Sh. Deepak Rai Through Legal heir, Panchkula V. ITO, Panchkula

ITA 382/CHANDI/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 80933 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-10-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-10-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 11-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI T.R.SOOD, ACCOUNTANT MEMBER ITA NO. 382/CHD/2014 ASSESSMENT YEAR : 2007-08 SH.DEEPAK RAI VS. THE INCOME TAX OFFICER, THROUGH LEGAL HEIR WARD 2, SHRI SAMEER SAGAR, PANCHKULA. PANCHKULA. PAN: AGOPR9303D (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SAMEER SAGAR WITH SHRI ROHIT BECTOR, C.A. RESPONDENT BY : SHRI J.S.NAGAR, DR DATE OF HEARING : 15.10.2014 DATE OF PRONOUNCEMENT : 17.10.2014 O R D E R PER BHAVNESH SAINI, J.M. : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEAL S), PANCHKULA DATED 24.1.2011 FOR ASSESSMENT YEAR 2007- 08. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE RETU RN OF INCOME WAS FILED ON 26.3.2008 DECLARING A INCOME OF RS.3,37,621/-. THE RETURN WAS PROCESSED UNDER SECT ION 143(1) ON 13.3.2009. THE CASE WAS SELECTED FOR SC RUTINY AND STATUTORY NOTICES WERE ISSUED WHICH REMAINED UN-COM PLIED. THE ASSESSEE DESPITE SERVICE OF NOTICE FAILED TO FU RNISH REQUISITE INFORMATION. THEREFORE, EX-PARTE ASSESS MENT ORDER UNDER SECTION 144 OF THE INCOME TAX ACT WAS PASSED. THE 2 ASSESSEE HAS CLAIMED UNSECURED LOANS OF RS.2 LACS A ND SUNDRY CREDITORS OF RS.1,85,00,000/-. SINCE THE ASSESSEE FAILED TO PROVE THE SAME TO BE GENUINE AND NO DOCUMENTARY EVI DENCE IS FILED, THEREFORE, THE ADDITION OF RS.1,87,00,000/- WAS MADE AND INCOME WAS COMPUTED AT RS.1,90,57,621/-. 3. THE ADDITION WAS CHALLENGED BEFORE THE LEARNED C IT (APPEALS). IT IS WORTH TO MENTION HERE THAT THE A PPEAL WAS FILED BEFORE THE LEARNED CIT (APPEALS) BY SHRI SAME ER SAGAR CLAIMING TO BE SON OF THE ASSESSEE SHRI DEEPAK RAI. NO APPEAL WAS PREFERRED BY SHRI DEEPAK RAI IN FORM NO. 35 PERTAINING TO THE FILING OF THE APPEAL BEFORE THE L EARNED CIT (APPEALS). IT WAS CLAIMED THAT THE APPEAL WAS FIL ED BY SHRI SAMEER SAGAR BEING LEGAL HEIR OF THE ASSESSEE SHRI DEEPAK RAI. THE LEARNED CIT (APPEALS) NOTED IN THE IMPUG NED ORDER THAT IT WAS STATED BEFORE HIM AT THE APPELLATE PROC EEDINGS THAT THE ASSESSEE SHRI DEEPAK RAI WAS MISSING AND COPY O F THE FIR WAS FILED BEFORE HE ASSESSING OFFICER. THE LEARNED CIT (APPEALS), THEREFORE, NOTED THAT THE APPEAL HAS BEE N FILED BY SHRI SAMEER SAGAR AND IN THE ABSENCE OF ANY INFORMA TION ON RECORD THE APPEAL OF THE ASSESSEE WAS DISMISSED. 4. IN THE PRESENT APPEAL, SIMILARLY THE APPEAL WAS FILED IN THE NAME OF THE ASSESSEE SHRI DEEPAK RAI THROUGH LE GAL HEIR SAMEER SAGAR AND SHRI SAMEER SAGAR SON OF THE ASSES SEE SHRI DEEPAK RAI SIGNED THE APPEAL PAPERS AS HIS LEGAL HE IR. SHRI SAMEER SAGAR IN THIS APPEAL CHALLENGED THE ADDITION MADE BY THE ASSESSING OFFICER ON A SUM OF RS.1,87,00,000/-. IT IS ALSO STATED IN THE GROUNDS OF APPEAL THAT THE LEGAL REPRESENTATIVE 3 OF THE ASSESSEE HAS NOT BEEN DECLARED AS DEEMED ASS ESSEE AS PER PROVISIONS OF SECTION 159(3) AS THE MISSING PER SON IS TO BE TREATED AS DEAD WHOSE WHEREABOUTS ARE NOT KNOWN TIL L DATE. 5. AT THE TIME OF HEARING OF THE APPEAL, SHRI SAMEE R SAGAR IN PERSON APPEARED ALONGWITH SHRI ROHIT BECTOR, CHA RTERED ACCOUNTANT. THEY WERE ASKED TO EXPLAIN AS TO HOW THE APPEAL OF THE ASSESSEE IS MAINTAINABLE BECAUSE THE ASSESSE E SHRI DEEPAK RAI HAS NOT YET BEEN DECLARED DEAD. THEREF ORE, HOW THE APPEAL COULD BE FILED BY HIS SON SHRI SAMEER SA GAR AS HIS LEGAL REPRESENTATIVE. SHRI SAMEER SAGAR AND HIS C OUNSEL SHRI ROHIT BECTOR STATED BEFORE US THAT THE APPEAL IN TH E PRESENT FORM IS NOT MAINTAINABLE BECAUSE SHRI DEEPAK RAI, T HE ASSESSEE HAS YET NOT BEEN DECLARED DEAD AS HE WAS M ISSING SINCE 1.6.2009. THE LEARNED D.R. FOR THE REVENUE ALSO CONTENDED THAT THE APPEAL OF THE ASSESSEE IS NOT MA INTAINABLE BECAUSE THE APPEAL IS NOT FILED BY SHRI DEEPAK RAI, THE ASSESSEE AND THE PRESENT APPEAL IS FILED BY HIS SON SHRI SAMEER SAGAR AS LEGAL REPRESENTATIVE DESPITE THE FA CT THAT THE ASSESSEE SHRI DEEPAK RAI HAS NOT YET BEEN DECLARED DEAD AT PRESENT. 6. ON CONSIDERATION OF THE FACTS OF THE CASE AND IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES, WE ARE OF THE VI EW THAT THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE IN THE P RESENT FORM. THE SON OF THE ASSESSEE SHRI SAMEER SAGAR C LAIMED THAT HIS FATHER IS MISSING SINCE 1.6.2009 AND HAS N OT YET BEEN DECLARED DEAD EITHER BY THE POLICE WHERE FIR HAD BE EN LODGED ABOUT HIS KIDNAPPING OR BY THE COMPETENT COURT OF L AW. 4 THEREFORE, UNLESS AND UNTIL, THE ASSESSEE SHRI DEEP AK RAI IS DECLARED DEAD, HIS LEGAL REPRESENTATIVE HAVE NO RIG HT TO FILE THE APPEAL ON HIS BEHALF. SECTION 159 OF THE INCO ME TAX ACT DEALS WITH THE LIABILITY IN SPECIAL CASES AND THE L EGAL REPRESENTATIVE COULD BE SUBSTITUTED IN PLACE OF THE ASSESSEE WHERE THE ASSESSEE OR THE PERSON DIES. THERE IS NO EVIDENCE AVAILABLE ON RECORD THAT THE ASSESSEE HAS BEEN DECL ARED DEAD BY ANY LAWFUL AUTHORITY. THEREFORE, MERELY THE AS SESSEE IS MISSING WOULD NOT GIVE ANY RIGHT TO HIS SON TO CLAI M THAT HE MAY BE DECLARED A DEEMED ASSESSEE ON BEHALF OF THE ORIGINAL ASSESSEE. HE HAS NO LOCUS STANDI TO FILE THE APPEA L. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT SINCE THE APP EAL IS PREFERRED BY A THIRD PERSON ON BEHALF OF THE ASSESS EE WITHOUT HAVING ANY LEGAL AUTHORITY BY LAW IN HIS FAVOUR, TH E PRESENT APPEAL WOULD NOT BE MAINTAINABLE AND IS LIABLE TO B E DISMISSED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED IN LIMINE ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF OCTOBER, 2014. SD/- SD/- (T.R.SOOD) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 17 TH OCTOBER, 2014 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 5