(Late) Byre Gowder Srikantan, R/by L/H. Subramani Srikantan, Ooty V. ITO, Ooty

ITA 3063/CHNY/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 5288 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 14-06-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 01-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI . . . , . !' , $ % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.3063/CHNY/2016 ' (' / ASSESSMENT YEAR : 2010-11 M/S BYRE GOWDER SRIKANTAN, REPRESENTED BY SON AND ONE OF THE L/H SHRI SUBRAMANI SRIKANTAN, M/S HOTEL WELBEAK RESIDENCY, 09/A, WELBECK CIRCLE, CLUB ROAD, OOTY 643 001. PAN : APFPS 0457 P V. THE INCOME TAX OFFICER, WARD 1, CHRISTO BUILDING, 2 ND FLOOR, STATE BANK ROAD, OOTY 643 001. (*+/ APPELLANT) (,-*+/ RESPONDENT) ./ ITA NO.2596/CHNY/2016 ' (' / ASSESSMENT YEAR : 2010-11 THE INCOME TAX OFFICER, WARD 1, OOTY. V. SHRI BYRE GOWDER SRIKANTAN, 127, WELBECK HOUSE, RACE COURSE ROAD, OOTY, THE NILGIRIS 643 001. (*+/ APPELLANT) (,-*+/ RESPONDENT) './ 0 1 /ASSESSEE BY : SHRI S. SRIDHAR, ADVOCATE 2 0 1 /REVENUE BY : SHRI AR.V. SREENIVASAN, JCIT 3 0 /$ / DATE OF HEARING : 03.04.2018 4!( 0 /$ / DATE OF PRONOUNCEMENT : 26.04.2018 2 I.T.A. NO.3063/CHNY/16 I.T.A. NO.2596/CHNY/16 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: BOTH THE APPEALS OF THE ASSESSEE AND REVENUE ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -3, COIMBATORE, DATED 27.05.2016 AND PERTAIN TO ASSESSM ENT YEAR 2010-11. SINCE COMMON ISSUE ARISES FOR CONSIDERATI ON IN BOTH THE APPEALS, WE HEARD BOTH THE APPEALS TOGETHER AND DIS POSING OF THE SAME BY THIS COMMON ORDER. 2. THERE WAS A DELAY OF 4 DAYS IN FILING APPEAL BY THE REVENUE. THE REVENUE HAS FILED A PETITION FOR CONDONATION OF DELAY. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIVE AND THE L D.COUNSEL FOR THE ASSESSEE. WE FIND THAT THERE WAS SUFFICIENT CA USE FOR NOT FILING THE APPEAL BEFORE THE STIPULATED TIME. THEREFORE, WE CONDONE THE DELAY AND ADMIT THE APPEAL. 3. LETS FIRST TAKE REVENUES APPEAL IN I.T.A. NO.2596/CHNY/2016. 4. SHRI AR.V. SREENIVASAN, THE LD. DEPARTMENTAL REPRESENTATIVE, SUBMITTED THAT IN THE COURSE OF ASS ESSMENT PROCEEDING, THE ASSESSEE SHRI BYRE GOWDER SRIKANTAN EXPIRED AND 3 I.T.A. NO.3063/CHNY/16 I.T.A. NO.2596/CHNY/16 THE NOTICE OF HEARING WAS SERVED ON THE LEGAL REPRE SENTATIVE SHRI S. SUBRAMANI. THE LD. D.R. FURTHER SUBMITTED THAT THE LEGAL REPRESENTATIVE HAS PARTICIPATED IN THE ASSESSMENT P ROCEEDING. HOWEVER, THE ASSESSING OFFICER WHILE PASSING THE OR DER HAS NOT REFERRED THE LEGAL REPRESENTATIVES NAME. INSTEAD, THE ORDER WAS PASSED AGAINST THE DEAD PERSON. ACCORDING TO THE LD . D.R., SINCE THE LEGAL REPRESENTATIVE PARTICIPATED IN THE PROCEE DING BEFORE THE ASSESSING OFFICER, MERELY BECAUSE THE DECEASED ASSE SSEES NAME WAS REFERRED IN THE ASSESSMENT ORDER, IT CANNOT BE SAID THAT THE ASSESSMENT ORDER IS NULL AND VOID. THE LD. D.R. PL ACED HIS RELIANCE ON THE JUDGMENT OF MADHYA PRADESH HIGH COURT IN SMT . KAUSHALYABAI V. CIT (1999) 238 ITR 1008. 5. ON THE CONTRARY, SHRI S. SRIDHAR, THE LD.COUNSEL FOR THE ASSESSEE, SUBMITTED THAT ON IDENTICAL CIRCUMSTANCES , THIS TRIBUNAL EXAMINED THE ISSUE IN SHRI M. HEMANATHAN V. CIT IN I.T.A. NO.1286/MDS/2014. THIS TRIBUNAL FOUND THAT THE ORD ER PASSED AGAINST THE DEAD PERSONS IS NULLITY IN LAW AND IT C ANNOT STAND. SINCE THE ASSESSEE WAS NO MORE ON THE DATE OF PASSING OF ORDER, ACCORDING TO THE LD. COUNSEL, THE ASSESSING OFFICER CANNOT EVEN RECTIFY THE ORDER BY INCLUDING THE NAME OF THE LEGA L HEIR. 4 I.T.A. NO.3063/CHNY/16 I.T.A. NO.2596/CHNY/16 MOREOVER, WHILE FILING APPEAL BEFORE THIS TRIBUNAL IN FORM NO.36, THE REVENUE FILED THE APPEAL AGAINST THE DEAD PERSON KN OWING FAIRLY WELL THAT SHRI BYRE GOWDER SRIKANTAN IS NOT IN EXIS TENCE AT ALL. ACCORDING TO THE LD. COUNSEL, HAVING FILED THE APPE AL AGAINST THE DEAD PERSON, THE REVENUE CANNOT RECTIFY THE ERROR C OMMITTED WHILE FILING THE APPEAL AGAINST THE DEAD PERSON BEFORE TH IS TRIBUNAL. THEREFORE, ACCORDING TO THE LD. COUNSEL, THE APPEAL FILED BY THE REVENUE CANNOT STAND IN THE EYE OF LAW. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY SUBMITTED BY THE LD.COUNSEL FOR THE ASSESSEE, THE A PPEAL BEFORE THIS TRIBUNAL WAS FILED AGAINST SHRI BYRE GOWDER SR IKANTAN ON 06.09.2016. SUBSEQUENTLY, THE REVENUE FILED THE RE VISED FORM NO.36 AS IF THE APPEAL WAS AGAINST SHRI SUBRAMANI S RIKANTAN, SON OF SHRI BYRE GOWDER SRIKANTAN. THE QUESTION ARISES FOR CONSIDERATION IS HAVING FILED THE APPEAL AGAINST TH E DEAD PERSON, NAMELY, SHRI BYRE GOWDER SRIKANTAN, CAN THE REVENUE RECTIFY THE DEFECT IN THE CAUSE TITLE AND MAKE IT AN APPEAL AGA INST THE LEGAL HEIR OF THE DECEASED ASSESSEE? THIS TRIBUNAL IN THE CAS E OF SHRI M. HEMANATHAN EXAMINED THIS ISSUE ELABORATELY AND FOUN D THAT THE 5 I.T.A. NO.3063/CHNY/16 I.T.A. NO.2596/CHNY/16 ERROR COMMITTED BY THE REVENUE IS NOT RECTIFIABLE E RROR. THE REVENUE FILED AN APPEAL BEFORE THE HIGH COURT AGAIN ST THE ORDER OF THIS TRIBUNAL IN SHRI M. HEMANATHAN (SUPRA). THE M ADRAS HIGH COURT, AFTER CONSIDERING VARIOUS CASE LAWS ON THE S UBJECT, FOUND THAT THE MISTAKE COMMITTED BY THE REVENUE IS NOT RECTIFI ABLE ONE. THEREFORE, THE ORDER PASSED AGAINST THE DEAD PERSON OR THE APPEAL FILED AGAINST THE DEAD PERSON IS NOT A VALID ONE. 7. IN VIEW OF THE JUDGMENT OF MADRAS HIGH COURT IN THE CASE OF SHRI HEMANATHAN (SUPRA), THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE JUDGMENT OF MADHYA PRADESH HIGH COURT IN T HE CASE OF SMT. KAUSHALYABAI (SUPRA) MAY NOT BE APPLICABLE TO THE FACTS OF THE CASE. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REA SON TO INTERFERE WITH THE ORDER OF THE CIT(APPEALS) IN I.T.A. NO.259 6/CHNY/2016 AND ACCORDINGLY THE SAME IS CONFIRMED. 8. NOW COMING TO THE ASSESSEES APPEAL IN I.T.A. NO.3063/CHNY/2016, THE ASSESSEE HAS FILED APPEAL AG AINST THE ORDER PASSED BY THE CIT(APPEALS) UNDER SECTION 154 OF THE INCOME- TAX ACT, 1961 (IN SHORT 'THE ACT'). SINCE THE ORDE R PASSED BY THE CIT(APPEALS), WHICH IS THE SUBJECT MATTER IN I.T.A. 6 I.T.A. NO.3063/CHNY/16 I.T.A. NO.2596/CHNY/16 NO.2596/CHNY/2016 IS CONFIRMED BY THIS TRIBUNAL, TH E APPEAL FILED BY THE ASSESSEE BECOMES INFRUCTUOUS. ACCORDINGLY, THE ASSESSEES APPEAL ALSO STANDS DISMISSED. 9. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE AND REVENUE STAND DISMISSED. ORDER PRONOUNCED ON 26 TH APRIL, 2018 AT CHENNAI. SD/- SD/- (. !' ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) $ / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 6 /DATED, THE 26 TH APRIL, 2018. KRI. 0 ,/78 98(/ /COPY TO: 1. './ /ASSESSEE 2. ASSESSING OFFICER 3. 3 :/ () /CIT(A)-3, COIMBATORE. 4. PRINCIPAL CIT-2, COIMBATORE. 5. 8; ,/ /DR 6. <' = /GF.