further contended that the assessee raised an issue of no notice under section 148 of the Income Tax Act as the alleged notice was not received by the deceased assessee. 6. On the other hand, the learned DR has submitted that the Assessing Officer has issued notice under section 148 as well as notices under section 142(1) on a number of occasions but the assessee did not respond to any of the notices issued by the Assessing Officer and consequently the assessment was framed under section 144 r.w.s. 147. He has referred to the show cause notice issued by the Assessing Officer under section 144 dated 21.11.2017 which was served through the Inspector of Income Tax Department but there was no compliance on behalf of the assessee. Thus, the learned DR has submitted that the assessee neither filed any return of income nor appeared before the Assessing Officer nor filed any reply to any of the notices issued by the Assessing Officer. 7. He has further contended that before the CIT(A), nobody has appeared despite several notices issued. He has pointed out that the ld. CIT(A) has issued the notices to the assessee and in the absence of any information about the death of the assessee, the notices ITA No.21/Alld/2022 Late Om Prakash Kushwaha 4 could not be issued other than the assessee. He has relied upon the orders of the authorities below. 8. I have considered the rival submissions as well as the relevant material on record. The Assessing Officer reopened the assessment by issuing the notice under section 148 on 30 th March, 2017 on the basis of the information regarding the cash deposit in the saving bank account of Rs. 10,00,500/- during the year under consideration. There was no response on behalf of the assessee to the notice issued under section 148. The Assessing Officer also issued notice under section 142(1) on various dates but there was no compliance. Finally, the assessment was framed under section 144 on 12.12.2017. The assessee challenged the assessment before the CIT(A) and also challenged the notice under section 148 in ground no. 1 filed before the CIT(A) wherein the assessee questioned the validity of the assessment framed under section 144 without issuing notice under section 148. The CIT(A) has decided this issue in para 3 as under:- “3. The facts of the case are that proceedings u/s 147 were initiated by issuing notice u/s 148 dated 30.03.2017 to verify the cash deposits in the bank account amounting to Rs. 10,00,500/- The AO after obtaining approval from the Pr. CIT, Allahabad issued notice u/s 142(1) dated 12.05.2017, however, no compliance was made. Subsequently, notices u/s 142(1) were issued on 13.06.2017, 14.09.2017 and final show cause was issued through inspector on 21.11.2017, which remained to be complied with. Therefore, the AO passed the exparte order on merits by assessing total income at Rs. 10,00,500/-.” 9. Thus, it is clear that the CIT(A) has just referred the date of notice issued by the Assessing Officer under section 148 without verifying the fact whether the said notice was served upon the assessee within the period of limitation or not or even it was sent by the Assessing Officer before the limitation to be expired on 31 st March, 2017. There is no reference of the mode of service of notice under section 148. The CIT(A) has passed the impugned order ex parte when nobody has attended despite several notices however, it is also a fact that the assessee expired even before the first notice was issued by the CIT(A). Accordingly, in the facts and circumstances of the case, when the CIT(A) has passed the ITA No.21/Alld/2022 Late Om Prakash Kushwaha 5 ex parte order against the deceased assessee, the impugned order of the ld. CIT(A) is set aside and the matter is remanded to the record of the CIT(A) for deciding the same afresh after giving an appropriate opportunity of hearing to the legal heirs of the assessee. 10. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 13.09.2022 at Allahabad. Sd/- [VIJAY PAL RAO] JUDICIAL MEMBER DATED: 13/09/2022 Sh Copy forwarded to: 1. Appellant –Late Om Prakash Kushwaha 2. Respondent –I.T.O., Ward-2(2), Allahabad 3. CIT(A), Allahabad 4. CIT- 5. DR- By order Sr. P.S.