Smt. Saroj Vasudev Kedarmal Agrawal Legal heir of Late Shri Vasudev Kedarmal Agrawal, Deesa V. The Pr. CIT-3, Ahmedabad

ITA 281/AHD/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0458 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 18-10-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 24-04-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SUDHIR M. MEHTA
• Keywords: Revision of order; Reassessment proceedings; Set aside
• Section: 148; 263; 143(3); 142(1); 153C

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद यायपीठ अहमदाबाद यायपीठअहमदाबाद यायपीठ अहमदाबाद यायपीठ ‘डी डीडी डी’ अहमदाबाद। अहमदाबाद। अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, AHMEDABAD BEFOREMRS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER ITA No. 281/Ahd/2023 नधा रणवष / Assessment Year: 2018-19 Smt. SarojVasudevKedarmal Agrawal, L/H of Late Shri VasudevKedarmal Agrawal, Lati Bazar, Deesa, Gujarat-385535 PAN : ABKPA 0593 K Vs. Principal Commissioner of Income-tax-3, Ahmedabad अपीलाथ / (Appellant) यथ / (Respondent) Assesseeby : Shri Sudhir M. Mehta, Advocate Revenue by : Dr. Darsi Suman Ratnam, CIT-DR स ु नवाई क तार ख/Date of Hearing : 19.10.2023 घोषणा क तार ख /Date of Pronouncement: 30.10.2023 आदेश/O R D E R PER SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER: This appeal filed by the assessee is directed against the order passed by the learned PrincipalCommissionerofIncome-Tax-3,Ahmedabad [hereinafterreferred to as “PCIT”] dated Nil, in exercise of revisionary powers under Section 263 of the Income-tax Act, 1961 [hereinafter referred to as “the Act”], for the Assessment Year 2018-19. 2. The assessee has taken the following Grounds of Appeal:- “1. The Learned Principal Commissioner of Income Tax have erred in law and on facts to invoke the revision u/s 263 of the Income Tax Act, 1961 by issuing notice u/s 263 dated 20.03.2023 and order passed dated 28.03.2023 are against dead person i.e. Late Shri Vasudev Kedarmal Agrawal expired on 03.08.2021. 2 ITA No. 281/Ahd/2023 Smt. SarojVasudevKedarmal Agrawal L/H of Late Shri VasudevKedarmal Agrawal AY :2018-19 2. In case of assessment proceeding for A. Y. 2018-19, the Assessing Officer by issuing notice u/s 142(1) dated 10.10.2019 specifically asked for the transaction in question amounting to Rs. 9,01,001/- and the stamp duty value is Rs.4,73,63,700/- and requested to furnish all the documentary evidences. And in order to that Assessee has submitted necessary documents vide letters dated 20.12.2019, 31.01.2020, 20.03.2020, 05.10.2020, 04.11.2020 and also all the details regarding the purchase of the said plot have been submitted during the course of assessment proceeding to entire satisfaction of A.O. who made all the enquiries regarding purchase of said plot and therefore the order passed u/s 143(3) is not erroneous and prejudicial to the interest of the revenue and the entire issue has been dealt with the assessing officer u/s 143(3) of the act while proceedings the scrutiny assessment. 3.The Learned Principal Commissioner of Income Tax have erred in law and without considering on facts that there is no new agreement or new land, the direction of the Hon'bleCivil Court, all the parties Le. Lakhiaapnar (Seller), Confirming parties and the purchasers have executed the said Banakhat or Samjhutikarar in the year 2015 and by the samjhutikarar the samjhuti money was fixed for Rs. 1,31,00,000/-. The old non-agriculture land for which the Banakhat was executed in the year 2006 and the final sale deed was executed in the year 2017 i.e. 06.06.2017. 4. The Learned Principal Commissioner of Income Tax have erred in law and on facts to direct AO to carry out thorough inquiries on the issues noticed during the course of assessment proceedings in pursuant to the order u/s 263 of the Act. 5.The Learned Principal Commissioner of Income Tax ought tocarefully consider the evidence and material on records throughwhich it can be verified that order passed by Assessing officer is neither erroneous and nor prejudicial to interest of revenue.” 3. At the outset, the assessee submitted before us that the order passed by the ld. PCIT under Section 263 of the Act is prima-facie invalid in the eyes of law since the order has been passed in the name of a person who had already expired at the time of passing of the 263 order. It was submitted that the 263 order was passed by the ld. PCIT on 28.03.2023 against a dead person i.e. late Shri VasudevKedarmal Agrawal who had expired on 03.08.2021. In 3 ITA No. 281/Ahd/2023 Smt. SarojVasudevKedarmal Agrawal L/H of Late Shri VasudevKedarmal Agrawal AY :2018-19 the proceedings before us, our attention was drawn to notice dated 27.02.2023 issued by the ld. PCIT in the name of Shri VasudevKedarmal Agrawal and in response to the same, the assessee filed reply dated 04.03.2023 in which it was submitted that the assessee Shri VasudevKedarmal Agrawal had expired on 03.08.2021. Further, along with the aforesaid reply dated 04.03.2023, the Death Certificate of Shri VasudevKedarmal Agarwal was also furnished before the ld. PCIT for necessary verification. Further, our attention was invited to the case of ITO vs. BhupendraBhikhalal Desai, reported in [2021] 131 taxmann.com 40 (SC), wherein the Hon’ble Supreme Court dismissed the SLP filed by the Department against the High Court’s ruling that notice issued under Section 153C of the Act against a dead person is unenforceable in law. Therefore, the case of the assessee is that, at the time of 263 proceedings, ld. PCIT was well aware of the fact that the 263 proceedings are being conducted in the name of a deceased person. Therefore, it was submitted that the order passed in the name of the deceased personby the ld. PCIT is invalid in the eyes of law and, accordingly, liable to be set aside. 4. In the case of RupaShyamsundarDhumatkar, 120 taxmann.com 323 (Bombay), the High Court held that where petitioner, a widow of original assessee, produced death certificate of her deceased husband, which indicated that notice under Section 148 was issued against a dead person, impugned notice was invalid and was to be set aside. In the case of ChandreshbhaiJayantibhai Patel, 101 taxmann.com 362 (Gujarat) , the High Court held that where original assessee died and thereafter Assessing Officer issued notice under section 148 in his name to reopen assessment and petitioner being heir and legal representative of deceased raised an objection that assessee had already expired and, therefore, notice in his name was not valid, merely because petitioner had informed Assessing Officer about death 4 ITA No. 281/Ahd/2023 Smt. SarojVasudevKedarmal Agrawal L/H of Late Shri VasudevKedarmal Agrawal AY :2018-19 of assessee and asked him to drop proceedings, it could not be construed that petitioner had participated in proceedings and, therefore, provisions of section 292B would not be attracted and notice under section 148 was to be treated as invalid. In the case of BhupendraBhikhalal Desai, 130 taxmann.com 196 (Gujarat), the High Court held that notice issued under section 153C against dead person is unenforceable in law; in such case revenue cannot contend that as they have no knowledge about death of assessee, they are entitled to plead that notice is not defective. Notably, the Hon'ble Supreme Court dismissed the SLP filed by the Department against High Court's ruling that notice issued under section 153C against dead person is unenforceable in law. In the case of Shabina Abraham Vs. Collector of Central Excise & Customs, 61 taxmann.com 95 (SC), the Hon'ble Supreme Court held that in absence of any machinery provisions to assess and collect tax from a deceased person/dissolved firm, all proceedings against such deceased person/dissolved firm abate and therefore, proceedings cannot be continued against legal representatives. In the caseof RasidLala 77 taxmann.com 39 (Gujarat) , where original assessee, namely, 'B' died on 2-12-2009 and after a period of six years Assessing Officer issued notice under section 148 in her name to reopen assessment for assessment year 2009-10 and further despite pointing out by heir of 'B' that 'B' had expired long back, he relying upon section 159 continued with reassessment proceedings against 'B', section 159 would not be applicable to instant case and, therefore impugned notice was liable to be set aside. 5. In the instant case, we observe that ld. PCIT was made aware at the initial stages of 263 proceedings that the assessee had since expired. Copy of death certificate had also been produced for necessary verification. However, despite the same, ld. PCIT proceeded to complete proceedings and pass order u/s 263 in the name of deceased person. Therefore, in view of 5 ITA No. 281/Ahd/2023 Smt. SarojVasudevKedarmal Agrawal L/H of Late Shri VasudevKedarmal Agrawal AY :2018-19 the aforesaid decisions, the order passed u/s 263 of the Act in the name of deceased assessee is liable to be set aside. 6. In the result, appeal of the assessee is allowed. Order pronounced in the open Court on 30/10/2023 at Ahmedabad. Sd/- Sd/- Sd/- (ANNAPURNA GUPTA) ACCOUNTANT MEMBER Sd/- (SIDDHARTHA NAUTIYAL) JUDICIAL MEMBER Ahmedabad;Dated 30/10/2023 **bt आदेश क !त"ल#प अ$े#षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं'धत आयकर आय ु )त / Concerned CIT 4. आयकर आय ु )त)अपील (/ The CIT(A)- 5. #वभागीय !त!न'ध ,आयकर अपील य अ'धकरण/DR,ITAT, Ahmedabad, 6. गाड/ फाईल /Guard file. आदेशान ु सार/ BY ORDER, TRUE COPY सहायक पंजीकार (Asstt.Registrar) आयकर अपील य अ'धकरण ITAT, Ahmedabad