LATE MANEKLAL C. CHOKSI, MUMBAI V. DCIT CEN CIR 46, MUMBAI

ITA 533/MUM/2013

• Counselvise Citation: 53319914 RSA 2013
• Duration Of Justice: 2 year(s) 8 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-10-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 18-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N P SINGH
• Section: 234B

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI B BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & SAKTIJIT DEY ,JUDICIAL MEMBER /. ITA NO. 533 /MUM/2013 , / ASSESSMENT YEAR - 200 4 - 05 LATE MANEKLAL C. CHOKSI BLOCK H, SHRI SADASHIV CHS LTD., 6 TH ROAD SANTACRUZ (E) MUMBAI - 400 055. PAN: AERPS 3198 L VS DY. CIT, CENTRAL CIRCLE - 46 ROOM NO.659, AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( / APPELLANT ) ( / RESPONDENT ) /ASSESSEE BY : SHRI BHUPENDRA SHAH / REVENUE BY : SHRI N.P. SINGH CIT - DR / DATE OF HEARING : 29 - 09 - 2015 / DATE OF PRONOUNCEMENT : 29 - 09 - 2015 , 1961 254 ( 1 ) ORDER U/S.254(1)OF THE INCOME - TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DT. 30.11.2012 OF CIT(A) - 38,MUMBAI THE ASSESSEE HAS FILED FOLLOWING GROUNDS O F APPEAL: FOLLOWING GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO EACH OTHER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER. 2. THE LEARNED. C OMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THE FACT THAT THE ORDER IS PASSED BY THE ASSESSING OFFICER WITHOUT PROVIDING SUFFICIENT OPPORTUNITY OF HEARING TO THE APPELLANT. 3. THE LEARNED. COMMISSIONER OF IN COME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN PASSING THE ORDER WITHOUT PROVIDING OPPORTUNITY OF HEARING TO THE APPELLANT. 4.THE LEARNED. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THE FACT THAT NO EVIDENCE OF THE VALID SATISFACTION HAS BEEN BROUGHT ON RECORD BEFORE THE ISSUE OF NOTICE U/S 153C OF THE ACT. 5. THE LEARNED. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS BY APPLYING 2% RATE OF INCOME INSTEAD OF 0.15% WITHOUT APPRECIATING THE FACT THAT NO EVIDENCE CORROBORATING THE RATE OF 2% HAS BEEN FOUND DURING & AFTER THE COURSE OF SEARCH PROCEEDINGS AGAINST THE APPELLANT. 6. THE LEARNED. COMMISSIONER OF INCOME TAX (APPEALS) HAVE ERRED IN LAW AND FACTS IN CONFIRMING TH E ADDITIONS MADE UNDER THE ACT AMOUNTING TO RS 1,03,343/ - 7.THE LEARNED. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS CONFIRMING THE ADDITIONS MADE BY ASSESSING OFFICER AT 2% ON THE GROSS DEPOSITS AS AGAINST 0.15% OFFERED BY THE APPELLANT 8. THE LEARNED. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS BY CONFIRMING THE ASSESSMENT MADE U/S. 153C MADE BY THE ASSESSING OFFICER WITHOUT APPRECIATING THE FACT THAT ITA/ 533/13 ,AY. 0 4 - 05, MANEKLAL 2 ONLY THE INCOME WHICH IS BASED ON THE EVI DENCES FOUND AS A RESULT OF SEARCH CAN BE ASSESSED IN THE PRESENT ASSESSMENT. 9. THE LEARNED. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN LAW AND IN FACTS IN CONFIRMING THE ACT OF ASSESSING OFFICER OF LEVYING INTEREST U/S. 234B AND 234C OF THE ACT.. 10. THE APPELLANT CRAVES LEAVE OF YOUR HONOUR TO ADD TO, ALTER, AMEND AND OR DELETE ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL. DURING THE COURSE OF HEARING,IT WAS BROUGHT TO OUR NOTICE BY THE AUTHORISED REPRESENTATIVE(AR) THAT AN ACTI ON U/S.132(1)OF THE ACT WAS CARRIED OUT IN THE MAHASAGAR GROUP AND THE DIRECTORS OF THE GROUP COMPANIES INCLUDING THE ASSESSEE ON 25.11.2009,THAT THE AO COMPLETED THE ASSESSMENT OF THE ASSESSEE ON 08.12.2011,U/S.153 C R.W.S.143(3)OF THE ACT DETERMINING THE INCOME OF THE ASSESSEE AT RS.1,10, 290/ - ,THAT THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA)WHO CONFIRMED THE ORDER OF THE AO,THAT THE ASSESSEE HAD EXPIRED ON 06.01.2007,THAT THE ASSESSMENT MADE ON THE DEAD PERSON WAS VOID.HE R EFERRED TO THE DEATH CERTIFICATE OF THE ASSESSEE ISSUED BY THE SURAT MUNICIPAL CORPORATION(CERTIFICATE NO.0058574). THE DEPARTMENTAL REPRESENTATIVE LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 2.WE FIND THAT THE AO HAD MENTIONED THE NAME OF THE ASSESSE E AS LATE SHRI MANEKLAL CHOKSI IN THE ASSESSMENT ORDER,THAT THE APPEAL BEFORE THE FAA WAS FILED BY ONE MUKESH CHOKSI,THAT MUKESH CHOKSI HAD VERIFIED THE FORM NO.35,THAT THE FAA HAS ALSO DECIDED THE APPEAL FILED BY LATE MANEKLAL CHOKSI.ON A SPECIFIC QUERY B Y THE BENCH AR ADMITTED THAT FACT OF DEATH OF THE ASSESSEE WAS NEVER BROUGHT TO THE NOTICE OF THE AO/FAA AND THE DEATH CERTIFICATE WAS NOT PRODUCED BEFORE THEM.WE ARE UNABLE TO UNDERSTAND AS HOW AN ASSESSMENT CAN BE MADE IN THE YEAR 2011 OF A PERSON WHO HA D EXPIRED IN THE YEAR 2007 I.E.FOUR YEARS BEFORE THE ASSESSMENT WAS COMPLETED.IT APPEARS THAT SEARCH WARRANT WAS ALSO ISSUED IN THE CASE OF THE DEAD PERSON.THE FAA HAD,BEFORE PASSING AN ORDER OF 29 PAGES,NOT CHECKED THE BASIC FACT AS TO WHO HAD SIGNED AND VERIFIED THE FORM NO.35 IN SPITE OF THE FACT THE ASSESSMENT ORDER WAS PASSED IN THE NAME OF LATE MANEKLAL CHOKSI AND NAME OF HIS LEGAL HEIR/S WAS NOT APPEARING. WE ARE OF THE OPINION THAT THE ASSESSMENT MADE IN CASE OF A DEAD PERSON IS VOID.HONBLE HIGH CO URTS OF DELHI, MP AND P&H,HAVE IN THE CASES OF R.C.JAIN(140TAXMAN),SANTOSH RANI(88 TAXMAN209)RAKEHSKUMAR,MUKESHKUMAR(178TAXMAN)RESPECTIVELY,HELD THAT SUCH ASSESSMENT ARE VOID.RESPECFULLY,FOLLWING THE ABOVE JUDGMENTS,WE HOLD THAT THE ASSESSMENT MADE BY THE AO WAS INVALID AND AB INITIO VOID. AS A RESULT,APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. . ORDER PRONOUNCED IN OPEN COURT ON 29 TH ,SEPTEMBER,2015. 29 , 2015 SD/ - SD/ - ( / SAKTIJIT DEY ) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, /DATE: 29 .09 . 2015 . . . JV . SR.PS. ITA/ 533/13 ,AY. 0 4 - 05, MANEKLAL 3 / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCER NED CIT / 5. DR A BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI.