Late Smt. Kunwarani Rajeshwari Kumari, JODHPUR V. ITO, JODHPUR

ITA 228/JODH/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54343 (ITAT-JODHPUR)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-11-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 20-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard

Judgement Text

1 ITA 228-11 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 228/JODH/2011 ASSTT. YEAR : 2007-08. LATE SMT. KUNWARANI RAJESHWARI KUMARI, VS. THE INC OME-TAX OFFICER, THROUGH HER LEGAL HEIR SHRI PARIKSHIT SINGH, WARD 1(4), BUNGALOW NO. 1, RAI KA BAGH, JODHPUR. JODHPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AMIT KOTHARI RESPONDENT BY : SHRI SUNIL MATHUR DATE OF HEARING : 28.11.2011 DATE OF PRONOUNCEMENT : 30.11.2011. ORDER DATED : 30.11.2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY ASSESSEE AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2007-08. 2. FIRST ISSUE IS AGAINST THAT NO VALID NOTICE UNDE R SECTION 143(2) WAS ISSUED ON THE ASSESSEE, THEREFORE, THE ASSESSMENT IS VOID ABINITI O. 3. IT WAS SUBMITTED BY LD. A/R THAT FIRST NOTICE UN DER SECTION 143(2) WAS ISSUED ON 26.9.2008 WHICH WAS RECEIVED BY THE SON OF THE ASSE SSEE. THE ASSESSEE EXPIRED BEFORE THE DATE OF ISSUANCE OF THE NOTICE I.E. 17.7.2008, THEREFORE, THIS NOTICE ISSUED IN THE NAME 2 OF THE ASSESSEE CANNOT BE SAID TO BE A VALID NOTICE . THEREFORE, ASSESSMENT COMPLETED ON THE BASIS OF THIS NOTICE IS VOID ABINITIO. FROM A QUERY BY THE BENCH THAT LEGAL HEIR HAS RECEIVED THE NOTICE, IT WAS STATED THAT THE ASSESSI NG OFFICER WAS INFORMED THAT THE MOTHER (ASSESSEE) HAS EXPIRED AND HE WILL ASSIST THE ASSES SING OFFICER TO COMPLETE THE ASSESSMENT. THEN IT CAN BE SAID THAT NO VALID NOTIC E WAS SERVED UPON THE ASSESSEE. IT WAS ALSO BROUGHT TO THE KNOWLEDGE OF THE LD. COUNSEL OF THE ASSESSEE THAT THERE WAS NO INFORMATION TO THE ASSESSING OFFICER THAT ASSESSEE HAS EXPIRED. THEREFORE, PERHAPS HE WAS RIGHT IN ISSUING NOTICE IN THE NAME OF THE ASSE SSEE. AT THIS STAGE THE LD. COUNSEL FAIRLY STATED THAT THIS GROUND MAY BE TREATED AS NOT PRESS ED. ACCORDINGLY THIS GROUND OF THE ASSESSEE IS DISMISSED. 4. NEXT ISSUE IS THAT NOTICE UNDER SECTION 143(2) W AS ISSUED ON ONE OF THE LEGAL HEIRS I.E. IN THE NAME OF SHRI PARIKSHIT SINGH, THE SON O F THE ASSESSEE WHEREAS THERE ARE TWO LEGAL HEIRS, THEREFORE, THE ASSESSMENT PROCEEDINGS ARE VOID ABINITIO. RELIANCE WAS PLACED ON THE DECISION OF HONBLE SUPREME COURT IN THE CAS E OF HOTEL BLUE MOON, 321 ITR 362. 5. THE LD. D/R ON THE OTHER HAND INVITED ATTENTION OF THE BENCH AT PAGE 90 OF THE PAPER BOOK WHERE A COPY OF LETTER DATED 27.1.2009 F ILED BY LEGAL HEIR SHRI PARIKSHIT SINGH BEFORE ASSESSING OFFICER IS PLACED. IN THIS LETTER IT HAS BEEN MENTIONED THAT HE WILL CONDUCT ALL THE PROCEEDINGS OF INCOME-TAX OF HIS LA TE MOTHER. THEREFORE, NOTICES NOT NEEDED TO BE ISSUED ON ALL THE LEGAL HEIRS. 6. AFTER CONSIDERING THE SUBMISSIONS AND PERUSING T HE MATERIAL ON RECORD, WE FIND THAT ON THIS ISSUE THE MATTER NEEDS TO BE SENT BACK TO THE FILE OF ASSESSING OFFICER. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. JAI PR AKASH SINGH, 219 ITR 737 HAS HELD THAT WHERE NOTICE ISSUED ON ONE LEGAL HEIR AND THER E ARE MANY OTHER LEGAL HEIRS, IN THAT 3 CASE ASSESSMENT CANNOT BE QUASHED BUT THE ASSESSMEN T CAN BE SET ASIDE AND THE MATTER SHOULD GO BACK TO THE FILE OF ASSESSING OFFICER TO ISSUE NOTICES TO ALL THE LEGAL HEIRS. THEREFORE, THIS ISSUE IS COVERED BY THE DECISION OF HONBLE APEX COURT (SUPRA). THE DECISION OF HONBLE SUPREME COURT IN CASE OF HOTEL BLUE MOON (SUPRA) IS NOT ON THE ISSUE. IT IS IN CASE OF PROCEEDINGS UNDER SECTION 158 WHERE IT HAS BEEN HELD THAT IF THE STATUTORY NOTICE IS NOT ISSUED THEN IT IS NOT A PRO CEDURAL MISTAKE. IN THE PRESENT CASE STATUTORY NOTICE HAS BEEN ISSUED ON ONE OF THE LEGA L HEIRS WHEREAS THERE ARE TWO LEGAL HEIRS AND IN VIEW OF THE DECISION OF HONBLE APEX COURT I N CASE OF CIT VS. JAI PRAKASH SINGH (SUPRA) WHEREIN IT HAS BEEN CLEARLY HELD THAT MATTE R SHOULD GO BACK TO THE FILE OF ASSESSING OFFICER TO ISSUE NOTICE ON ALL THE LEGAL HEIRS. RESPECTFULLY FOLLOWING THE DECISION OF HONBLE SUPREME COURT, WE SET ASIDE THE ORDER OF THE ASSESSING OFFICER AND RESTORE THE MATTER BACK TO THE FILE OF ASSESSING OF FICER TO ISSUE NOTICES ON ALL THE LEGAL HEIRS AND TO PASS A FRESH ASSESSMENT ORDER IN ACCOR DANCE WITH LAW AFTER AFFORDING PROPER OPPORTUNITY OF BEING HEARD TO THE LEGAL HEIRS. THE ASSESSEE IS ALSO DIRECTED TO FILE DETAILS BEFORE THE ASSESSING OFFICER. 7. SINCE WE HAVE SET ASIDE THE ASSESSMENT ORDER, TH EREFORE, THE OTHER GROUNDS ARE NOT DISPOSED OFF AS THEY HAVE BECOME INFRUCTUOUS IN NAT URE. WE ORDER ACCORDINGLY. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 30. 11.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, 4 COPY FORWARDED TO :- LATE SMT. KUNWARANI RAJESHWARI KUMARI, THROUGH HER LEGAL HEIR SHRI PARIKSHIT SINGH, JODHPUR. THE ITO WARD 1(4), JODHPUR. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 228/JODH/2011) BY ORDER, AR ITAT JODHPUR.