KALYANJI J. TANNA (DECD) L/H DIPAK K. TANNA, MUMBAI V. A.C.I.T.-9(1), MUMBAI

ITA 2651/MUM/2012

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8158 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2017
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 07-03-2017
• Assessment Year: 2005-2006
• Appeal Filed On: 19-04-2012
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR YADAV
• Assessee Lawyers: NERAJ SHETH
• Keywords: Audit objection; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NO.2651/MUM./2012 ( ASSESSMENT YEAR :2005 - 06 ) KALYANJI J. TANNA (DECD) L/H DIPAK K. TANNA, 11 - A TANNA HOUSE, 2 ND FLOOR, NATHALAL PRAKASH MARG, MUMBAI 400 039 PAN AAEPD2345R . APPELLANT V/S ACIT 9(1) MUMBAI . RESPONDENT ASSESSEE BY : SHRI. NERAJ SHETH REVENUE BY : SHRI. RAJESH KUMAR YADAV DATE OF HEARING 07.03.2017 DATE OF ORDER 16.03.2016 O R D E R PER: SHAMIM YAHYA THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER OF LD. CIT - A DATED 28.2.2012 AND PERTAINS TO ASSESSMENT YEAR 2005 - 06. 2. THE GROUNDS OF APPEAL READ AS UNDER: I . THE COMMISSIONER OF INCOME - TAX (APPEALS) - 19, MUMBAI ['THE CIT (A)'] ERRED IN UPHOLDING THE VALIDITY OF THE REASS ESSMENT ORDER DATED 16TH DECEMBER 2012 PASSED BY ASST. CIT, 9 (1), MUMBAI ('THE KALYANJI J. TANNA (DECD) L/H DIPAK K. TANNA ITA NO.2651/MUM./2012 2 AO') UNDER SECTION 147 READ WITH SECTION 143(3) OF THE INCOME TAX ACT, 1961 ('THE ACT'). II . SHE FAILED TO APPRECIATE THAT THE SAID REASSESSMENT ORDER AS WELL AS THE NOTICE UND ER SECTION 148 DATED 26 TH MARCH 2010 WERE INVALID AS MUCH AS : A) THE NOTICE WAS ISSUED ON A DEAD PERSON B) THE REASSESSMENT PROCEEDINGS WERE INITIATED PURSUANT TO A MERE CHANGE OF OPINION WITHOUT THERE BEING ANY NEW MATERIAL IN POSSESSION OF THE AO TO JUST IFY THE REOPENING C) THE REASSESSMENT PROCEEDINGS WERE INITIATED PURSUANT TO AN AUDIT OBJECTION D) IN ANY EVENT, THERE IS NO ESCAPEMENT FROM ASSESSMENT OF ANY INCOME CHARGEABLE TO TAX III . THE AO OUGHT TO HAVE ACCEPTED THE CAPITAL GAINS ON TRANSFER OF S HARE OF THE DE CEASED, LATE SHRI. KALYANJI J. T AN NA IN ALIBAUG PROPERTIES AT RS. 2,70,039/ - AS ORIGINALLY COMPUTED BY THE LATE ASSESSEE IN HIS COMPUTATION OF INCOME FILED ALONG WITH THE ORIGINAL RETURN OF INCOME FILED ON 30TH AUGUST 2005, AND ALSO ACCEPTED B Y THE AO IN THE ORIG INAL ASSESSMENT ORDER DATED 31 ST AUGUST 2007 PASSED UNDER SECTION 143(3) OF THE ACT. IV . THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR WITHDRAW THE ABOVE GROUN DS OF APPEAL . KALYANJI J. TANNA (DECD) L/H DIPAK K. TANNA ITA NO.2651/MUM./2012 3 3. AT THE OUTSET IN THIS CASE LD. COUNSEL OF THE ASSESSEE SUBM ITTED THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS INVALID IN AS MUCH AS NOTICE WAS ISSUE ON A DEAD PERSON AND THE ASSESSMENT ORDER WAS ALSO FRAMED IN THE NAME OF DEAD PERSON. THIS WAS DESPITE THE FACT THAT ASSESSING OFFICE R WAS FULLY AWARE ABOUT THE DEATH OF THE ASSESSEE. THE ASSESSING OFFICER HAD DULY BEEN INTIMATED ABOUT THE DEATH OF THE ASSESSEE AND THE DEATH CERTIFICATE WAS DULY FURNISHED. LD. COUNSEL SUBMITTED THAT THE FACT THAT ASSESSING OFFICER WAS FULLY AWARE OF THE DEATH OF THE ASS ESSEE IS CLEAR FROM THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2004 - 05 WHICH WAS FRAMED BY THE ASSESSING OFFICER ON 21.12.200 6 LD. COUNSEL REFERRED TO THIS ASSESSMENT ORDER PLACED IN PAPER BOOK PAGE NO. 5 3 IN WHICH NAME OF THE ASSESSEE IS MENTIONED AS UNDER: LT. SHRI KALY ANIJI G. TANNA THROUGH LEGAL HERE MR. DIPAK K. TANNA LD. COUNSEL FURTHER REFER RED TO DEMAND NOTICE FOR ASSESSMENT YEAR 2004 - 05 DATED 21.12.2016 WHICH IS PL ACED IN PAPER BOOK PAGE NO. 52. T HE SAID NOTICE IS ALSO ADDRESSED IN THE SAME FASHION TO THE LEGAL HERE OF THE ASSESSEE. IN THE LIGHT OF THE ABOVE LD. COUNSEL SUBMITTED THAT IT IS CLEAR THAT NOTICE U/S. 148 DATED 26.03.2012 AS WELL AS THE ASSESSMENT ORDER IS FRAMED IN THE NAME OF A DEAD P ERSON DE SPITE THE ASSESSING OFFICER BEING FULLY AWARE OF THE SAME . H ENCE LD. COUNSEL PLEADED THAT THE ASSESSMENT ORDER PASSED IS AN INVALID ASSESSMENT ORDER KALYANJI J. TANNA (DECD) L/H DIPAK K. TANNA ITA NO.2651/MUM./2012 4 4. WE FIND THAT THIS ISSUE WAS ALSO RAISED BEFORE THE LD. CIT - A. BUT THE LD. CIT - A HELD THAT ASSESS EE DIDNT PRODUCE ANY DOCUMENTARY EVIDENCES T O SHOW AS SHRI. DIPAK TANNA WAS THE LEG AL HEIR OF SH RI. KALYANIJI G. TANNA. F URTHER LD. CIT - A HELD THAT ASSESSEE S CASE FELT INTO THE AMBIT OF SECTION 292 B OF THE I.T. ACT. 5. IN THIS REGARD WE MAY GAINFULLY RE FER TO THE PROVISION OF SECTION 292 B OF THE I.T. ACT AS UNDER: NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDINGS, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISIONS OF THIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMON OR OTHER PROCEEDINGS IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMM ONS OR OTHER PROCEEDINGS IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. 6 . FIRST OF ALL WE FIND THAT THE DEMAND NOTICE AND THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2004 - 05 PLACED BEFORE U S IN PAPER BOOK PAGE NO. 52 AND 53 ARE DATED 21.12.2006 AND ARE IN THE NAME OF LT. SHRI. KALY ANJI G. TANNA THROUGH LEGAL HEIR MR. DIPAK K. TANNA . T HIS AMPLY PROVES THAT ASSESSING OFFICER WAS FULLY CONSCIOUS OF THE FACTS OF THE CASE THAT THE ASSESSEE WAS DEAD AND THE ASSE SSMENT PROCEEDINGS FOR EARLIER YEAR WERE ADD RESSED IN THE NAME OF LEGAL HEIR . DESPITE THIS FOR REASONS BEST KNOWN TO THE ASSESSING OFFICER H E CHOSE TO PASS ASSESSMENT ORDER IN THE NAME OF THE DEAD PERSON. HE CH OSE TO GIVE NOTICE IN THE NAME OF THE DEAD PERSON AS KALYANJI J. TANNA (DECD) L/H DIPAK K. TANNA ITA NO.2651/MUM./2012 5 WELL AS THE PASSED THE ORDER IN THE NAME OF THE PERSON WHO WAS DEAD. THIS IN OUR CONSIDER OPINION IS A FATAL ACT WHICH CANNOT BE CURED BY REFERRING TO SECTION 292 B OF THE I.T. ACT. AS A MATTER OF FACT, IN THE ASSESSMENT ORDER ITSELF IN PARAGRAPH 2 ASSESSING OFFICER HAS DULY NOTED THAT THE ASSESSEE VIDE LETTER DATED 24.07.2010 HAD POINTED OUT THAT NOTICE U/S. 148 AND RELATED CORRESPONDENCE SHOWED THAT THE NOTICE WAS ISSUED IN THE NAME OF KALYANJI J . TANNA A PERSON WHO IS DEAD. ACCORDINGLY, THE ASS ESSEE PLACED OBJECTION TO THE NOTICE THAT THE SAME WAS BAD IN LAW. HOWEVER, THE A.O. DESPITE NOTHING THIS CHOSE TO IGNORE IT. THUS THIS MAKES IT AMPLY CLEA R THAT PASSING OF THE ORDER IN T HE NAME OF THE DEAD PE RSON WAS NOT A MISTAKE FALLING UNDER THE AMBIT OF SECTION 292 B. IN THE RESULT WE HOLD THAT THE ASSE SSMENT AND THE ORDER PASSED THERE IN ARE INVALID AND ACCORDINGLY WE QUASH THE SAME . I N THE RESULT THIS APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16.03.2016 SD/ - SD/ - RAVISH SOOD SHAMIM YAHIYA JUDICIAL MEMBER ACCOUNTANT MEMBER KALYANJI J. TANNA (DECD) L/H DIPAK K. TANNA ITA NO.2651/MUM./2012 6 MUMBAI, DATED: 16.03.2016 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . RUE COPY BY ORDER NISHANT VERMA SR. PRIVATE SECRETARY (DY./ASSTT.REGISTRAR) ITAT, MUMBAI