Asstt. Commissioner of Income Tax, Kanpur V. Shri Naveen Agarwal, Kanpur

ITA 431/LKW/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100314 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 23-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 22-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T P SINGH
• Assessee Lawyers: B P YADAV COST ACCOUNTANT
• Keywords: Source of fund

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER ITA NO.431/LKW/2014 ASSESSMENT YEAR:2005-06 ACIT CENTRAL CIRCLE I KANPUR V. SHRI. NAVEEN AGARWAL 24/46, BIRHANA ROAD ALLENGANJ, KANPUR TAN/PAN:AEQPA4608G (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. T. P. SINGH, D.R. RESPONDENT BY: SHRI. B. P. YADAV, COST ACCOUNTANT DATE OF HEARING: 23 07 2015 DATE OF PRONOUNCEMENT: 14 08 2015 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) MAINLY ON TWO GROUNDS WHICH ARE AS UNDER:- 1. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.10,51,641/- AS THE INCOME OF HUF WITHOUT APPRECIATING THE FACTS THAT INCOME OF HUF IS NOT ALLOWABLE IN INDIVIDUAL ASSESSMENT. 2. THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.5,64,871/- ON ACCOUNT OF CLAIM OF UNEXPLAINED OPENING BALANCE OF CAPITAL ACCOUNT WITHOUT APPRECIATING THE FACT THAT NO EVIDENCE REGARDING THE SOURCE OF FUND HAD EVER BEEN FURNISHED DESPITE OPPORTUNITY AFFORDED BY THE ASSESSEE. 2. DURING THE COURSE OF HEARING, IT HAS BEEN BROUGHT TO OUR NOTICE THAT THE ASSESSEE WAS EXPIRED ON 23.4.2012, BUT HIS LEGAL HEIR WAS NOT BROUGHT ON RECORD. EVEN THE REVENUE HAS FILED THE APPEAL BEFORE THE TRIBUNAL AGAINST A DEAD PERSON. IT IS ALSO NOTICED THAT THE APPEAL BEFORE THE LD. :- 2 -: CIT(A) WAS FILED ON 16.1.2008 AND IT WAS DISPOSED OF BY THE LD. CIT(A) VIDE HIS ORDER DATED 28.2.2014 AFTER A PERIOD OF SIX YEARS. SINCE THE ASSESSEE WAS EXPIRED ON 23.4.2012 DURING THE PENDENCY OF THE APPEAL BEFORE THE LD. CIT(A), THE LEGAL HEIRS SHOULD HAVE BEEN BROUGHT ON RECORD. WHEN THIS QUERY WAS RAISED TO THE LD. COUNSEL FOR THE ASSESSEE, IT WAS STATED THAT THE ASSESSEE HAS FILED WRITTEN SUBMISSION BEFORE THE LD. CIT(A) ON 7.8.2008 BUT THE LD. CIT(A) HAS DISPOSED OF THE APPEAL ON 28.2.2014. SINCE NO HEARING WAS FIXED BEFORE THE LD. CIT(A), THE ASSESSEE HAD NO OCCASION TO BRING THE LEGAL HEIR ON RECORD. 3. HAVING CAREFULLY EXAMINED THESE FACTUAL ASPECTS, WE ARE OF THE VIEW THAT ONCE THE ASSESSEE WAS EXPIRED DURING THE PENDENCY OF THE APPEAL BEFORE THE LD. CIT(A), IT WAS THE DUTY OF THE ASSESSEE TO BRING THE LEGAL HEIR ON RECORD SO THAT THE APPEAL COULD BE DISPOSED OF AGAINST THE LEGAL HEIR OF THE DECEASED ASSESSEE. BUT IN ANY CASE THE APPELLATE ORDER WAS PASSED AGAINST A DEAD PERSON, THEREFORE, IT IS NOT VALID IN THE EYES OF THE LAW. WE ACCORDINGLY SET ASIDE THE SAME AND RESTORE THE MATTER TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AGAINST THE LEGAL HEIR OF THE DECEASED ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO BRING THE LEGAL HEIR ON RECORD IN APPEAL FILED BEFORE THE LD. CIT(A). ACCORDINGLY THIS APPEAL IS DISPOSED OF. 4. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14 TH AUGUST, 2015 JJ:2307 :- 3 -: COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR