Shri Dhaval D.Patel L/h of late Dilip R. Patel, Baroda V. The Dy.CIT., Circle-2(1), Baroda

ITA 2745/AHD/2011

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0713 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-07-2016
• Assessment Year: 1995-1996
• Appeal Filed On: 04-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH SOLANKI HEARING CONCLUD
• Section: 143(3)

Judgement Text

I.T.A. NO. 2745 /AHD/201 1 ASSESSMENT YEARS: 1995 - 96 PAGE 1 OF 2 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [CORAM : PRAMOD KUMAR AM ] I.T.A. NO . 2 745 /AHD/201 1 ASSESSMENT YEAR : 1995 - 96 LATE SHRI DILIP R. PATEL . ..... ...........APPELLANT 901, ARUNDEEP COMPLEX, OPP. PUJJARI S, RACE COURSE C IRCLE , BARODA 390 001 [A EKPP 4962 N ] VS DY. COMMISSIONER OF INCOME TAX , CIRCLE 2(1), BARODA. .. ...........RESPONDENT APPEARANCES BY SUNIL TALATI FOR THE APPELLANT SATISH SOLANKI FOR THE RESPONDENT HEARING CONCLUDED ON: 26 /0 7 / 20 16 ORDER PRON OUNCED ON : 30 /08/ 20 16 O R D E R THE APPELLANT IS A LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE SHRI D ILIP R. PATEL . THE APPELLANT HAS CHALLENGED CORRECTNESS OF THE PENALTY OF RS.1,41,000/ - IMPOSED ON THE ASSESSEE UNDER SECTION 271 (1)( C) OF THE I NCOME TAX ACT , 1961 FOR THE A.Y. 1995 - 96. WHEN THIS APPEAL WAS CALLED OUT FOR HEARING, SHRI SUNIL TALATI, LEARNED C OUNSEL FOR THE ASSESSEE INVITED MY ATTENTION TO THE ORDER DATED 22.04.2016 PASSED BY A DIVISION BENCH OF THIS TRIBUNAL WHEREIN THE TRIBUNAL INTER A LIA HAS OBSERVED AS FOLLOWS : - 3. WE NOTICE AT THE OUTSET THAT THE ORIGINAL ASSESSEE EXPIRED ON 02.02.2014 I.E. WELL BEFORE PASSING OF THE IMPUGNED PENALTY ORDER DATED 27.08.2014. IT TRANSPIRES THAT THE ASSESSING OFFICER HAD FRAMED CONSE QUENTIAL ASSESSMENT UNDER SECTION 143(3) READ WITH SECTION 158BC AND 254 OF THE ACT ON 21.02.2014. THE ASSESSEE S DEMISE PRECEDES EVEN FINALISATION OF THE I.T.A. NO. 2745 /AHD/201 1 ASSESSMENT YEARS: 1995 - 96 PAGE 2 OF 2 QUANTUM ASSESSMENT IN OTHER WORDS. WE QUOTE HON BLE JURISDICTIONAL HIGH COURT S DECISION IN (2009) 313 ITR 192 (GUJ) ACIT VS. LATE SHRIMANT F.P. GAEKWAD HOLDING THAT A PENALTY WHERE AN ASSESSEE EXPIRES BEFORE PASSING OF THE PENALTY ORDER IS A NULLITY AND DELETE THE IMPUGNED PENAL ACTION UNDER CHALLENGE ON THIS SCORE ALONE. THE REVENUE S ARGUMENT SUPPO RTING THE PENALTY IN QUESTION STANDS REJECTED BECAUSE OF THE ABOVE SETTLED LEGAL POSITION. HE SUBMITS THAT IN THE PRESENT CASE ALSO THE ASSESSEE HAS PASSED AWAY ON 13.03.1999 AND HE HAS ALSO FILED DEATH CERTIFICATE OF THE ASSESSEE. IT IS POINTED OUT THAT IN VIEW OF THE FACT THAT THE ASSESSEE HAS PA SSED AWAY, AND THAT THE PENALTY UNDER SECTION 271 (1)(C) CANNOT BE IMPOSED ON A DEAD PERSON, T HE IMPUGNED PENALTY NEEDS TO BE QUASHED. LEARNED DEPARTMENTAL REPRESENTATIVE RELIES UPON THE STAND OF THE AUTHORITIES BELOW ON MERITS BUT HAS NOTHING MUCH TO SAY ON THE LEGAL PROPOSITION ADVANCE D BY THE ASSESSEE WHICH HAS BEEN APPROVED BY THE D IVISION B ENCH , A S NOTED ABOVE. IN VI E W OF THE ABOVE FACTUAL POSITION AND RESPECTFULLY FOLLOWING THE D IVISION B ENCH ORDER DATED 22. 04.2016 CITED ABOVE IN THE CASE OF LATE KARAMSIBHAI G. DESAI VS. DCIT , I DELETE THE IMPUGNED PENALTY. A SSESSEE GETS THE RELIEF ACCORDINGLY. IN THE RESULT, APPEAL IS ALLOWED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 30 TH DAY OF AUGUST, 2016. SD/ - PRAM O D KUMAR (ACCOUNTANT MEMBER) DATED: 30 TH DAY OF AUGUST , 2016 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD