Sri K H Gurunath, Bengaluru V. Income Tax Officer, Ward-5(2)(3), Bengaluru

ITA 2665/BANG/2017

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 8907 (ITAT-BANGALORE)
• Duration Of Justice: 3 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-07-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 08-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Set aside
• Section: 143(3); 147

Judgement Text

ITA NO.2665/BANG/2017 SRI K.H. GURUNATH, BANGALORE IN THE INCOME TAX APPELLATE TRIBUNAL ABENCH: BANGALORE BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.2665/BANG/2017 ASSESSMENT YEAR: 2013 14 SRI K.H. GURUNATH, L/R OF SRIHARI LAKSHMANSA KHODAY -INDL NO.9, KHODAY HOUSE SESHADRI ROAD GANDHINAGAR BENGALURU 560 009 PAN NO :ADTPK0670J VS. ITO WARD-5(2)(3) BENGALURU APPELLANT RESPONDENT APPELLANT BY : SHRI V. SRIDHAR, A.R. RESPONDENT BY : SHRI KANNAN NARAYANAN, D.R. DATE OF HEARING : 01.07.2021 DATE OF PRONOUNCEMENT : 09.08.2021 O R D E R PERB.R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 20.9.2017 PASSED BY LD. CIT(A)-5, BENGALURU AND IT RELATES TO THE ASSESSMENT YEAR 2013-14. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD. CIT(A) IN UPHOLDING THE ADDITION OF RS.78,54,981/- MADE BY THE A.O. U/S 41(1) OF THE INCOME-TAX ACT,19 61 ['THE ACT' FOR SHORT]. 2. AT THE OUTSET, WE NOTICE THAT THE APPEAL BEFORE US HAS BEEN FILED BY LEGAL REPRESENTATIVE OF THE ASSESSEE NAMED SRIHARI ITA NO.2665/BANG/2017 SRI K.H. GURUNATH, BANGALORE PAGE 2 OF 6 LAKSHMANSA KHODAY. IN THE WRITTEN SUBMISSION, IT I S STATED AS UNDER: THE COMMISSIONER OF INCOME-TAX (APPEALS) IN HIS AF ORESAID ORDER HAS UPHELD THE ORDER OF ASSESSMENT PASSED BY THE AS SESSING OFFICER UNDER SECTION 143(3) DATED 29.3.2016. A COPY OF TH E ASSESSMENT ORDER DATED 29.3.2016 IS ENCLOSED HEREWITH AND MARK ED AS ANNEXURE-II. THE ORDER OF ASSESSMENT HAS BEEN MADE ON 29.3.2016 IN THE NAME OF SRI K.L. SRIHARI. SRI K.L. SRIHARI DIED ON 31.10.2016. DURING THE APPEAL PROCEEDINGS SRI K.H. GURUNATH WAS BROUGHT ON RECORD AS LEGAL REPRESENTATIVE OF SR I K.L. SRIHARI. THE APPELLATE ORDER HAS BEEN MISTAKENLY PASSED IN T HE NAME OF SRI K.L. SRIHARI. A LETTER DATED 8.8.2017 WAS SUBMITTE D TO THE COMMISSIONER OF INCOME-TAX (APPEALS) BRINGING SRI K .H. GURUNATH ON RECORD. A COPY OF THE LETTER DATED 8.8 .2017 IS ENCLOSED HEREWITH AND MARKED AS ANNEXURE-III. THE APPEAL BEFORE ITAT HAS BEEN PREFERRED BY SRI K.H. GURUNATH, AS A LEGAL REPRESENTATIVE. 3. WE NOTICE THAT THE LD CIT(APPEALS) HAS PASSED HI S ORDER ON 20-09-2017 IN THE NAME OF SRIHARI LAKSHMANSA KHODAY . HOWEVER HAS EXPIRED ON 31.10.2016, I.E., PRIOR TO THE PASSI NG OF APPELLATE ORDER BY LD CIT(A). WE ALSO NOTICE THAT THE LD REP RESENTATIVE OF THE ASSESSEE HAS INFORMED ABOUT DEATH OF THE ASSESSEE T O THE LD. CIT(A), VIDE HIS LETTER DATED 8.8.2017 FILED BEFORE LD. CIT(A). THE COPY OF SAID LETTER IS PLACED AT PAGE 21 OF THE PAP ER BOOK. WE ALSO NOTICE THAT THE COPY OF THE ABOVE SAID LETTER BEARS THE SEAL OF THE O/O COMMISSIONER OF INCOME TAX DATED 14 TH AUGUST 2017. FOR THE SAKE OF CONVENIENCE, WE FURNISH BELOW THE SCANNED T HE COPY OF LETTER FURNISHED BEFORE US:- ITA NO.2665/BANG/2017 SRI K.H. GURUNATH, BANGALORE PAGE 3 OF 6 4. IN SPITE OF THE ABOVE SAID COMMUNICATION, WE N OTICE THAT THE LD. CIT(A) HAS PASSED THE ORDER IN THE NAME OF SRI SRIH ARI LAKSHMANSA KHODAY WHO WAS NO MORE ON THE DATE WHEN THE APPEAL ORDER WAS PASSED BY LD. CIT(A). IT IS WELL SETTLED PROPOSITI ON OF LAW THAT THE ITA NO.2665/BANG/2017 SRI K.H. GURUNATH, BANGALORE PAGE 4 OF 6 ORDER CANNOT BE PASSED ON DEAD PERSON AND THE PROCE EDINGS CAN BE CONTINUED ON HIS LEGAL REPRESENTATIVE ONLY AS PER T HE PROVISIONS OF SEC.159 OF THE ACT, WHICH READ AS U NDER:- 159. (1) WHERE A PERSON DIES, HIS LEGAL REPRESENTA TIVE SHALL BE LIABLE TO PAY ANY SUM WHICH THE DECEASED WOULD HAVE BEEN LIAB LE TO PAY IF HE HAD NOT DIED, IN THE LIKE MANNER AND TO THE SAME EXTENT AS THE DECEASED. 2. FOR THE PURPOSE OF MAKING AN ASSESSMENT (INCLUDI NG AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 147 ) OF THE INCOME OF THE DECEASED AND FOR THE PURPOSE OF LEVYING ANY SUM IN THE HANDS OF THE LEGAL REPRESENTATIVE IN ACCORDANCE WITH THE PROVISIONS OF SUB-SECTION (1), A. ANY PROCEEDING TAKEN AGAINST THE DECEASED BEFORE HIS DEATH SHALL BE DEEMED TO HAVE BEEN TAKEN AGAINST THE LEGA L REPRESENTATIVE AND MAY BE CONTINUED AGAINST THE LEG AL REPRESENTATIVE FROM THE STAGE AT WHICH IT STOOD ON THE DATE OF THE DEATH OF THE DECEASED; B. ANY PROCEEDING WHICH COULD HAVE BEEN TAKEN AGAIN ST THE DECEASED IF HE HAD SURVIVED, MAY BE TAKEN AGAINST T HE LEGAL REPRESENTATIVE; AND C. ALL THE PROVISIONS OF THIS ACT SHALL APPLY ACCOR DINGLY. 3. THE LEGAL REPRESENTATIVE OF THE DECEASED SHALL, FOR THE PURPOSES OF THIS ACT, BE DEEMED TO BE AN ASSESSEE. 4. EVERY LEGAL REPRESENTATIVE SHALL BE PERSONALLY L IABLE FOR ANY TAX PAYABLE BY HIM IN HIS CAPACITY AS LEGAL REPRESENTATIVE IF, WHILE HIS LIABILITY FOR TAX REMAINS UNDISCHARGED, HE CREATES A CHARGE ON OR DIS POSES OF OR PARTS WITH ANY ASSETS OF THE ESTATE OF THE DECEASED, WHICH ARE IN, OR MAY COME INTO, HIS POSSESSION, BUT SUCH LIABILITY SHALL BE LIMITED TO THE VALUE OF THE ASSET SO CHARGED, DISPOSED OF OR PARTED WITH. HENCE, THE ORDER PASSED BY LD. CIT(A) IS AGAINST TH E MANDATE OF PROVISIONS OF SEC.159 AND ACCORDINGLY, THE SAME WOU LD GET VITIATED. ACCORDINGLY, WE ARE OF THE VIEW THAT ORDER OF LD CI T(A) SHOULD BE CONSIDERED AS NON-EST IN THE EYES OF LAW. IN THAT VIEW OF THE MATTER, THE APPEAL FILED BY THE ASSESSEE BEFORE HIM SHOULD BE CONSIDERED AS STILL PENDING BEFORE HIM. 5. WE NOTICE THAT THE LD. CIT(A) HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE BEFORE HIM AND HENCE THE ASSESSEE H AS NOT GOT ANY RELIEF FROM LD. CIT(A), WHICH HAS COMPELLED THE LEG AL HEIR OF THE ITA NO.2665/BANG/2017 SRI K.H. GURUNATH, BANGALORE PAGE 5 OF 6 ASSESSEE TO FILE AN APPEAL BEFORE THE TRIBUNAL. HO WEVER, SINCE THE ORDER PASSED BY LD. CIT(A) WOULD BE NON-EST IN THE EYES OF LAW, WE CANNOT PROCEED UPON THE APPEAL FILED BEFORE US UNLE SS A FRESH ORDER IS PASSED ON THE LEGAL REPRESENTATIVE IN ACCORDANCE WITH THE PROVISIONS OF SEC.159 OF THE ACT. ACCORDINGLY, THE APPEAL FILED BEFORE US IS RESTORED TO LD. CIT(A) FOR THE REASONS STATED ABOVE. 6. ACCORDINGLY, WE SET ASIDE THE ORDER PASSED B Y LD CIT(A) AND RESTORE ALL THE ISSUES TO HIS FILE FOR ADJUDICATING THEM AFRESH, AFTER AFFORDING HIM ADEQUATE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. WE ALSO MAKE IT CLEAR THAT THE LD. CIT(A) SHOULD AP PRISE THE ISSUES AFRESH WITHOUT BEING INFLUENCED BY THE DECISION ALR EADY RENDERED BY LD CIT(A) EARLIER IN THE FIRST ROUND. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9 TH AUG, 2021 SD/- (BEENA PILLAI) JUDICIAL MEMBER SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 9 TH AUG,2021. VG/SPS ITA NO.2665/BANG/2017 SRI K.H. GURUNATH, BANGALORE PAGE 6 OF 6 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.