Late Shri Ashok Dukre, Mumbai V. Income-tax Officer,

ITA 2237/PUN/2016

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3372 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 28-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARISES OUT OF PASSED

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT . ., . / ITA NO. 2237/PUN/2016 / ASSESSMENT YEAR : 2005-06 SMT. ARCHANA ASHOK DUKRE, L/H OF LATE SHRI ASHOK DUKRE AT POST : NALDURG, DIST. OSMANABAD MAHARASHTRA VS. ITO, WARD-3, LATUR (APPELLANT) (RESPONDENT) / ORDER PER R.S.SYAL, VP : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASS ED BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-2, AURANGABAD O N 10-08-2016 IN RELATION TO THE ASSESSMENT YEAR 2005-06. 2. THE FIRST ISSUE RAISED IN THIS APPEAL IS AGAINST THE INITIATION OF RE-ASSESSMENT PROCEEDINGS. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSIN G OFFICER (AO) INITIATED RE-ASSESSMENT PROCEEDINGS BY MEANS OF A NOTICE DATED 01-09-2009 ISSUED U/S.148 OF THE INCOME-TAX ACT, APPELLANT BY MS. ANKITA VASHISTHA RESPONDENT BY SHRI ABHIJIT CHAUDHURI DATE OF HEARING 14-11-2019 DATE OF PRONOUNCEMENT 15-11-2019 ITA NO.2237/PUN/2016 SMT. ARCHANA ASHOK DUKRE 2 1961 (HEREINAFTER ALSO CALLED `THE ACT) IN THE NAME OF LATE ASHOK N. DUKARE THROUGH L/H ARCHANA ASHOK DUKARE. HE COMPL ETED THE ASSESSMENT ON 30-12-2010 DETERMINING TOTAL INCOME AT RS.35,01,140/-. THE ASSESSEE CHALLENGED THE INITIATION OF R E- ASSESSMENT PROCEEDINGS BEFORE THE LD. CIT(A) CONTENDING TH AT THE NOTICE WAS ISSUED IN THE NAME OF A DECEASED PERSON, WHICH WAS INVALID. THE LD. CIT(A) REJECTED THE ASSESSEES CONTENTION B Y NOTICING IN PARA 4 OF THE IMPUGNED ORDER THAT THERE WAS NO ILLEGALITY IN THE ISSUANCE OF NOTICE THROUGH LEGAL HEIR AND FURTHE R THAT THE ASSESSEE HAD PARTICIPATED IN THE ASSESSMENT PROCEED INGS. THAT IS HOW, THE ASSESSEE APPROACHED THE TRIBUNAL. 4. I HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELE VANT MATERIAL ON RECORD. IT IS OBVIOUS FROM THE NOTICE U/S.148 OF THE ACT, A COPY PLACED AT PAGE 2 OF THE PAPER BOOK, THAT THE SAME WAS ISSUED IN THE NAME OF LATE ASHOK N. DUKARE THROUGH L/H ARCHANA ASHOK DUKARE. SUCH A NOTICE IS DATED 01-09-200 9 AND WAS ISSUED ON THE SAME DATE OR THEREAFTER. THE ASSESSE E HAD ADMITTEDLY EXPIRED ON 27-04-2005. THUS, IT IS EVIDENT THAT THE NOTICE WAS ISSUED IN THE NAME OF THE DECEASED AFTER ROUGHLY FIVE YEARS FROM HIS DEATH. A COPY OF THE ASSESSMENT ORDER A LSO INDICATES THE SAME THING, NAMELY, THE ASSESSMENT WAS MADE IN THE ITA NO.2237/PUN/2016 SMT. ARCHANA ASHOK DUKRE 3 NAME OF LATE DUKRE ASHOKRAO NARAYANRAO, L/H. SMT. DUKR E ARCHANA ASHOKRAO. A COPY OF SUCH ORDER DATED 30-12-2 010 IS AVAILABLE IN THE FILE. THOUGH THE ASSESSMENT ORDER RECORDS 2008-09 AS THE ASSESSMENT YEAR, THE LD. DR FAIRLY ADMITTED THAT THE ASSESSMENT YEAR WAS WRONGLY WRITTEN AND THE CORRECT ASSE SSMENT YEAR IS 2005-06 UNDER CONSIDERATION. IN VIEW OF THE ABO VE FACTS, IT IS VIVID THAT NOT ONLY THE NOTICE U/S.148 WAS ISSUED IN THE NAME OF THE DECEASED BUT EVEN THE ASSESSMENT ORDER WAS ALSO PASS ED IN THE SAME NAME, WHICH IS ILLEGAL AND CANNOT BE CURED EVEN IF THE ASSESSEE PARTICIPATED IN THE PROCEEDINGS PURSUANT TO THE NOTIC E. THE HONBLE BOMBAY HIGH COURT IN RUPA SHYAMSUNDAR DHUMATKAR VS. ACIT AND OTHERS IN WRIT PETITION NO.404 OF 2009, VIDE ITS JUDGMENT DATED 05-04-2019 CONSIDERED A SIMILAR SITU ATION IN WHICH THE ASSESSEE HAD DIED AND THE NOTICE WAS ISSUED IN THE NAME OF LATE SHYAM SUNDAR DHUMATKAR WITH THE LEGAL HEIR AS HIS WIDOW. THE HONBLE BOMBAY HIGH COURT DECLARED SUCH REO PENING OF THE ASSESSMENT AS INVALID IN LAW. A COPY OF SUCH JUDGMEN T HAS BEEN PLACED ON RECORD BY THE LD. AR AT PAGE 51 OF THE PA PER BOOK. MORE RECENTLY, THE HONBLE SUPREME COURT IN PR. CIT VS. MARUTI SUZUKI INDIA LTD. (2019) 416 ITR 613 (SC) HAS DEALT WITH A SIMILAR SITUATION IN WHICH NOTICE WAS ISSUED IN THE NAME OF AN ITA NO.2237/PUN/2016 SMT. ARCHANA ASHOK DUKRE 4 AMALGAMATING COMPANY. IT WAS HELD THAT AFTER AMALGAMATION, THE AMALGAMATING COMPANY CEASED TO EXIST AND THUS THE NOTICE ISSU ED WAS RENDERED VOID AB-INITIO . THEIR LORDSHIPS FURTHER HELD THAT PARTICIPATION IN THE PROCEEDINGS BY THE ASSESSEE CANNOT O PERATE AS ESTOPPEL AGAINST LAW. IT IS MANIFEST THAT THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE ARE MUTATIS MUTANDIS SIMILAR TO THOSE AS CONSIDERED BY THE HONBLE SUPREME COURT AND THE HONBLE BOMBAY HIGH COURT IN THE AFORENOTED CASES. RESPEC TFULLY FOLLOWING PRECEDENT, IT IS HELD THAT THE INITIATION OF RE-ASSESSME NT PROCEEDINGS AND THE PROCEEDINGS FOLLOWING THEREAFTER IN THE NAME OF THE DECEASED ARE VOID AB-INITIO . THE ASSESSMENT ORDER IS SET- ASIDE. 5. IN VIEW OF THE DECISION OF THE TRIBUNAL ON THE LEGAL ISSUE AGAINST THE INITIATION OF RE-ASSESSMENT PROCEEDINGS, THERE IS NO NEED TO DISPOSE OFF THE GROUNDS ON MERITS. 6. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH NOVEMBER, 2019. SD/- (R.S.SYAL) / VICE PRESIDENT PUNE; DATED : 15 TH NOVEMBER, 2019 ITA NO.2237/PUN/2016 SMT. ARCHANA ASHOK DUKRE 5 / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ( ) / THE CIT (APPEALS)-2, AURANGABAD 4. THE PR.CIT- 2, AURANGABAD 5. , , SMC / DR SMC, ITAT, PUNE; 6. / GUARD FILE. // TRUE COPY // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE DATE 1. DRAFT DICTATED ON 14-11-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 14-11-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -- JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -- JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER. *