LATE SMT. GULAB DEVI SHARMA TH. L/H SH. BRIJ KISHORE SHARMA, Jaipur V. ITO, Jaipur

ITA 417/JPR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5108 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 21-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: MANISH GUPTA
• Keywords: Reassessment proceedings
• Section: 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH , - MH - TSU U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI A.D. JAIN, JM & SHRI VIKRAM SINGH YADA V, AM VK;DJ VIHY LA- @ ITA NO. 417/JP/2016 FU/KZKJ.K O'K Z @ ASSESSMENT YEARS : 2007-08 LATE SMT. GULAB DEVI SHARMA, TH. L/H BRIJ KISHORE SHARMA, 18, KRISHNA NAGAR, IMLIWALA PHATAK, JAIPUR. CUKE VS. INCOME TAX OFFICER, WARD 6(2), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ANPPS 5224 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MANISH AGARWAL & SHRI MANISH GUPTA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 08/09/2016 MN?KKS'K .KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 14/09/2016 VKNS'K@ ORDER PER: A.D. JAIN, J.M. THIS IS ASSESSEES APPEAL FOR A.Y. 2007-08 FILED AG AINST THE ORDER DATED 26/02/2016 PASSED BY THE LD. CIT(A)-II, JAIPUR , WHEREIN THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE ACTION OF AO IN PASSING THE IMPUGNED ASSESSMENT ORDER IN THE NAME OF LATE SMT. GULAB DEVI SHARMA TH. L/H SH. BRIJ ITA 417/JP/2016_ LATE SMT. GULAB DEVI SHARMA VS. ITO 2 KISHORE SHARMA WITHOUT IMPLEADING LEGAL HEIRS OF DECEASED ASSESSEE, THUS THE ORDER SO PASSED IS WITHOUT ANY AUTHORITY OF LAW AND DESERVES TO BE HOLD NULL AND VOID. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE ACTION OF LD. AO IN INITIATING THE PROCEEDINGS U/S 148 AND FURTHE R ERRED IN COMPLETING THE ASSESSMENT IN THE HANDS OF ASSESSEE APPELLANT BY IGNORING THE FACT THAT ASSESS EE WAS DEAD ON 21.02.2006 AND WAS NOT ALIVE FOR A SINGLE DAY IN THE PREVIOUS YEAR RELEVANT TO ASSESSMENT YEA R UNDER APPEAL, THUS NO PROCEEDINGS COULD BE INITIATE D AGAINST ANY DEAD PERSON WHO WAS NOT ALIVE FOR MAKING ANY ACT LIABLE TO LEVY OF TAX UNDER INCOME TAX ACT, 1961, THUS THE ACTION OF LD. AO IS ILLEGAL AND THE ENTIRE PROCEEDINGS DESERVES TO BE HOLD VOID-AB-INITIO. 2.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. ASSESSING OFFICER HAS GROSSLY ERRED IN RELYING UPON THE AGREEMENT TO SALE EXECUTED ON 13.11.06 ON WHICH DATE THE ASSESSEE WAS NOT ALIVE HENCE CANNOT BE ACT ED UPON AND THE AGREEMENT WAS EXECUTED BY FAMILY MEMBERS OF THE DECEASED ASSESSEE AGAINST WHOM NO ACTION WAS TAKEN THUS THE CONSEQUENT ORDER PASSED IN THE CASE OF ASSESSEE DESERVES TO BE HOLD BAD IN LAW. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS GROSSLY ERRED IN UPHOLDING THE ACTION OF LD. AO IN PASSING THE IMPUGNED ORDER U/S 148 ON THE BASIS OF INFORMATION REGARDING THE SALE OF IMMOVABL E PROPERTY BY GROSSLY IGNORING THE FACT THAT SUCH PROPERTY WAS SOLD BY ASSESSEE IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR I.E. A.Y. 2006-07, AND NO ITA 417/JP/2016_ LATE SMT. GULAB DEVI SHARMA VS. ITO 3 ACTION U/S 148 COULD BE TAKEN IN THE YEAR UNDER APP EAL THUS THE ORDER SO PASSED DESERVES TO BE QUASHED. 3.1 THAT THE LD. CIT(A) AS WELL AS AO HAVE FURTHER ER RED IN IGNORING THE VITAL FACT SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE SUBJECT LAND WAS ACTUALLY SOLD BY THE DECEASED ASSESSEE IN SEPTEMBER , 2005 RELEVANT TO A.Y. 2006-07 AND ALL THE DOCUMENTS WERE EXECUTED IN SEPTEMBER, 2005 (I.E. IKARARNAMA, MUKHTYARNAMA AND VASIYATNAMA) BY THE DECEASED ASSESSEE AFTER RECEIVING THE CONSIDERATION WHICH STO OD CREDITED IN HER BANK ACCOUNT, COPY OF WHICH WAS SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THUS THE ORDER SO PASSED FOR THE IMPUGNED ASSESSMENT YEAR DESERVES TO BE ANNULLED AND THE ADDITION OF RS. 58,00,500/- SO MADE IN THE IMPUGNED ASSESSMENT YEAR IN THE HANDS OF ASSESSEE DESERVES TO BE DELETED. 2. FOR THE YEAR UNDER CONSIDERATION, NO RETURN OF I NCOME WAS FILED BY THE ASSESSEE. WHILE COMPLETING THE ASSESSMENT FOR T HE A.Y. 2007-08, I.E., THE YEAR UNDER CONSIDERATION, IN THE CASE OF SHRI S HER SINGH SUNDA, THE JCIT (OSD), SIKAR, ASSESSED THE CAPITAL GAIN. IT WAS OBSERVED THAT SHRI SHER SINGH SUNDA HAD PURCHASED THE PROPERTY FROM, I NTER ALIA, THE ASSESSEE, SMT. GULAB DEVI. IN THE CASE OF THE ASSES SEE, THE PROCEEDINGS U/S 147 OF THE INCOME TAX ACT, 1961 (IN SHORT THE AC T) WERE INITIATED VIDE NOTICE U/S 148 OF THE ACT, ISSUED ON 31/3/2013 (ABP 14), FINDING THAT THE ACTUAL OWNER OF THE PROPERTY WAS, INTER ALIA, THE ASS ESSEE, AND THEREFORE, ITA 417/JP/2016_ LATE SMT. GULAB DEVI SHARMA VS. ITO 4 CAPITAL GAIN LIABILITY AROSE IN HER HANDS. THE ASSES SMENT WAS COMPLETED VIDE ORDER DATED 24/2/2014 ON THE DECEASED ASSESSEE , THROUGH L/H SHRI BRIJ KISHORE SHARMA, THOUGH, OBJECTION IN THIS REG ARD HAD BEEN RAISED BEFORE THE ASSESSING OFFICER. THE LD. CIT(A) CONFIRME D THE ASSESSMENT ON THE DEAD ASSESSEE. 3. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED TH AT THE LD. CIT(A) HAS ERRED IN UPHOLDING THE ACTION OF THE ASSESSING OFFICER IN COMPLETING THE ASSESSMENT IN THE NAME OF THE DECEASED ASSESSEE , LATE SMT. GULAB DEVI SHARMA THROUGH SHRI BRIJ KISHORE SHARMA, WITHOU T IMPLEADING THE LEGAL HEIRS OF THE ASSESSEE, THOUGH THE ASSESSEE HA D EXPIRED ON 21/2/2006 AND WAS NOT ALIVE EVEN FOR A SINGLE DAY IN THE PREVIOUS YEAR RELEVANT TO THE YEAR UNDER CONSIDERATION. 4. ON THE OTHER HAND, THE LD. SR.DR HAS PLACED STRO NG RELIANCE ON THE IMPUGNED ORDER, CONTENDING THAT IT DOES NOT STAND D ISPUTED SUCCESSFULLY, AS CORRECTLY OBSERVED BY THE LD. CIT(A), THAT THE LE GAL HEIR OF THE ASSESSEE HAD BEEN BROUGHT ON THE RECORD AND FURTHER PROCEEDI NGS WERE CARRIED OUT IN HIS HANDS. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL AVAILABLE ON THE RECORD. THE UN DISPUTED FACTS ARE ITA 417/JP/2016_ LATE SMT. GULAB DEVI SHARMA VS. ITO 5 THAT THE ASSESSEE HAD EXPIRED ON 21/02/2006. THE NO TICE U/S 148 OF THE ACT WAS ISSUED IN THE NAME OF THE DECEASED ASSESSEE ON 21/3/2013. THE ASSESSMENT ORDER WAS PASSED IN THE NAME OF THE DECE ASED ASSESSEE. THOUGH SHRI BRIJ KISHORE SHARMA WAS ARRAYED AS THE LE GAL HEIR OF THE DECEASED ASSESSEE AT THE HEAD OF THE ASSESSMENT ORD ER, NEITHER THE ASSESSMENT ORDER, NOR THE ORDER UNDER APPEAL EVINCE S EITHER THE SAID SHRI BRIJ KISHORE SHARMA OR ANYONE ELSE HAVING BEEN IMPL EADED AS LEGAL HEIR OF THE DECEASED ASSESSEE. 6. IN THE CASE OF ITO VS SIKANDAR LAL JAIN, THE A GRA BENCH OF TRIBUNAL THROUGH THIRD MEMBER, VIDE ORDER DATED 08/1 2/2010, PASSED IN ITA NO. 196, 197 AND 405/AGRA/2007 HAS HELD THAT NO TICE ISSUED ON A DEAD PERSON IS INVALID, RENDERING THE REASSESSMENT PROCEEDINGS VOID. 7. FURTHER, IN THE CASE OF ITO VS SOMNATH MALHOTRA , THE DELHI BENCH OF THE TRIBUNAL IN ITA NO. 519/DEL/2013, VIDE ORDER DATED 02/7/2015 (APB 8-11), HAS HELD THAT ISSUANCE OF THE NOTICE IN THE NAME OF A DECEASED PERSON RENDERS THE ASSESSMENT ORDER NULL A ND VOID, EVEN IF THE ORDER IS PASSED IN THE NAME OF THE LEGAL HEIRS; AND THAT THE FACT THAT THE LEGAL HEIRS ATTENDED THE PROCEEDINGS DOES NOT MAKE IT A CURABLE DEFECT U/S 292BB. ITA 417/JP/2016_ LATE SMT. GULAB DEVI SHARMA VS. ITO 6 8. NO DECISION TO THE CONTRARY HAS BEEN CITED BEFOR E US. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION IN THE CASE OF ITO VS SIKANDAR LAL JAIN & ITO VS SOMNATH MALHOTRA, (SUPRA), THE ASSESSMENT FRAMED IN THE PRESENT CASE IS ALSO QUASHED, AS HAVING BEEN INITIA TED AND FRAMED ON A DEAD PERSON. 9. NOTHING FURTHER SURVIVES FOR ADJUDICATION. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/09/2016. SD/- SD/- FOE FLAG ;KNO , - MH TSU (VIKRAM SINGH YADAV) (A.D. JAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14 TH SEPTEMBER, 2016 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- LATE SMT. GULAB DEVI SHARMA, TH. L/H B RIJ KISHORE SHARMA, JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 6(2), JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 417/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR