PRATIK ARVIND MALKAN-LEGAL HEIR AND EXECUTOR OF LATE ARVIND G MALKAN, MUMBAI V. ITO, WARD 8(1) (1), MUMBAI

ITA 2891/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92455 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 22-01-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 12-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREMANAND
• Assessee Lawyers: KETAN L VAJANI
• Keywords: Business expenditure; Reasonable cause; Condonation of delay; Reason to believe; Reassessment proceedings
• Section: 143(3); 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI . . , . , BEFORE SHRI I.P. BANSAL, JM AND RAJENDRA, AM ./ I.T.A. NO.2891/MUM/2013 ( / ASSESSMENT YEAR : 2006-07 ./ I.T.A. NO.2892/MUM/2013 ( / ASSESSMENT YEAR : 2007-08 PRATIK ARVIND MALKAN - LEGAL HEIR AND EXECUTOR OF LAND ARVIND G. MALKAN, COSMOS, PLOT NO.399, NEAR GOLDEN TOBACO, SV ROAD, VILE PARLE(WEST), MUMBAI 400056 / VS. THE ITO WARD 8(1)(1), MUMBAI. ./ ./ PAN/GIR NO. : AADPM 2450M ( / APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY SHRI KETAN L. VAJANI R ESPONDENT BY SHRI PREMANAND ' #$ / DATE OF HEARING : 05/05/2015 ' #$ / DATE OF PRONOUNCEMENT : 05/05/2015 / O R D E R PER I.P.BANSAL, J.M: BOTH THESE APPEALS ARE FILED BY THE ASSESSEE AND T HEY ARE DIRECTED AGAINST TWO SEPARATE ORDERS PASSED BY LD. CIT(A)-16 MUMBAI DATED 2006-07 AND 2007-08. THE ASSESSEE HAS FILED CONCISE GROUND S OF APPEAL FOR BOTH THE YEARS AND GROUND NO.1, FOR BOTH THE YEARS RELATES T O INVALIDITY OF THE ASSESSMENT ORDER. SUCH GROUND FOR BOTH THE YEARS RE AD AS UNDER: I. OBJECTION AGAINST CONFIRMING ASSESSMENT MADE ON THE DECEASED (A) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, THE COMMISSIONER OF INCOME-TAX (APPEALS), HEREINAFTER REFERRED TO AS TH E 'CIT (A)'. HAS ERRED IN ./ I.T.A. NO.2891&2892/MUM/2013 ( / ASSESSMENT YEAR : 2006-07& 07-08 2 CONFIRMING THE ASSESSMENT MADE BY THE ASSESSING OFF ICER ON A DECEASED PERSON. (B) Y OUR APPELLANT RESPECTFULLY SUBMITS THAT THE ASSESSMENT ON A DECEASED PERSON IS NOT JUSTIFIED AND THE SAME IS A VOID ASSE SSMENT CONSIDERING THE FACT THAT THE FACT ABOUT THE DEATH OF THE ASSESSEE WAS K NOWN TO THE ASSESSING OFFICER AT THE TIME OF COMPLETION OF THE ASSESSMENT . (C) YOUR APPELLANT ALSO SUBMITS THAT THE ABOVE MIST AKE IS NOT A CURABLE MISTAKE U/S. 292B OF THE ACT AND ACCORDINGLY THE AS SESSMENT MADE REQUIRES TO BE QUASHED. (D) IN VIEW OF THE ABOVE, THE APPELLANT PRAYS THAT THE ASSESSMENT ORDER PASSED U/S. 143(3) R.W.S. 147 OF THE ACT SHALL BE Q UASHED. 2. IT MAY BE FURTHER MENTIONED HERE THAT APPEAL FOR BOTH THE YEARS IS BELATED BY 215 DAYS FOR WHICH ASSESSEE HAS FILED AP PLICATION FOR CONDONATION OF DELAY ALONGWITH AFFIDAVIT. IN THE AFFIDAVIT LEG AL HEIR OF THE ASSESSEE HAS GIVEN FOLLOWING REASONS: I, SHRI PRATIK ARVIND MALKAN. LEGAL HEIR AND EXEC UTOR OF LATE SHRI ARVIND G. MALKAN, PRESENTLY RESIDING AT ARPANNA, JVPD S' ROAD , VILEPARLE (WEST), MUMBAI - 400 056. 00 HEREBY STATE AND SOLEMNLY AFFI RM AS UNDER: 1. STATE THAT THE ORDER OF THE COMMISSIONER OF INCO ME-TAX (APPEALS) -16 DATED I S' JUNE, 2012 FOR A.Y. 2007-08 IN ITA O. CIT(A)-16/ ITO 8(1)(1)/ IT-I02 /2011- 12 WAS DELIVERED TO MY OLD OFFICE ADDRESS AT 4, BHA RAT APARTMENTS, JUHU LANE, ANDHERI (WEST), MUMBAI - 400 058, ON 11TH JUL Y 2012. HOWEVER SAME WAS RECEIVED BY ME AT MY NEW ADDRESS AT COSMOS, NEA R GOLDEN TOBACCO, S. V. ROAD, VILEPARLE (WEST), MUMBAI - 400056 ONLY ON IS' MARCH, 2013. 2. THE LAST DATE OF FILING THE APPEAL AGAINST THE SAID ORDER BEFORE THE HON'BLE INCOME-TAX APPELLATE TRIBUNAL WAS 9TH SEPTEMBER, 20 12. THE APPEAL HOWEVER WAS FILED ACTUALLY ON 12 TH APRIL, 2013 AND HENCE THERE WAS A DELAY OF 215 DAYS. 3. I SAY THAT THE ABOVE DELAY HAS OCCURRED DUE TO THE FOLLOWING REASONS: 4. MY OFFICE PREMISES WAS SHIFTED FROM 4, BHARAT A PARTMENTS, JUHU LANE, ANDHERI (WEST), MUMBAI - 400 058, TO COSMOS NEAR GO LDEN TOBACCO, S. V. ROAD, VILEPARLE (WEST), MUMBAI - 400 056 W.E.F 01/ 07/2012 OLD PREMISES REMAINED LOCKED AND UNOCCUPIED SINCE THEN. SOCIETY WATCHMAN WAS LOOKING AFTER THE LOCKED PREMISES. THE ORDER OF CIT (A)- 16 , WAS DELIVERED TO MY OLD ADDRESS ON 11 TH JULY, 2012 BY POSTAL AUTHORITY. HOWEVER, SAME WAS PICKED UP BY MY OFFICE STAFF FROM OLD PREMISES AND WAS HA NDED OVER TO ME AT MY NEW PREMISES ONLY ON 15 TH MARCH, 2013. ./ I.T.A. NO.2891&2892/MUM/2013 ( / ASSESSMENT YEAR : 2006-07& 07-08 3 5. AS SOON AS I RECEIVED THE SAID ORDER, I APPROAC HED MY CHARTERED ACCOUNTANT. HE ADVISED ME TO FILE AN APPEAL BEFORE THE ITAT IMMEDIATELY SINCE AS PER HIS OPINION MY CASE HAS GOOD CHANCE OF SUCCESS ON MERITS. ACCORDINGLY, WE PREPARED THE APPEAL TO BE FILED BEF ORE THE ITAT AND THE SAME WAS ACTUALLY FILED ON 12 TH APRIL, 2013. 6. I SAY THAT NO PREJUDICE CAN BE CAUSE TO THE RES PONDENT IF THE DELAY IS CONDONED AND THE APPEAL IS HEARD AND DISPOSED OFF O N MERITS. I SAY THAT I HAVE ACTED BONAFIDE AND AS EXPEDITIOUSLY AS POSSIBL E. 7. I THEREFORE, PRAY THAT THE DELAY OF 215 DAYS MA Y KINDLY BE CONDONED AND THE APPEAL FILED BY ME MAY KINDLY BE HEARD ON ME R ITS. 3. IN THIS VIEW OF THE SITUATION, AFTER HEARING BOT H THE PARTIES, CONSIDERING THE CAUSE STATED IN THE AFFIDAVIT, WE H OLD THAT THE LEGAL HEIR OF THE ASSESSEE WAS PREVENTED BY REASONABLE CAUSE FOR NOT FILING THESE APPEALS WITHIN THE PRESCRIBED TIME. WE CONDONE THE DELAY AND PROCEED TO DECIDE THE APPEALS ON MERITS. 4. ON GROUND NO.1, WHICH IS REPRODUCED ABOVE, WE HA VE HEARD BOTH THE PARTIES AND THEIR CONTENTIONS HAVE CAREFULLY BEEN C ONSIDERED. WE FOUND THAT ASSESSMENT ORDER FOR BOTH THE YEARS ARE FRAMED ON 1 0/08/2011 UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 19 61(THE ACT). IN PARA 3&4 OF BOTH THE ASSESSMENT ORDERS, REASONS FOR ISSUE OF NOTICE UNDER SECTION 148 AND EVENT OF DEATH OF THE ASSESSEE ARE RECORDED AND FOR THE SAKE OF CONVENIENCE BOTH THESE PARAS ARE REPRODUCED BELOW: 3. 'IN VIEW OF. THE. ABOVE FINDINGS, THE CASE FOR A .Y 2006-07 WAS REOPENED THE RECORDING THE REASONS. THE NOTICE U/S. 148 OF THE ACT DATED 15.03.2011, ISSUED AND SERVED TO ASSESSEE ON 21.03.2011. THE REASONS FOR REOPENING .WERE COMMUNI CATED TO THE ASSESSEE VIDE LETTER DATED 30.05.2011. THE CASE IS REOPENED FOR THE FOLLOWING REASONS: 'DURING THE COURSE OF ASSESSMENZ PROCEEDINGS FOR A. Y 2005-06, IT WAS NOTICED THAT THE ASSSESSE EMPLOYED ITS INTEREST BEARING ADVANCES FOR NON BUSINESS PURPOSES AND HAD' CLAIMED ITS INTEREST AS BUSINESS EXPENSES, HEN CE, SAME WERE DISALLOWED IN THE ASSESSMENT ORDER PASSED U/ S 143(3) R.W.S 263 OF THE ACT. THE RENTAL VALUE OF THE COSMOS FLAT. WAS ALSO REVISED IN THE' ASSESSMENT OR DER FROM RS.85,289/- TO RS.4,43, 717/ -. ./ I.T.A. NO.2891&2892/MUM/2013 ( / ASSESSMENT YEAR : 2006-07& 07-08 4 . THE ABOVE ISSUES' ARE INVOLVED IN: THIS ASSESSMEN T YEAR ALSO. THE ASSESSEE HAS CLAIMED THE INTEREST EXPENSES OF R S. 7,45,502/- . AS A BUSINESS EXPENDITURE WHICH NEEDS TO BE TAXED IN VIEW OF THE FINDINGS IN ASSESSMENT ORDER FOR THE A. Y 2005- 06. HENCE, THERE IS ESCAPEMENT OF INCOME' OF RS. 7,45,502/- THE ASSESSEE IS NOT SHOWING THE RENTAL INCOME OF TH E COSMOS FLATS. IN THIS REGARD ALSO, IN' VIEW OF THE FINDING S IN THE. ASSESSMENT ORDER FOR A. Y 2005-06, THE RENTAL VALUE OF FLAT NEEDS TO BE ADOPTED RS.4,43,717/- HENCE, THERE IS ESCAPEM ENT OF INCOME OF RS. 4,43,717/- . IN THESE CIRCUMSTANCES, I HAVE REASON TO BELIEVE T HAT INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT IN TERMS O F PROVISION OF SECTION 147, EXPLANATION 2(C) OF THE INCOME TAX ACT, 1961.' . 4. VIDE THE ABOVE LETTER DATED 30.05.2011,THE ASSES SEE WAS ALSO REQUESTED TO FURNISH HIS OBJECTIONS, IF ANY. HOWEVE R, THE ASSESSEE HAD NOT RAISED ANY OBJECTIONS FOR REOPENING THE ASSESSM ENT. A SHOW CAUSE NOTICE D'ATED17.06.2011 ISSUED TO THE ASSESSEE FOR THE PROPOSED DISALLOWANCES. IN RESPONSE, ASSESSEE'S REPRESENTATIVE SHRI ATUL P. RUPARLIA C.A, ATTENDED TIME TO TIME AND FILED THE DETAILS CALLED FOR. THE ASSESSEE EXPIRED ON 21ST DECEMBER, 2007 AND THE AUTHORISED R EPRESENTATIVE OF THE ASSESSEE HAS SUBMITTED COPY OF DEATH CERTIFICAT ED AND HAS GIVEN DETAILS OF THE LEGAL HEIRS, EXECUTORS AND LEGAL REP RESENTATIVE OF THE ASSESSEE. THE ASSESSEE WAS PARTNER IN M/S. ARPANNA DEVELOPMENT CORPORATION, M/S A H CORPORATION AND M/S. KAMLA ENT ERPRISES WHICH ARE CARRYING .ON BUSINESS AS BUILDERS AND DEVELOPER S. THE ASSESSEE HAS EARNED SHARE OF PROFIT FROM THESE FIRMS, WHICH IS E XEMPT INCOME U/S.10. THE ASSESSEE HAS ALSO EARNED INTEREST ON C APITAL AND PARTNER'S REMUNERATION FROM THESE FIRMS. THE ASSESSEE WAS AL SO DIRECTOR OF M/S. ARPANA AUTOMOTIVE P. LTD. AND HAS EARNED DIRECTORS REMUNERATION. 5. AT THE TIME OF HEARING LD. AR HAS PRODUCED BEFOR E US COPY OF NOTICES ISSUED UNDER SECTION 148 AND THE COPIES OF THE SAME WERE ALSO GIVEN TO LD.DR. ON THE SAID NOTICE WHICH IS ISSUED ON 15/3/ 2011 THE NAME OF THE PERSON IS WRITTEN AS UNDER: ARVIND G.MALKANI 5.1 FROM THE ABOVE FACTS, IT IS CLEAR THAT THE NOT ICE UNDER SECTION 148 HAS BEEN ISSUED ON 15/3/2011 IN THE NAME OF SHRI ARVIND G. MALKANI, WHO DIED ON 21/10/2007 I.E. MUCH BEFORE THE ISSUE OF NOTICE UNDER SECTION 148, IN RESPONSE TO WHICH IMPUGNED ASSESSMENT HAVE BEEN FRA MED. THUS, IT IS A ./ I.T.A. NO.2891&2892/MUM/2013 ( / ASSESSMENT YEAR : 2006-07& 07-08 5 CASE WHERE NOTICE HAS BEEN ISSUED IN THE NAME OF TH E DECEASED AND ASSESSMENTS HAVE BEEN FRAMED. IT MAY ALSO BE MENTI ONED HERE THAT EARLIER ASSESSMENTS HAVE ALSO MADE UNDER SECTION 143(3) ON 5/123/2007. IN THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT REASSE SSMENT PROCEEDINGS ARE VOID-ABINITIO AS DESPITE THE FACT BEING IN THE KN OWLEDGE OF AO THAT ASSESSEE WAS DECEASED MUCH EARLIER TO ISSUE OF NOTI CE UNDER SECTION 148, THE ASSESSMENT PROCEEDINGS WERE CONTINUED ON THE BA SIS OF NOTICE ISSUED UNDER SECTION 148 OF THE ACT IN THE NAME OF THE DEC EASED PERSON. THIS IS NOT A CASE OF IRREGULARITY WHICH CAN BE CURED EITH ER UNDER SECTION 292B OR 292BB OF THE ACT AS THE SAME TOUCHED TO THE JURIS DICTION OF THE AO TO PROCEED WITH THE MATTER. UNLESS A VALID NOTICE IS ISSUED UNDER SECTION 148, REASSESSMENT PROCEEDINGS WILL NOT BE VALID AND WOUL D BE VOID-AB-INITIO. BEFORE LD. CIT(A) ASSERSSEE HAD RAISED FOLLOWING GR OUNDS NO.1 TO 3: 1) THE LEARNED AO ERRED IN PASSING THE ORDERS AG AINST SHRI ARVIND G. MALKAN WHEN IN FACT THE SAID SHRI ARVIND MALKAN EXP IRED IN 21.12.2007 AND THE ASSESSMENT AND FURTHER PROCEEDINGS RELATING THE RE TO SHOULD HAVE BEEN DONE IN THE NAME OF THE LEGAL HEIRS AND / OR THE EX ECUTORS OF SHRI ARVIND G. MALKAN.' '2) THE LEARNED AO ERRED IN NOT APPRECIATING THAT NO ASSESSMENT PROCEEDINGS CAN BE CARRIED OUT AGAINST THE DEAD INDIVIDUAL AND THE SAME SHOULD BE CARRIED OUT ONLY AGAINST: THE LEGAL HEIRS AND / OR EXECUT ORS. '3) THE LEARNED AO SHOULD HAVE HELD THAT THE ASSES SMENT OF A DEAD INDIVIDUAL IS VOID AND INVALID ON THE FACE OF IT, W HEN THE INTIMATION OF THE DEMISE OF SHRI ARVIND G. MALKAN WAS CONVEYED TO THE LEARNED AO VIDE LETTER DATED 14TH JULY, 2011. THE LEARNED A.O. HAS ALSO NO TED THIS FACT IN PARA 4 OF HIS ASSESSMENT ORDER.' 5.2 THIS ISSUE WAS DECIDED BY LD. CIT(A) AS UNDER 2.3.1. I HAVE CAREFULLY CONSIDERED THE CONTENTION OF THE APPELLANT COMPANY AS WELL AS CAREFULLY GONE THROUGH THE AVAILABLE DOCUME NTS ON RECORD. SIMILAR ISSUE HAD COME UP IN THE APPELLANT'S OWN CASE FOR A .Y. 2005-2006 & 2008-09 VIDE ORDER NO.CIT(A)-16/ITO-8(1)(1)/IT-151/2010-11 AND NO.CIT(A)-16/ITO- 8(1)(1)/IT- 250/2010-11 BOTH DATED 01.12.2011 WHERE IN IT HAS BEEN HELD THAT THIS MISTAKE IS NOT FATAL TO RENDER THE ASSESSMENT TO BE DECLARED NULL AND VOID AND IS CURABLE U/S. 292B OF THE ACT WHICH WAS SUPP ORTED BY THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF DEEPAK AGRO FOODS VS. STATE OF RAJASTHAN AND OTHERS. FOLLOWING THE SAME, THIS GROU ND OF APPEAL IS ACCORDINGLY DISMISSED. ./ I.T.A. NO.2891&2892/MUM/2013 ( / ASSESSMENT YEAR : 2006-07& 07-08 6 5.3 IN OUR CONSIDERED OPINION LD. CIT(A) HAS COMMIT TED AN ERROR IN HOLDING THAT THE MISTAKE COMMITTED BY THE AO IS CUR ABLE UNDER SECTION 292B OF THE ACT, WHICH READ AS UNDER: 292B. NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUM MONS OR OTHER PROCEEDING, FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED T O 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 , ASSES SMENT, NOTICE, SUMMONS OR OTHER PROCEEDINGS IF SUCH RETURN OF INCOME, ASSESSM ENT, NOTICE, SUMMONS OR OTHER PROCEEDINGS IS IN SUBSTANCE AND EFFECT IN CON FORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THIS ACT. 5.4 ACCORDING TO THE PROVISIONS OF SECTION 292B, TH E RETURN OF INCOME, ASSESSMENT NOTICE, SUMMON OR OTHER PROCEEDINGS IN P URSUANCE TO ANY PROVISIONS OF IT ACT SHALL NOT BE INVALID OR SHALL NOT BE DEEMED TO BE INVALID MERELY BY THE REASON OF MISTAKE, DEFECT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMON OR OTHER PROCEED INGS, IF SUCH RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEE DINGS IS IN SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDING TO THE I NTENT PURPOSE OF THE INCOME TAX ACT, 1961. FIRSTLY, IT IS NOT A CASE WH ERE ASSESSMENT HAS BEEN MADE BY MISTAKE OR THERE IS A MISTAKE OR OMISSION, BUT IT IS A CASE WHERE THE NOTICE UNDER SECTION 148 HAS BEEN ISSUED IN THE NAME OF A DECEASED PERSON AND DESPITE HAVING THE KNOWLEDGE THAT THE N OTICE HAS BEEN ISSUED IN THE NAME OF DECEASED PERSON, THE ASSESSMENT HAS BEE N FRAMED. IT IS NOT A CASE WHERE UPON BECOMING AWARE THE AO HAS CURED THE ILLEGALITY BY ISSUE OF FRESH NOTICED UNDER SECTION 148 UPON THE LEGAL HEIR OF THE DECEASED ASSESSEE. REASSESSMENT PROCEEDINGS WERE CONTINUED ON THE BASIS OF NOTICE ISSUED UNDER SECTION 148 IN THE NAME OF THE DECEASE D ASSESSEE WITHOUT HAVING REFERENCE OF LEGAL HEIR. SUCH ACT OF THE AO DOES NOT FALL WITHIN THE AMBIT OF WORDS MISTAKE, DEFECT OR OMISSION. UNLESS THE DEFICIENCY IS BY WAY OF MISTAKE, DEFECT OR OMISSION, SECTION 292B WO ULD HAVE NO APPLICATION. THE JURISDICTIONAL DEFECT CANNOT BE C URED WITH REFERENCE ./ I.T.A. NO.2891&2892/MUM/2013 ( / ASSESSMENT YEAR : 2006-07& 07-08 7 SECTION 292B. THEREFORE, THE IMPUGNED ASSESSMENT IS INVALID AND VOID-AB- INITIO AND QUASHED. 5.5 IT MAY BE MENTIONED HERE THAT DURING THE COURSE OF HEARING LD.DR REFERRED TO THE ORDER OF TRIBUNAL IN RESPECT OF A.Y 2005-06 AND 2008-09, COPY OF WHICH HAS BEEN FILED AT PAGE 27 TO 28 OF TH E PAPER BOOK. IN THE SAID CASE ASSESSEE HAD FILED APPEAL AGAINST THE ASSESSM ENT ORDER PASSED IN PURSUANCE OF ORDER OF CIT UNDER SECTION 263 OF THE ACT AND A PLEA WAS TAKEN BY THE ASSESSEE THAT ORDER PASSED BY LD. CIT UNDER SECTION 263 WAS DATED 29/3/2010 AND ASSESSEE HAD EXPIRED ON 21/12/2007, T HEREFORE, THE ASSESSMENT IS INVALID. THE TRIBUNAL HAD REMITTED T HE MATTER BACK TO THE FILE OF AO TO PASS FRESH ASSESSMENT ORDER BY BRINGING LE GAL HEIR ON RECORD ON THE GROUND THAT THE ASSESSEE DID NOT BRING IT TO TH E NOTICE OF THE AO OR CIT THAT ON THE DATE ASSESSEE WAS DECEASED AND IT WAS O BSERVED BY THE TRIBUNAL THAT IT WAS INCUMBENT UPON THE LEGAL HEIR OF THE AS SESSEE/LD. COUNSEL TO BRING TO THE NOTICE OF REVENUE AUTHORITIES ABOUT TH E DEATH OF THE ASSESSEE SO THAT THE AO COULD HAVE PROCEED AGAINST THE LEGAL HE IR AS PER PROVISIONS OF SECTION 159 OF THE ACT. WE HAVE CONSIDERED SUCH SUBMISSION OF LD.DR BUT WE FOUND THAT THE FACTS OF THE PRESENT YEARS ARE D IFFERENT FROM THE FACTS OF THOSE CASES. IN THE PRESENT CASE, DURING THE COURS E OF ASSESSMENT PROCEEDINGS, THE ASSESSEE BROUGHT THIS FACT TO THE KNOWLEDGE OF AO THAT ASSESSEE WAS DECEASED SINCE 21/12/2007 AND THIS FAC T WAS ALSO NOTED BY THE AO IN THE ASSESSMENT ORDER, THE RELEVANT PORTIO N OF WHICH HAS ALREADY BEEN REPRODUCED, THEREFORE, RELYING ON THE SAID ORD ER OF THE TRIBUNAL FOR A.Y 2005-06 AND 2008-09, WHICH IS AN ORDER DATED 25/09/ 2013 IN ITA NOS.1724 & 1725/M/2012, THE ORDER PASSED BY LD. CIT(A) CANNO T BE UPHELD. 5.6 SINCE ASSESSEE SUCCEEDS ON GROUND NO.1, WE DO N OT CONSIDER IT NECESSARY TO GO INTO OTHER GROUNDS RAISED BY THE A SSESSEE TOUCHING THE MERITS OF THE ADDITION AS THE SAME WOULD BE ACADEMI C IN NATURE. ./ I.T.A. NO.2891&2892/MUM/2013 ( / ASSESSMENT YEAR : 2006-07& 07-08 8 6. IN VIEW OF THE ABOVE DISCUSSIONS, THE APPEALS FI LED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/05/2015 ' + ,- 05/05/2015 ' SD/- SD/- (RAJENDRA) . . (I.P.BANSAL) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; , DATED 05/05/2015 !'# $#! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. 0# ( ) / THE CIT(A)- 4. 0# / CIT 5. 12 #34 , $ 34 , / DR, ITAT, MUMBAI 6. 5 / GUARD FILE. / BY ORDER, 1# # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . . .VM , SR. PS