The Income Tax Officer, Amritsar. V. Sh. Sunil Kumar, Amritsar.

ITA 474/ASR/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 7972 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-04-2018
• Assessment Year: 2007-2008
• Appeal Filed On: 23-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV K GUBGOTRA LD
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH. N.K.CHOUDHRY, JUDICIAL MEMBER ITA NO.474(ASR)/2016 ASSESSMENT YEAR:2007-08 INCOME TAX OFFICER WARD-5(5), AMRITSAR VS. SH. SUNIL KUMAR THROUGH L/H SMT. ACHLA KUMAR 1, RAI BAHADUR PARKASH CHAND ROAD, AMRITSAR PAN:ACZPK7039C (APPELLANT) (RESPONDENT) APPELLANT BY: SH. RAJEEV K. GUBGOTRA (LD. D R) RESPONDENT BY: NONE DATE OF HEARING: 09.04.2018 DATE OF PRONOUNCEMENT: 12.04.2018 ORDER PER N.K.CHOUDHRY, JM: THE INSTANT APPEAL HAS BEEN PREFERRED BY THE REVENUE DEPARTMENT, ON FEELING AGGRIEVED AGAINST THE ORDER DATED 03.06.2016 PASSED BY THE LD. CIT(A)-2, AMRITSAR, U/S 25 0(6) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE A CT). 2. THE FOLLOWING GROUNDS OF APPEAL RAISED BY THE REVENUE DEPARTMENT. 1. WHERE THE LD. CIT(A) IS RIGHT IN QUASHING THE ASSESSMENT ORDER IGNORING THE FACTS ON RECORD THAT THE ASSESSM ENT WAS COMPLETED IN THE NAME OF ASSESSEE THROUGH LEGAL HEI R. ITA NO.474/ASR/2016 (ASST. YEAR: 2007-08) ITO VS. SH. SUNI L KUMAR, AMRITSAR 2 2. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUNDS OF APPEAL ON OR BEFORE THE APPEAL IS HEARD AND DISPOSE D OFF. 3. IT IS PRAYED THAT THE ORDER OF THE LD. COMMI SSIONER OF INCOME TAX (APPEALS)-2, AMRITSAR BE SET ASIDE AND T HAT OF THE AO BE RESTORED ON MERITS. 3. IN THE INSTANT CASE, THE ASSESSMENT RELEVANT TO ASST. YEAR: 2007-08 WAS REOPENED U/S 148 OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) AND THE NOTICE DATED 11.03.2014 U/S 143 WAS ISSUED IN THE NAME OF THE ASSESSEE WHICH ALLEGED TO BE DULY SERVED ON THE ASSESSEE ON 13.03. 2014 AND THEREAFTER, MANY NOTICES HAVE BEEN ISSUED IN THE NA ME OF THE ASSESSEE, HOWEVER, NONE APPEARED ON BEHALF OF THE A SSESSEE AND IN THAT EVENTUALITY, THE ASSESSING OFFICER AFTER TAK ING INTO CONSIDERATION OF RELEVANT MATERIAL AVAILABLE ON RECORD OPINED THAT IT IS ESTABLISHED THE AMOUNT OF RS.38,25,312 HAS BEEN IN VESTED IN MUTUAL FUNDS BY THE ASSESSEE DURING THE FINANCIAL YEAR : 2006- 07 RELEVANT TO 2007-08 FROM HIS UNDISCLOSED SOURCE AND TH E SAME WAS ADDED TO THE TAXATION INCOME OF THE ASSESSEE TREA TING AS INCOME OF THE ASSESSEE FROM UNDISCLOSED SOURCES. 4. THE ASSESSMENT ORDER WAS CHALLENGED BY SMT. ACHLA KUMAR WIFE OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE WAS EXPIRED ON 10.06.2007 AND THEREFORE, HAD NOT FILED ANY INCOME TAX RETURN FOR ASST. YEAR: 2006-07 AND THE ASSESSMENT ORD ER OF ASST. YEAR: 2006-07 U/S 143(3) DATED 05.12.2008 DULY R ECORDS THE FACTS OF HIS DEATH WHICH GOES TO SHOW THAT THE REVEN UE DEPARTMENT WAS AWARE OF THE DEATH OF SH. SUNIL KUMAR , (THE ASSESSEE) HEREIN, HOWEVER, THE NOTICE U/S 148 WAS ISSUED IN THE ITA NO.474/ASR/2016 (ASST. YEAR: 2007-08) ITO VS. SH. SUNI L KUMAR, AMRITSAR 3 NAME OF SH. SUNIL KUMAR (DECEASED) ON 11.3.2014 AND THEREFORE, QUESTIONED AS TO HOW A NOTICE CAN BE SERVED U PON A DEAD PERSON. FURTHER, IT WAS ARGUED BY THE APPELLANT THAT NO NOTI CE WAS EVER ISSUED BY THE AO IN THE NAME OF THE APPELLANT HE REIN AS LEGAL HEIR OF LATE SH. SUNIL KUAMR, HENCE, COULD NOT ATTEND THE ASSESSMENT PROCEEDING OR FILE HER OBJECTIONS. FURTHER, IT WAS ALSO ARGUED THAT AO WAS ERRED IN ASSUMIN G JURISDICTION BY ISSUING NOTICE U/S 148 IN THE NAME OF D EAD PERSON WHICH IS ILLEGAL AND VOID AB INITIO , AND HENCE, LIABLE TO BE QUASHED. 5. THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE APPELLA NT AND PASSED A REASONED ORDER, HOWEVER, THE REVENUE AUT HORITY PREFERRED THE INSTANT APPEAL AND IN SUPPORT OF ITS CASE , IT WAS SUBMITTED THAT LD. CIT(A) WAS NOT RIGHT IN QUASHING TH E ASSESSMENT ORDER IGNORING THE FACTS ON RECORD THAT ASSESSMENT WAS COMPLETED IN THE NAME OF THE ASSESSEE THROUGH LEGAL HEIR AND PRAYED FOR SETTING ASIDE THE ORDER PASSED BY THE LD . CIT(A) AND RESTORING THE SAME TO THE AO TO BE DECIDED ON MERI T. 6. WE HAVE GONE THROUGH WITH THE FACTS AND CIRCUMSTANCES OF THE CASE AND RIVAL SUBMISSIONS OF THE PARTIES, AS IN THE I NSTANT CASE, IT IS NOT IN DISPUTE THAT THE ASSESSEE HAD EXPIRED ON 10 TH JUNE, 2007 AND FACTUM OF THE SAME HAVE DULY BEEN RECO RDED IN THE ASSESSMENT ORDER QUA ASST. YEAR:2006-07. HOWEVER, REASO N BEST KNOWN TO THE ASSESSING OFFICER, THE NOTICE U/S 148 WAS ITA NO.474/ASR/2016 (ASST. YEAR: 2007-08) ITO VS. SH. SUNI L KUMAR, AMRITSAR 4 ISSUED IN THE NAME OF THE DECEASED ASSESSEE, WHICH IS NOT REFUTED AND/OR DENIED BY THE REVENUE DEPARTMENT AND IT IS SETTLED LAW THAT ASSUMING JURISDICTION BY ISSUING A NOTI CE U/S 148 IN THE NAME OF DEAD PERSON ITSELF ILLEGAL AND VOID AB INITIO , THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT ONCE THE NOTICE INDISPUTABLY HAS BEEN ISSUED IN THE NAME OF DEAD PERSON, IN THAT EVENTUALITY, THE PROCEEDINGS IN PURSUANCE THERETO SHALL TANTAMOUNT TO VOID AB-INITIO AND DO NOT HAVE ANY STAND IN THE EYES OF LAW. HENCE, ON THE AFORESAID ANALYZATION, CONSIDERATION AND OBSERVATION, WE ARE OF THE CONSIDERED OPINION THAT THE ORDER PASSED BY THE LD. CIT(A) DO NOT SUFFERS FROM ANY ILLEGA LITY, PERVERSITY AND IMPROPRIETY AND THEREFORE, WE UPHOLD THE SAME. 7. IN THE RESULT , THE APPEAL FILED BY THE REVENUE DEPARTMENT STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.04.2018. SD/- SD/- (SANJAY ARORA) (N.K.CHOUDHRY) ACCOUNTANT MEMBER JUDIC IAL MEMBER DATED: 12.04.2018 /PK/ PS. COPY OF THE ORDER FORWARDED TO: (1) SH. SUNIL KUMAR AMRITSAR (2) THE ITO, WARD-5(5), AMRITSAR (3) THE CIT(A)-2, AMRITSAR (4) THE CIT CONCERNED. (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER