Shri Rajesh G Shah, (L/H of Late Smt. Sarojben G Shah), Ahmedabad V. The ITO, Ward- 5(2)(4), Ahmedabad

ITA 2232/AHD/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1209 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 02-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S SHUKLA
• Section: 143(3); 143(1); 72; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD (CONDUCTING THROUGH VIRTUAL COURT) BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO. 2232/AHD/2018 (ASSESSMENT YEAR: 2007-08) SHRI RAJESH G. SHAH (L/H OF LATE SMT. SAROJBEN G. SHAH), 401, SHUBH HOUSE, 77, SWASTIK SOCIETY, B/H. ST. XAVIERS LADIES HOSTAL, OFF. C. G. ROAD, AHMEDABAD VS. INCOME-TAX OFFICER WARD-5(2)(4), AHMEDABAD [PAN NO. ACWPS4000N] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI T. P. HEMANI, SR. ADV., WITH SHRI PARIMAL SINH PARMAR, A.R. RESPONDENT BY : SHRI S. S. SHUKLA , SR. D.R. DATE OF HEARING: 31/05/2021 DATE OF PRONOUNCEMENT: 09/07/2021 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 29.05.2017 PASSED BY THE LD. CIT (APPEALS)-5, AHMED ABAD ARISING OUT OF THE ORDER DATED 26.03.2015 PASSED BY THE LD. ITO, WARD-5(2)(4 ), AHMEDABAD UNDER SECTION 143(3) R.W.S 147 OF THE INCOME ACT, 1961 (HEREINAFT ER REFERRED AS TO THE ACT) FOR A.Y. 2007-08. 2. THE SHORT POINT INVOLVED IN THIS PARTICULAR CASE IS THIS THAT AS TO WHETHER NOTICE UNDER SECTION 148 COULD BE ISSUED IN THE NAM E OF A DECEASED. THE FACTS CULLED OUT FROM THE RECORDS IS THIS THAT THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 28.02.2018 DECLARING TOTAL INCO ME OF RS. 3,73,710/- - 2 - ITA NO.2232/AHD/2018 SHRI RAJESH G. SHAH VS. ITO A.Y. 2007-08 ASSESSMENT OF WHICH WAS DULY PROCEEDED UNDER SECTIO N 143(1) AND FINALIZED. HOWEVER, ON 07.03.2014 A NOTICE UNDER SECTION 148 W AS ISSUED IN THE NAME OF THE ASSESSEE SAROJBEN G. SHAH UPON TAKING NECESSARY ACT ION FROM THE CONCERNED AUTHORITY ON THE BASIS OF SOME FINDINGS AS REGARDS THE FAMILY MEMBERS OF THE ASSESSEE AT THE TIME OF FINALIZATION OF THEIR ASSES SMENT PROCEEDING FOR A.Y. 2010- 11. THE SAID REASSESSMENT WAS FINALIZED UPON MAKIN G ADDITION WHICH WAS, IN TURN, CONFIRMED BY THE LD. FIRST APPELLATE AUTHORITY. 3. DURING THE COURSE OF APPELLATE PROCEEDING THE RE PRESENTATIVE OF THE ASSESSEE MADE HIS OBJECTION AGAINST THE REOPENING OF ASSESSM ENT SINCE THE NOTICE UNDER SECTION 148 WAS ISSUED ON 07.03.2014 ON THE DECEASE D SAROJBEN G. SHAH WHO LEFT FOR HER HEAVENLY ABODE ON 05.01.2011. THE CONTENTI ON OF THE ASSESSEE WAS THAT THE REASSESSMENT CANNOT BE INITIATED AGAINST THE DEAD P ERSON, NEITHER THE NOTICE UNDER SECTION 148 COULD BE ISSUED ON A DECEASED. HOWEVER , SUCH PLEA OF THE ASSESSEE WAS REJECTED BY THE FIRST APPELLATE AUTHORITY AND T HE ADDITION WAS CONFIRMED. HENCE, THE INSTANT APPEAL BEFORE US MAINLY AGAINST THE INITIATION OF THE PROCEEDING UNDER SECTION 148/147 OF THE ACT BY THE LD. AO. 4. WE HAVE HEARD THE RIVAL SUBMISSION MADE BY THE R ESPECTIVE PARTIES, WE HAVE ALSO PERUSED THE RELEVANT MATERIALS AVAILABLE ON RE CORDS INCLUDING THE ORDER PASSED BY THE AUTHORITIES BELOW. 5. THE OBJECTION WAS RAISED BY THE ASSESSEE DURING THE APPELLATE PROCEEDING AS REGARDS THE JURISDICTION AND THE VALIDITY OF INITIA TION OF PROCEEDING UNDER SECTION 147/148 OF THE ACT. THE FOLLOWING JUDGMENTS RELIED UPON BY THE LD. AR IN SUPPORT OF HIS CONTENTIONS WERE ALSO CAREFULLY CONSIDERED B Y US:- (I) URMILABEN ANIRUDHSINHJI JADEJA VS. ITO 420 I TR 226 (GUJARAT) (II) PCIT VS. MARUTI SUZUKI INDIA LTD. (2019) 41 6 ITR 613 (SC) - 3 - ITA NO.2232/AHD/2018 SHRI RAJESH G. SHAH VS. ITO A.Y. 2007-08 (III) CHANDRASHBHAI JAYANTIBHAI PATEL VS. ITO (2 019) 413 ITR 276 (GUJ.) 6. ADMITTEDLY AFTER THE DEMISE OF THE ASSESSEE ON 0 5.01.2011 THE NOTICE UNDER SECTION 148 DATED 07.03.2014 WAS SOUGHT TO BE SERVE D UPON HER AND FINALLY THE ASSESSMENT PROCEEDING WAS ALSO FINALIZED UNDER SECT ION 143(3) R.W.S. 147 ON 26.03.2015. THE ABOVE FACT WAS DULY PLACED BEFORE THE FIRST APPELLATE AUTHORITY BY THE REPRESENTATIVE OF THE DECEASED ASSESSEE WHIC H IS ALSO APPEARING AT PAGE 2 PARA 3.1 OF THE ORDER PASSED BY THE FIRST APPELLATE AUTHORITY; THE SAME READS AS FOLLOWS:- 3.1 DURING THE COURSE OF APPELLATE PROCEEDINGS, TH E APPELLANT FILED WRITTEN SUBMISSION DTD. 16.08.2016 AND THE RELEVANT PORTION OF THE SAME IS REPRODUCED AS UNDER:- THE UNDERSIGNED APPELLANT WAS ASSESSED TO TAX AT MUMBAI IN EARLIER YEARS. THERE IS NO FACTS CONCEALED BY THE UNDERSIGNED APPELLANT. THE LEARNED AO HAS ISSUED A NOTICE OF REOPENING ON DECEASED PERSON AND A FRAME THE ASSES SMENT ON THAT THE DECEASED PERSON. THIS ACTION OF THE LEARNED AO IS NOT WITHIN THE PR OVISION OF THE LAW. IN SPITE OF THESE FACTS, THE COMPLETED ASSESSMENT HAS BEEN REOPENED BY THE LEARNED AO WHICH IS NOT WITHIN THE PROVISIONS OF THE LAW AND THEREFORE THE IMPUGN ED REASSESSMENT ORDER PASSED IS BAD IN LAW AND DESERVES TO BE CANCELLED 7. IT IS A SETTLED PRINCIPLE OF LAW THAT REOPENING NOTICE ISSUED IN THE NAME OF A DECEASED PERSON IS NOT TENABLE IN THE EYE OF LAW. NEITHER THE REOPENING NOTICE UNDER SECTION 148 ISSUED TO A DEAD PERSON COULD BE CONTINUED AGAINST LEGAL REPRESENTATIVES. RELIANCE IS PLACED ON THE JUDGMEN T PASSED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF URMILABEN ANIRUDHSINHJI JADEJA VS. ITO, REPORTED IN 420 ITR 226 (GUJARAT), PCIT VS. MARUTI SUZUKI INDIA LTD., REPORTED IN (2019) 416 ITR 613 (SC) AND CHANDRESHBHAI JAYANTIBH AI PATEL VS. ITO, REPORTED IN (2019) 413 ITR 276 (GUJARAT). THE RATIO LAID DOWN IN THE ORDER PASSED BY THE HONBLE MADRAS HIGH COURT IN THE CASE OF ALAMELA VE ERAPPAN VS. ITO, REPORTED IN [2018] 95 TAXMANN.COM 155/257 TAXMAN 72 (MAD.) HAS ALSO BEEN CONSIDERED BY US WHERE THE RATIO AS ABOVE HAS BEEN LAID DOWN. - 4 - ITA NO.2232/AHD/2018 SHRI RAJESH G. SHAH VS. ITO A.Y. 2007-08 THUS, RESPECTFULLY RELYING UPON THE JUDGMENT PASSE D BY THE JURISDICTIONAL HIGH COURT AND THE OTHER HONBLE HIGH COURTS WE FIN D NO MERIT IN THE INITIATION OF THE PROCEEDING AGAINST THE PERSON WHO DIED MORE THA N THREE YEARS PRIOR TO THE DATE OF ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT. THE SAME, ACCORDING TO US IS NOT SUSTAINABLE IN THE EYE OF LAW AND, THUS, THE RE ASSESSMENT PROCEEDING IS LIABLE TO BE QUASHED. THE ORDER IS PASSED ACCORDINGLY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 09/07/2021 SD/- SD/- (AMARJIT SINGH) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 09/07/2021 TANMAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE PCIT- AHMEDABAD. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 08.07.2021. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 08.07.2021 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 08.07.2021 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 09.07.2021 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER