LATE MR JITENDRA N MEHTA, MUMBAI V. ACIT CEN CIR 47, MUMBAI

ITA 2950/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3775 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 25-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Assessee Lawyers: GOVIND JAVERI AR S
• Keywords: Notice on dead person; Recovery proceedings
• Section: 271(1)(c); 143(3); 153A

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE HONBLE SH. SANDEEP GOSAIN , JM & HONBLE SH. G. MANJUNATHA, AM ./ I.T.A. NO . 2950 & 2951/MUM/2017 ( / ASSESSMENT YEAR: 2009 - 10 & 2010 - 11 ) LATE MR. JITENDRA N. MEHTA, 2601, 26 TH FLOOR, SHI TAPI HG MARG, GAMDEVI, MUMBAI - 400007. / VS. ACIT CEN CIR 47, MUMBAI, PIN - 400 007 ./ ./ PAN NO. A ALPM3745P ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI VIJAY MEHTA & SHRI GOVIND JAVERI , AR S / RESPONDENTBY : SHRI RAJEEV GUBGOTRA , DR / DATE OF HEARING : 19.12 .2018 / DATE OF PRONOUNCEMENT : 08.02.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEMBER : THE PRESENT TWO APPEAL S HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMIS S IONER OF INCOME TAX (APPEALS) - 50, MUMBAI, DATED 01.02.17 FOR AY 2009 - 10 AND AY 2010 - 11 RESPECTIVELY. 2 I.T.A. NO. 2950 & 2951 /MUM/201 7 LATE MR. JITENDRA N. MEHTA 2. SINC E THE ISSUES RAISED IN BOTH THE APPEALS ARE IDENTICAL, THEREFO RE, FOR TH E SAKE OF CONVENIENCE, THESE APPEALS ARE CLUBBED, HEARD AND DISPOSED OF BY THIS CONSOLIDATED ORDER. I.T.A. NO. 2950 /MUM/201 7 (AY 2009 - 10 ) 3. FIRST OF ALL WE TAKE UP ASSESSEE S APPEAL IN I.T.A. NO. 2 950 /MUM/201 7 (AY 2009 - 10 ) . 4 . AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF THE ASSESSEE DRAWN OUR ATTENTION TO LETTER DATED 19.11.18 FILED FOR SEEKING ADMISSION OF ADDITIONAL GROUND, WHICH ARE REPRODUCED BELOW: - I. THE LEARNED CIT(A) OUGHT TO HAVE HELD THAT THE ORDER PASSED BY THE ASSESSING O FFICER U/S.271(1)(C) OF THE ACT WAS WITHOUT JURISDICTION AND BAD IN LAW AS THE PENALTY NOTICE ISSUED BY THE ASSESSING OFFICER U1S.274 R. W . S. 271 OF THE ACT IS ILLEGAL AND WITHOUT APPLICATION OF MIND 3 I.T.A. NO. 2950 & 2951 /MUM/201 7 LATE MR. JITENDRA N. MEHTA I I THE LEARNED CIT(A) OUGHT TO HAVE HELD THAT THE ASSES SMENT ORDER PASSED BY THE ASSESSING OFFICER U/S. 153A R WS. 143(3) OF THE ACT AS WELL AS PENALTY ORDER PASSED BY THE ASSESSING OFFICER U/S.271(1)(C) OF THE ACT WERE BAD IN LAW AS THE SAME HAVE BEEN PASSED IN THE NAME OF THE DEAD PERSON WHICH IS NULLITY IN LAW. III THE APPELLANT CRAVES LEAVE TO ADD TO, ALTER, AMEND AND/OR DELETE ANY OF THE GROUNDS OF APPEAL 5. LD. AR SUBMITTED BEFORE US THAT AO HAD ISSUED NOTICE U/S 274 R.W.S. 271 OF THE ACT WITHOUT STRIKING OF THE RELEVANT PORTION OF THE CHARGE ON WHICH HE SOUGHT TO LEVY THE PENALTY. FURTHER THE SAID NOTICE IS ISSUED IN THE NAME OF LATE JATINDER N. MEHTA WITH PAN OF LATE JAINDER N. MEHTA. SIMILARLY THE NOTICE OF DEMAND U/S 156 OF THE ACT WAS ISSUED PURSUANT TO THE ASSESSMENT ORDER PASSED U/S 153A R.W. S. 143(3) OF THE ACT IN THE NAME OF LATE JATINDER N. MEHTA. HENCE, THE PROCEEDINGS INITIATED AGAINST DEAD PERSON IS NULLITY IN LAW. HOWEVER, THE SAID PLEA S WERE INADVERTENTLY OMITTED TO BE RAISED IN THE PRESENT APPEAL. IT WAS FURTHER SUBMITTED THAT THE A DDITIONAL GROUND S ARE PURELY QUESTION 4 I.T.A. NO. 2950 & 2951 /MUM/201 7 LATE MR. JITENDRA N. MEHTA OF LAW AND NO NEW FACTS ARE REQUIRED TO BE BROUGHT ON RECORD. THEREFORE, APPLICANT BE ALLOWED TO RAISE ADDITIONAL GROUNDS. 6 . ON THE OTHER HAND LD. DR SUBMITTED THAT THE APPLICATION DATED 19.11.18 IS MISCONCEIVED AN D IS LIABLE TO BE DISMISSED. 7 . AFTER HAVING HEARD THE COUNSELS ON THIS APPLICATION, WE ARE OF THE VIEW THAT THE ADDITIONAL GROUND S RAISED BY THE ASSESSEE ARE PURELY LEGAL IN NATURE AND ALL THE NECESSARY FACTS REQUIRED FOR ADJUDICATION ARE ALREADY ON THE RECORD AND THUS, NO NEW EVIDENCE S ARE REQUIRED TO BE BROUGHT ON RECORD. EVEN OTHERWISE, THESE GROUND S GOES TO THE ROOTS OF THE CASE, THEREFORE KEEPING IN VIEW THE PRINCIPLE LAID DOWN BY HONBLE SUPREME COURT IN THE CASE OF NTPC VRS CIT 229 ITR 383, JUTE CORPORATION OF INDIA VRS. CIT 187 ITR 688 (SC) AND AHMEDABAD ELECTRICITY LTD. VRS. CIT 199 ITR 351 (BOM) (FB) , W E ALLOW THE APPLICATION DATED 19.11 .18 AND ADMIT THE ADDITIONAL GROUNDS MENTIONED ABOVE FOR ADJUDICATING ON MERITS. 5 I.T.A. NO. 2950 & 2951 /MUM/201 7 LATE MR. JITENDRA N. MEHTA 8 . SINCE THE ADDITIONAL GROUNDS NOW RAISED BEFORE US GOES TO THE ROOTS OF THE CASE, THEREFORE WE HAVE DECIDED TO ADJUDICATE THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE FIRSTLY. ADDITIONAL GROUND NO. 1 & 2 9. BOTH THE ADDITIONAL GROUNDS RAISED BY THE ASSESS EE ARE INTER CONNECTED AND INTER RELATED AND RELATES TO CHALLENGING THE ORDER OF LD. CIT(A) TO THE EXTENT THAT LD. CIT(A) OUGHT TO HAVE HELD THAT THE ORDER PASSED BY THE AO U/S 271(1)(C) OF THE ACT WAS WITHOUT JURISDICTION AND BAD IN LAW AND NO PENALTY ORD ER OR ORDER OF ASSESSMENT COULD HAVE BEEN PASSED IN THE NAME OF DEAD PERSON, THEREFORE WE THOUGHT IT FIT TO DISPOSE OF THE SAME BY THIS COMMON ORDER. 10 . WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AT LENGTH AND WE HAVE ALSO PERUSED THE MATERIAL PLAC ED ON RECORD AS WELL AS THE ORDERS PASSED BY REVENUE AUTHORITIES. FROM THE RECORDS, WE NOTICE THAT THE NOTICE DATED 30.03.14 U/S 274 R.W.S. 271 OF THE ACT FOR INITIATING PENALTY PROCEEDINGS U/S 271(1) WAS ISSUED IN THE NAME OF LATE JATINDER N. MEHTA WIT H HIS PAN NO. WITHOUT 6 I.T.A. NO. 2950 & 2951 /MUM/201 7 LATE MR. JITENDRA N. MEHTA STRIKING OF THE IRRELEVANT PORTION IN THE SAID NOTICE. EVEN NOTICE U/S 156 OF THE I.T. ACT 1961 WAS AGAIN ISSUED IN THE NAME OF LATE SH. JATINDER N. MEHTA WITH HIS PAN NO. WHICH MAKES IT CLEAR THAT THE PENALTY PROCEEDINGS AND RECOVERY PROCEEDINGS WERE INITITATED AGAINST DEAD PERSON WITHOUT STRIKING OF THE IRRELEVANT PORTION OF THE NOTICE. ON THIS CONTEXT, WE HAVE PERUSED THE CITED JUDGMENT OF THE COORDINATE BENCH OF ITAT IN THE CASE ACIT VRS. VIJAY KUMAR AGRAWAL (ITA NO. 1539/KOL/17) WHEREIN THE COORDINATE BENCH OF ITAT HAD HELD THAT THE NOTICE INITIATING PENALTY PROCEEDINGS WAS ISSUED BY THE AO IN THE NAME OF ASSESSEE, WHO HAD ALREADY EXPIRED, WHICH IS NOT ENFORCEABLE IN LAW . SINCE THIS CONTENTION IS DULY SUPPORTED BY THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF ALAMELU VERAPPAN VRS. ITO (2018) 95 TAXMAN.COM 155 (MAD) , WE ACCEPT THE SAME AND HOLD THAT THE PENALTY PROCEEDINGS INITIATED AGAINST THE DEAD PERSON WAS NOT ENFORCEABLE BY LAW AND THE PENALTY IMPOSED IN PURSUANCE O F SUCH INVALID INITIATION IS NOT SUSTAINABLE. 11. FURTHER, THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VRS. M. HEMANATHAN (2016) 384 ITR 177 (MAD) HAD HELD 7 I.T.A. NO. 2950 & 2951 /MUM/201 7 LATE MR. JITENDRA N. MEHTA THAT NOTICE ON DEAD PERSON NULL AND VOID PROCEEDINGS CANNOT BE CONTINUED AGAINST LEGAL R EPRESENTATIVE. 12. APART FROM THE ABOVE JUDGMENTS, THE IDENTICAL QUESTION WAS ALSO DECIDED IN THE CASE OF SPICE INFOTAINMENT PVT. LTD. VRS. CIT (247 CTR 500) (DEL), EMERALD CO. LTD. VRS. ITO 176 TTJ 276 (KOL), ETC. 13. SINCE IN THE PRESENT CASE, NOTICE FOR INITIATION OF PENALTY WAS ISSUED IN THE NAME OF DEAD PERSON, WHICH IS NOT ENFORCEABLE IN LAW, THEREFORE WHILE RELYING UPON THE ABOVE JUDGMENTS(SUPRA), WE HOLD THAT THE PENALTY PROCEEDINGS INITIATED AGAINST THE DEAD PERSON WAS NOT ENFORCEABLE IN LAW AND THUS THE PENALTY IMPOSED U/S 271(1)(C) IN PURSUANCE OF SUCH INVALID INITIATION IS NOT SUSTAINABLE AND HENCE DELETE THE PENALTY. THUS, WE ALLOW THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. 14. SINCE WE HAVE ALLOWED THE ADDITIONAL GROUND AND DELETED THE P ENALTY, HENCE OTHER GROUNDS RAISED BY THE ASSESSEE ARE NOT BEING ADJUDICATED ON MERITS. 8 I.T.A. NO. 2950 & 2951 /MUM/201 7 LATE MR. JITENDRA N. MEHTA 15. IN THE NET RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED . ITA NO. 2951/MUM/2017 (AY 2010 - 11 ) 1 6 . NOW WE TAKE UP ASSESSEE S APPEALS IN ITA NO. 2 951/MUM/2017 (AY 2010 - 11 ) . SINCE WE HAVE ALREADY DECIDED THE SIMILAR G ROUNDS OF APPEAL IN ITA NO. 2950 /M UM/2017 FOR AY 2009 - 10 ON MERITS. THEREFORE , FOLLOWING OUR OWN DECISION IN ITA NO. 2950 /MUM /17 , WE APPLY THE SAME FINDINGS IN THE PRESENT APPEAL IN ORDER TO MAINTAIN JUDICIAL CONSISTENCY WHICH IS APPLICABLE MUTATIS MUTANDIS . 17 . IN THE NET RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE STA NDS ALLOWED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH FEB , 2019 . SD/ - SD/ - ( G. MANJUNATHA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 08 . 02 .201 9 SR.PS . DHANANJAY 9 I.T.A. NO. 2950 & 2951 /MUM/201 7 LATE MR. JITENDRA N. MEHTA / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY ORDER, . / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI