ASLAM KHAN SON & LEGAL HEIR OF LATE SHRI ALTAAF HUSSEIN KHAN, MUMBAI V. ITO 17(3)(1)1, MUMBAI

ITA 3086/MUM/2011

• Counselvise Citation: 308619914 RSA 2011
• Duration Of Justice: 1 year(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 19-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAYA NK PRIYADARSHAN
• Assessee Lawyers: A L SHARMA
• Keywords: Business expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRI N.V. VASUDEVAN, J.M. AND SHRI RAJENDRA SINGH, A.M. ITA NO. : 3086/MUM/2011 ASSESSMENT YEAR : 2006-07 ASLAM KHAN SON & LEGAL HEIR OF LATE SHRI ALTAAF HUSSEIN KHAN 29-A, TANK STREET, VASIL KHAN MARG MUMBAI-400 008. PAN NO.:AACPK 8581 A INCOME TAX OFFICER WARD 17(3)(1) MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANT BY : SHRI A.L. SHARMA RESPONDENT BY : SHRI MAYANK PRIYADARSHAN DATE OF HEARING : 16.5.2012 DATE OF PRONOUNCEMENT : 16.5.2012 O R D E R PER RAJENDRA SINGH, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 17.1.2011 OF CIT(A) FOR THE ASSESSMENT YEAR 2006-07. T HE ASSESSEE IN THIS APPEAL HAS CHALLENGED THE LEGAL VALIDITY OF ASSE SSMENT ORDER IN ADDITION TO CHALLENGING THE MERIT OF DISALLOWANCE OF E XPENSES ON ACCOUNT OF LABOUR CHARGES, TRANSPORTATION CHARGES AND VAR IOUS OTHER BUSINESS EXPENSES. ITA NO.3086/M/11 A.Y.06-07 2 2. WE FIRST TAKE UP LEGAL ISSUE RELATING TO LEGAL VALI DITY OF THE ASSESSMENT ORDER ON THE GROUND THAT THE ASSESSMENT ORDER H AD BEEN MADE IN THE NAME OF THE FATHER OF THE ASSESSEE WHO WAS DEAD BEFORE THE DATE OF ASSESSMENT ORDER. NO SUCH GROUND HAD BEEN RA ISED BEFORE CIT(A). HOWEVER, IT BEING A LEGAL GROUND WHICH COULD B E ADJUDICATED ON THE BASIS OF FACTS AVAILABLE ON RECORD, IT WAS ADMITT ED BY THE TRIBUNAL FOR ADJUDICATION. 3. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THE SON OF THE ASSESSEE SHRI ASLAM KHAN HAD SUBMITTED BEFORE AO AT THE TIME OF ASSESSMENT PROCEEDINGS THAT HIS FATHER HAD DIED ON 18.1 0.2008, WHICH HAD BEEN DULY MENTIONED BY THE A.O IN THE FIRST PARA OF THE ASSESSMENT ORDER. DESPITE THIS THE AO MADE ASSESSMENT IN TH E NAME OF SHRI ALTAAF HUSSAIN KHAN, WHO WAS A DEAD PERSON. ASSESSMENT ORDER MADE IN THE NAME OF DEAD PERSON WAS NULL AND VO ID. IT WAS ACCORDINGLY URGED THAT THE ORDER SHOULD BE QUASHED. REL IANCE WAS PLACED ON THE JUDGMENT OF HONBLE SUPREME COURT IN TH E CASE OF CIT VS. AMARCHAND N. SHROFF (48 ITR 59 ) AND ON THE JUDGM ENT OF HONBLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF CIT VS. DALU MAL SHYAMUMAL (276 ITR 62). THE LD. D.R ON THE OTHER H AND ARGUED THAT ITA NO.3086/M/11 A.Y.06-07 3 THE MATTER MAY BE RESTORED TO THE FILE OF AO FOR MAK ING FRESH ASSESSMENT ORDER AFTER BRINGING THE LEGAL REPRESENTATIVE S ON RECORD. 4. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. THERE IS NO DISPUTE RAISED BY THE REVENUE THAT FATHER OF THE ASSESSEE HAD EXPIRED ON 18.10.2008 BEFORE PASSING OF THE ASSESSMENT ORDER ON 30.12.08. THE SON OF THE ASSESSEE HAD BROUGHT THIS FACT TO THE NOTICE OF THE AO WHICH WAS DULY NOTED BY HIM AND , THEREFORE, IT IS AN ADMITTED FACT THAT ASSESSMENT ORDER HAD BEEN PASSED IN THE NAME OF DEAD PERSON. THE ISSUE IS WHETHER SUCH ASSESSMENT ORDER SH OULD BE QUASHED OR MATTER MAY BE REMANDED TO AO FOR MAKIN G FRESH ASSESSMENT ORDER IN THE NAME OF LEGAL HEIRS. THIS ASPECT HAD BEEN CONSIDERED BY THE HONBLE SUPREME COURT IN THE CASE OF AMARCHAND N. SHROFF (SUPRA), IN WHICH IT WAS HELD THAT AN INDIV IDUAL ASSESSEE HAS ORDINARILY TO BE A LIVING PERSON AND THERE CAN BE NO ASSESSMENT ON A DEAD PERSON. THE HONBLE HIGH COURT OF MADHYA PRADESH IN THE CASE OF CIT VS. DALUMAL SHYAMUMAL (SUPRA), HAVE HELD THAT IN CASE WHERE ASSESSMENT HAS BEEN MADE ON A DEAD PERSON, THE TRIBUNAL IS REQUIRED TO REMAND THE CASE TO THE AO FOR ENSURING COMPLIANCE OF SECTION 159(2) BEFORE PASSING THE ORDER. WE, THEREFORE, RESPE CTFULLY FOLLOWING THE JUDGMENT OF HONBLE HIGH COURT OF MADHYA PRADESH (SUPRA) SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO T HE FILE OF AO FOR PASSING A FRESH ORDER AFTER ENSURING COMPLIANCE OF SECTION 159(2) AND ITA NO.3086/M/11 A.Y.06-07 4 IN ACCORDANCE WITH LAW. AS THE ORDER OF CIT(A) HAS BEEN SET ASIDE AND MATTER RESTORED TO AO, IT IS NOT NECESSARY FOR US TO GO I NTO MERIT OF DISALLOWANCE OF EXPENSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR ST ATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16.5.2012. SD/- SD/- (N.V. VASUDEVAN ) JUDICIAL MEMBER (RAJENDRA SINGH) ACCOUNTANT MEMBER MUMBAI, DATED: 16.5.2012. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.