LATE DOLLY R. PARIDIWALA THROUGH LEGAL HERI FARIDA RAJA MARKER, MUMBAI V. ITO 19(3)(1), MUMBAI

ITA 3802/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8421 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 05-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 10-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER & SHRI P.M.JAGTAP, ACCOUNTANT MEMBER. I.T.A. NO.3802/MUM/2011 ASSESSMENT YEAR : 2005-06. LATE DOLLY R. PARIDIWALA, THE INCOME-TAX OFFICER, THROUGH LEGAL HEIR VS. 19(3)(1), MUMBAI. MRS. FARIDA RAJA MARKER, C/O M/S D.C. BOTHRA & CO., 297 TARDEO ROAD, WILLIE MANSION, NANA CHOWK, MUMBAI-400 007. PAN AGKPP2129D APPELLANT. RESPONDENT . APPELLANT BY : SHRI RAJKUMAR SINGH. RESPONDENT : SHRI PARTHAWARTHY NAIK. DATE OF HEARING : 05-11-2012 DATE OF PRONOUNCEMENT : 05-11-2012. O R D E R PER P.M. JAGTAP, A.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LEARNED CIT(APPEALS)-30, MUMBAI DATED 24-02-2011. 2. THE PRELIMINARY ISSUE RAISED IN GROUND NO.1 OF T HIS APPEAL IS THAT THE ASSESSMENT U/S 143(3) HAVING BEEN MADE BY THE AO IN THIS CASE IN THE NAME OF A DEAD PERSON, THE SAME IS LIABLE TO BE QUASHED BEING NULL AND VOID. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES ON THIS ISSUE AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. THE LEARNED COUNSE L FOR THE ASSESSEE HAS SUBMITTED 2 ITA NO.3802/MUM/2011 THAT THE ASSESSEE IN THE PRESENT CASE HAD EXPIRED O N 15-06-2006 AND ALTHOUGH THE INTIMATION THEREOF WAS GIVEN TO THE AO VIDE LETTER DATED 16 TH JULY, 2007, THE AO STILL PROCEEDED TO COMPLETE THE ASSESSMENT U/S 143( 3) ON 31-12-2007 IN THE NAME OF A DECEASED PERSON. A COPY OF THE SAID LETTER IS PLACED AT PAGE 6 OF THE ASSESSEES PAPER BOOK AND PERUSAL OF THE SAME SHOWS THAT THE D EATH OF THE ASSESSEE ON 15-06- 2006 WAS INDICATED IN THE FAMILY CHART PREPARED AND FURNISHED BY THE ASSESSEE AS A PASSING REFERENCE AND THE INTIMATION OF THE DEATH O F THE ASSESSEE WAS NOT SEPARATELY AND SPECIFICALLY GIVEN TO THE AO. ON THE CONTRARY, THE NAME OF THE ASSESSEE WAS MENTIONED IN THE SAID LETTER AS MS. DOLLY R. PARID IWALA WITHOUT ANY INDICATION OF HER DEATH. MOREOVER, THE ASSESSEE WAS STATED TO BE IN RECEIPT OF THE LETTER DATED 7 TH JUNE, 2007 GIVING AN IMPRESSION THAT SHE WAS ALIVE. AT THE TIME OF HEARING BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT BE EN ABLE TO SHOW US ANY OTHER LETTER OR COMMUNICATION WHEREBY THE DEATH OF THE AS SESEE WAS SPECIFICALLY INTIMATED TO THE AO BEFORE PASSING THE ORDER U/S 14 3(3). HE HAS ALSO NOT BEEN ABLE TO SHOW THAT A COPY OF DEATH CERTIFICATE OF THE ASS ESSEE WAS FILED BEFORE THE AO OR EVEN THE DETAILS OF LEGAL HEIRS OF THE ASSESSEE WER E FURNISHED TO THE AO FOR NECESSARY ACTION. IN THE CASE OF CIT VS. DAMUMAL SH YAMULAL REPORTED IN 276 ITR 62, THE DECISION OF THE TRIBUNAL HOLDING THE ASSESS MENT ORDER PASSED BY THE AO AGAINST THE DEAD PERSON TO BE A NULLITY IN THE SIMI LAR FACTS AND CIRCUMSTANCES WAS UPHELD BY THE HONBLE MADHYA PRADESH HIGH COURT. IT WAS, HOWEVER, HELD BY THE HONBLE MADHYA PRADESH HIGH COURT THAT THE TRIBUNAL SHOULD HAVE REMANDED THE CASE TO THE AO FOR ENSURING COMPLIANCE OF SECTION 1 59 OF THE ACT AND FOR PASSING APPROPRIATE ORDER OF ASSESSMENT AFTER DUE NOTICE TO THE LEGAL REPRESENTATIVES OF THE DECEASED ASSESSEE. KEEPING IN VIEW THE DECISION OF THE HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF DAMULAL SHYAMUMAL (SUPRA) AND HAVING REGARD TO THE FACTS OF THE CASE, WE CANCEL THE ASSESSMENT MADE BY THE AO U/S 143(3) ON THE DECEASED ASSESSEE HOLDING THE SAME TO BE A NULLITY AND REMAND THE MATTER TO THE 3 ITA NO.3802/MUM/2011 AO WITH A DIRECTION TO PASS APPROPRIATE ORDER OF AS SESSMENT AFTER COMPLYING WITH THE REQUIREMENTS OF SECTION 159(2). THE LEGAL REPRE SENTATIVES OF THE ASSESSEE ARE ALSO DIRECTED TO EXTEND ALL THE POSSIBLE COOPERATIO N TO THE AO BY FURNISHING ALL THE RELEVANT PARTICULARS AND DETAILS REQUIRED BY HIM FO R THE PURPOSE OF THE SAID ASSESSMENT. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF NOV., 2012. SD/- SD/- (B.R. MITTAL) (P.M. JAGTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED: 05 TH NOV., 2012. COPY TO : 1. APPELLANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, D-BENCH. (TRUE COPY) BY ORD ER ASSTT. REGI STRAR, ITAT, MUMBAI BENCHES, MUMB AI. WAKODE