Kaur Singh Through L/H Nachhataar Singh, HANUMANGARH JUNCTION V. ITO, HANUMANGARH

ITA 260/JODH/2014

• Counselvise Citation: 26023314 RSA 2014
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 10-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

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. 260 /JODH/2014 (A.Y. 200 9 - 1 0 ) SHRI KAUR SINGH THROUGH L/H NACHHATAR SINGH, C/O GMS AUTOMOBILES, TOWN JUNCTION ROAD, HANUMANGARH. VS. ITO, WARD - 1, HANUMANGARH. PAN NO. AEMPS 7493 F (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE. DEPARTMENT BY : SHRI MAHESH KUMAR - D.R. DATE OF HEARING : 1 0 / 0 9 /201 4 . DATE OF PRONOUNCEMENT : 01 / 1 0/201 4 . O R D E R PER N.K. SAINI, A.M TH IS IS AN APPEAL BY THE LEGAL HEIR OF THE DECEASED ASSESSEE AGAINST THE ORDER DATED 31 /0 1 /201 4 OF L D . CIT(A), BIKANER . 2 AT THE TIME OF HEARING, NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE, HOWEVER, WRITTEN SUBMISSION HAS BEEN FURNISHED BY THE LEARNED 2 COUNSEL FOR THE LEGAL HEIR OF THE DECEASED ASSESSEE WHICH WE HAVE CONSIDERED ALONG WITH THE SUBMISSIONS OF THE LEARNED D.R. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS A PPEAL: 1. THAT THE APPELLATE ORDER CONFIRMING ITOS ORDER IS AGAINST LAW AND NATURAL JUSTICE. 2. THAT CIT(A) HAS GROSSLY ERRED WHILE CONFIRMING ASSESSING AUTHORITYS ORDER PASSED AGAINST A DECEASED PERSON WHEN FACTS OF DEATH OF ASSESSEE WERE MADE KNOWN TO A.O. DURING ASSESSMENT PROCEEDINGS. 3. THAT APPELLANT RESERVES THE RIGHT TO ADD OR DELETE ANY OF THE GROUNDS AT THE TIME OF HEARING. 3. FACTS RELATING TO THIS CASE, IN BRIEF, ARE THAT THE DECEASED ASSESSEE FILED THE RETURN OF INCOME ON 25/02/2010 DECLARING AN INCOME OF RS. 2,39,590/ - . LATER ON, THE CASE WAS SELECTED FOR SCRUTINY AND THE ASSESSING OFFICER FR AM ED THE ASSESSMENT VIDE ORDER DATED 30/09/2011 AT AN INCOME OF RS. 2,87,210/ - . 4. BEING AGGRIEVED, THE LEGAL H EIR OF THE DECEASED ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS ILLEGAL AND AGAINST THE NATURAL JUSTICE BECAUSE IT HAD BEEN PASSED ON A DECEASED PERSON. IT WAS STATED THAT THE A SSESSEE EXPIRED ON 29/06/2011 I.E. DURING THE ASSESSMENT PROCEEDINGS AND THE FACTS WERE MADE KNOWN TO THE ASSESSING OFFICER. IT WAS FURTHER STATED THAT AS PER THE PROVISIONS OF SECTION 159(2) OF I.T. ACT, 1961 3 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) FOR THE PURPOSE OF MAKING AN ASSESSMENT WHICH WOULD INCLUDE MAKING AN ASSESSMENT OR REASSESSMENT OF THE INCOME FOR THE YEAR UNDER CONSIDERATION AND FOR THE PURPOSE OF CLAIMING AN SUM IN THE HA NDS OF THE LEGAL REPRESENTATIVE, IT SHALL BE DEEMED THAT ANY PROCEEDINGS TAKEN AGAINST THE DECEASED PRIOR TO HIS DEATH HAD BEEN TAKEN AGAINST THE LEGAL REPRESENTATIVE AND MAY BE CONTINUED AGAINST THE LEGAL REPRESENTATIVE RIGHT FROM THE STAGE AT WHICH IT STOOD ON THE DATE OF DEATH OF THE DECEASED AND LEGAL FICTION IS THAT IF THE ASSESSEE EXPIRES DURING THE ASSESSMENT PROCEEDINGS , THERE IS NO NEED TO START A FRESH PROCEEDINGS AGAINST THE LEGAL REPRESENTATIVE , BUT FROM THE DATE ONWARDS THE PROCEEDINGS WILL HAVE TO BE STA RTED AGAINST THE LEGAL REPRESENTATIVE AND THE PROVISIONS OF THE ACT SHALL APPLY ACCORDINGLY AND THE NOTICE S IF REQUIRED SHALL BE SERVED IN THE NAME OF LEGAL REPRESENTATIVE AND THE ASSESSMENT SHALL ALSO BE MADE IN THE NAME OF LEGAL REPRESENTATIVE. RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: - 1) SAHASRANSHU KANTA ACHARYA VS. COLLECTOR OF MALDA 47 ITR 754 (SC ) 2) CIT VS. MANOHAR LAL NAGPAL 139 ITR 157 (P & H ) 3) CIT VS. AMAR CHAND 48 ITR 59 (SC ) IT WAS FURTHER STATED THAT THE ASSESSEE EXPIRED ON 29/06/2011 AND THIS FACT WAS MADE KNOWN TO THE ASSESSING OFFICER, HOWEVER, THE 4 ASSESSING OFFICER NEITHER BROUGHT ON RECORD THE LEGAL HEIR IN FURTHER PROCEEDINGS NOR SERVED A FRESH NOTICE AND THE ASSESSMENT WAS FRAMED IN THE NAME OF DECEASED PERSON. THEREFORE, THE ASSESSMENT ORDER DATED 30/09/2011 BE DECL A RED NULL AND VOID. THE LD. CIT(A) FORWARDED THE SUBMISSIONS OF THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE TO THE ASSESSING OFFICER FOR HIS COMMENTS, WHO STATED THAT THE NA ME OF THE LEGAL HEIR WAS NOT BROUGH T TO HIS NOTICE. THE SAID REPORT WAS FORWARDED TO THE AUTHORIZED REPRESENTATIVE OF THE LEGAL HEIR, WHO VIDE LETTER DATED 29/01/2014 STATED THAT IN THE ASSESSEES CASE THOUGH THE ASSESSING OFFICER WAS HAVING KNOWLEDGE THAT THE ASSESSEE HAD EXPIRED, HE DID NOT PERFORM HIS LEGAL DUTY TO BRING THE LEGAL REPRESENTATIVE ON RECORD, BUT PASSED THE ASSESSMENT ORDER IN THE NAME OF THE DECEASED PERSON. 5. THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISSIONS OF THE AUTHORIZED REPRESENTATIVE AND THE REMAND REPORT OF THE ASSESSING OFFICER HELD THAT THE AUTHORIZED REPRESENTATIVE COULD NOT CON TROVERT THE FINDING OF THE ASSESSING OFFICER THAT DURING THE ASSESSMENT PROCEEDINGS NAME OF THE LEGAL REPRESENTATIVE WAS NOT BROUGHT TO HIS KNOWLEDGE. HE THEREFORE, 5 HELD THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS NOT ILLEGAL . NOW THE LEGAL HEIR OF THE DECEASED ASSESSEE IS IN APPEAL. 6 . LEARNED COUNSEL FOR THE LEGAL HEIR OF THE DECEASED ASSESSEE IN HIS WRITTEN SUBMISSIONS HAS REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND THE LEARNED D.R. IN HIS RIVAL SUBMISSIONS, SUPPORTED THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) . 7 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREF ULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE AUTHORIZED REPRESENTATIVE OF THE DECEASED ASSESSEE VIDE LETTER DATED 18/07/2011 INFORMED THE ASSESSING OFFICER THAT THE ASSESSEE EXPIRED ON 29/06/2011 . IN SUPPORT OF THAT, DEATH CERTIFICATE COPY OF WHICH IS PLACED AT PAGE NO . 2 OF THE ASSESSEES PAPER BOOK WAS FURNISHED, COPY OF THE SAID LETTER IS PLACED AT PAGE NO.1 OF THE PAPER BOOK FURNISHED BY THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE . C OPY OF T HE ORDER SHEET WHICH IS PACED AT PAGE NOS. 3 & 4 OF THE PAPER BOOK ALSO REVEALS THAT ON 18/07/2011 SHRI D.D. GARG , ADVOCATE AUTHORIZED REPRESENTATIVE OF THE LEGAL HEIR OF THE DECEASED ASSESSEE APPEARED AND HAD MENTIONED THAT THE ASSESSEE HAD EXPIRED. SO, WE DO NOT SEE ANY 6 MERIT IN THIS OBSERVATION OF THE ASSESSING OFFICER IN THE REMAND REPORT FURNISHED TO THE LD. CIT(A) THAT NO INFORMATION WAS GIVEN TO THE ASSESSING OFFICER REGARDING THE DEATH OF THE ASSESSEE. T HE HON'BLE SUPRE ME COURT IN THE CASE OF CIT VS. AMARCHAND N. SHROFF (1963) 48 ITR 59 (SC), HELD THAT T HE INDIVIDUAL ASSESSEE HAS ORDINARILY BE A L I VING PERSON AND NO ASSESSMENT CAN BE MADE ON A DEAD PERSON AND THE ASSESSMENT IS A CHARGE IN RESPECT OF THE INCOME OF THE PREVIOUS YEAR AND NOT A CHARGE IN RESPECT OF THE INCOME OF THE YEAR OF THE ASSESSMENT AS MEASURED BY THE INCOME OF THE PREVIOUS YEAR. 8 . IN THE PRESENT CASE ALSO, IT IS AN ADMITTED FACT THAT THE ASSESSMENT ORDER HAS BEEN PASSED ON THE DECEASED ASSESSEE ON 30/09/2011 WHILE THE ASSESSEE EXPIRED ON 29/06/2011. SO, IT IS CLEAR THAT THE ASSESSMENT ORDER WAS PASSED ON THE DEAD PERSON AND LEGAL HEIR WAS NOT BROUGHT ON RECORD IN SPITE OF A REQUEST MADE BY THE AUTHORIZED PERSON . I T WAS THE DUTY OF THE REVENUE TO BRING THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE ON RECORD PARTICULARLY WHEN THE AUTHORIZED REPRESENTATIVE OF THE DECEASED ASSESSEE BROUGHT THIS FACT TO TH E KNOWLEDGE OF THE ASSESSING OFFICER VIDE LETTER DATED 18/07/2011. THEREFORE, THE ASSESSMENT ORDER DATED 30/09/2011 ON THE DEAD PERSON IS VOID AB INITIO . IN THAT VIEW OF 7 THE MATTER, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND THE ASSESSMENT ORDER IS QUASH ED. 9 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ( ORDER PRONOUNCED IN THE COURT ON 01 ST OCTOBER , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 01 ST OCTOBER , 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 .