Smt. Varshaben Paras Jani(L.h. of Shri Paras Chunilal Jani), Ahmedabad V. ACIT, Circle-5(1), Ahmedabad

ITA 536/AHD/2019

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3705 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 20-02-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 28-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148; 263; 143(3); 201; 264; 48; 153

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & Ms. MADHUMITA ROY, JUDICIAL MEMBER आयकर अपील सं./I. T. A. No . 536/Ahd/20 19 ( नधा रण वष / As sess ment Year : 2012 -1 3) Sm t . V a r s h ab e n P ar a s Ja ni L / h of S hr i P ar a s C. Ja ni 22 , P ar ik h C o lo n y So cie t y, B / h. N a v n ir ma n H i gh Sc ho o l, R an ip , Ah me da b ad - 3 82 48 0 बनाम/ Vs . As s is s t a nt C om m iss io n e r o f In co m e T ax C ir c l e - 5 ( 1 ) , A h m e d ab ad थायी लेखा सं./जीआइआर सं./P A N/ G I R N o . : A P J PJ 2 0 4 7 N (Appellant) . . (Respondent) अपीलाथ ओर से /Appellant by : Shri Hardik Vora, AR यथ क ओर से/Respondent by : Shri Sudhendu Das, CIT. DR D a t e o f H e a ri ng 21/02/2024 D a t e o f P r o n o u nc e me n t 23/02/2024 O R D E R PER Ms. MADHUMITA ROY - JM: Th e instant appeal filed at th e instance o f the assessee is directed ag ainst the o rd er dated 30. 01. 20 19 pass ed by the Co mmis sion er o f Inco me Tax (Appeals)-5, Ah medabad [‘th e CIT(A)], arising out of the o rd er dated 20. 0 2. 201 5 pas sed b y the ACIT, Circle - 5(1), Ah med abad, under Section 143(3) r. w. s. 263 ITA No. 536/Ahd/2019 (Smt. Varshaben Paras Jani vs. ACIT) A.Y.– 2012-13 - 2 – of the In co me Tax Act, 1961 (hereinafter referred as to ‘the Act’) fo r A sses sment Year 2 012-13. 2. We have heard the rival submi ssions mad e by the respective parties and we h ave also peru sed t he relevant materi als available on reco rd. 3. Th e brief facts lea ding to this case is this th at the a ssess ment ord er under Section 143(3) r. w. s. 263 o f the Act was p assed b y the ACIT, Circle -5(1), Ah medab ad on 02 . 11.20 17 in the name o f the deceased person , na mely , Late Paras Chinu bhai Jani wh o d ied on 07. 06.2 017 as is evident fro m the Death Certificate sub mitted by th e Ld. AR b efore us, which was already made kn own to the Ld. AO by and under the letter dated 29. 09 .2017 by the Ld. Counsel while ask ing for a djournment in order to enable him to receive the authority letter fro m th e wi fe and leg al heir of the asses see, namely, Varshaben P. Jan i was not in town at that particular point of ti me. In that view of the mat ter, the case mad e o ut by the asses see i s th is that as the order p assed by the Ld. AO ad mittedly in th e na me o f a d eceased per son , the entire proceeding is v itiated and, thus, liable to be qu ash ed. It wa s further bro ugh t to ou r notice th at the Ld. CIT(A) while d ealing with this p articular gro und agitated before hi m obs erved that as the legal and ju risdiction notice was issued on alive person and during asses s men t p ro cee dings, since, the ass es see died, it see ms th at the asses s men t order mentioning the name of the d eceas ed instead o f legal h eir is a curable mistake u nder Section 29 2BB of the Act. In ITA No. 536/Ahd/2019 (Smt. Varshaben Paras Jani vs. ACIT) A.Y.– 2012-13 - 3 – rebuttal, it was s ubmitted by the Ld . AR th at the provision of Section 29 2BB of th e Act is n ot applicable to the instant case in hand , in v iew of this particular fact that Section 2 92BB speaks abou t the service of n otice and not fin alizatio n of the asses sment in the na me of a d eceased person. Once the o rd er dated 02. 11.2 017 issued un der Section 143(3 ) r. w. s. 263 of the Act in th e name o f th e deceased per son particularly, even after having the knowledge of the death o f the asses see, the order beco me non -est in th e eye of law an d thus liable to be q uashed . He further relied upon the judgmen t passed b y the Jurisdictio nal High Court in case of Krishn aawtar Kabra L/H of Jagan nath Ra mpal Kabr a v s. ITO in R/Special Civ il Ap plicatio n No. 1515 of 2022 , dated 29. 03.2 022, wherein it h as b een d ecided that issuing n otice u pon the d eceased asses see is as good as no valid notice in the eye of law resulting in irreg ularity, wh ich is not cu rable. Th e Ld. DR has failed to controvert such sub mis sio n mad e by th e Ld. AR. 4. On the b asis of the fact n arrated hereinab ove, we have fu rther considered the judg men t p as sed by the Krishnaawtar Kabra (supra). We fin d th at while d ealing with this particular aspect o f th e matter, Ho n’ble Court was p leased to observe as follows: “9. At the outset we may observe that as per scheme of the Act the AO gets jurisdiction under the Act for assessment upon suo moto filing of return by the assessee or by issue of notice requiring him to file the return. In the present case, there is no scope/occasion for filing a voluntary return for escapement of income and the only provision under which return can be filed is on issue of a notice under Section 148. Indisputably, the assessment proceedings for escaped income were initiated by issue of notice under Section 148 of the Act and therefore the AO was vested with jurisdiction over the case. However, issuing notice upon the deceased assessee is as good as no valid notice in eye of law resulting in irregularity, which is not curable. It would be a nullity, as it hits upon the inherent jurisdiction of AO. On a bare reading of the provision, it is evident that issuance of valid ITA No. 536/Ahd/2019 (Smt. Varshaben Paras Jani vs. ACIT) A.Y.– 2012-13 - 4 – notice confers power upon the AO to assume jurisdiction for initiation of proceedings for assessment of escapement of income. It is a cardinal proposition in law that not issuing notice at all or issuing that beyond statutory period or issue of an invalid notice under Section 148 does affect the jurisdiction of AO and would make the assessment/reassessment "null and void" because the notice under this section is not a mere procedural requirement but a condition precedent to assume jurisdiction and to make a valid assessment/reassessment. Absence of such a notice would make the assessment invalid and without jurisdiction in view of the decisions of Y Narayana Chetty v. ITO, 35 ITR 388 (SC); CIT v. Thayaballi Mulla Jeevaji Kapasi , 66 ITR 147 (SC); CIT v. Kurban Hussain Ibrahimji Mithiborwala, 82 ITR 821 (SC); Nayalchand Malukchand Dagli v. CIT, 62 ITR 102 (Guj); Madanlal Agarwal v. CIT, 144 ITR 745 (All); PN Sasikumar v. CIT, 170 ITR 80 (Ker); and Electro Steel Castings Ltd. 264 ITR 410 (Cal)-SLP Dismissed 266 ITR (St.) 104 (SC). The existence of a valid section 148 notice being a condition precedent for the exercise of the jurisdiction by the Assessing Officer to assess or reassess under Section 147, it does not confer any right to the assessee, which he could abandon. Want of a notice affects the jurisdiction of the Assessing Officer to proceed with the assessment and failure to give the requisite notice shall deprive the Assessing Officer of his jurisdiction as held in Ghansham Dass (1964) 51 ITR 557 (SC); Brij Bushan Lal v. CIT 81 ITR 497 (Punj); T.A. George v. Ag. ITO 153 ITR 721 (Ker); and CIT v. Hindusthan Steel Ltd , The Income Tax Officer and Ors. vs. Sukhini P. Modi and Ors. (19.01.2007 - ITAT Ahmedabad) : MANU/IB/5013/2007. 10. We have therefore, no hesitation in coming to the conclusion that the impugned notice dated 31.03.2021 admittedly, being issued upon deceased - assessee is void ab initio and the consequential proceedings and the orders passed thereon are any without jurisdiction and are therefore, hereby quashed and set aside. The writ application succeeds to the aforesaid extent.” 5. We find that the as sessee before u s is on a better footing. Th ough the no tice wa s served up on the as se ssee, since d eceased, th e order of as ses sment und er Section 143(3) r. w. s. 263 of the Act was issued in the name o f the d eceased, kno wing fully well that th e asse ssee already died on 07. 06.20 17 fact of which was made known to th e Ld. AO b y and un der letter dated 29.09.2 017 enclo sing d eath certificate o f the assesse e. The same i s al so annexed to the pap er book filed before us. Further that, when the asses see soug ht fo r adjournment on 29. 09. 2017 requesting fo r so me ti me to repr esen t the matter befo re th e Ld. AO, the Ld . AO sho uld hav e given fu rther o pportunity to bring o n record the legal heir of the as se ssee an d to proceed with the matt er strictly in ITA No. 536/Ahd/2019 (Smt. Varshaben Paras Jani vs. ACIT) A.Y.– 2012-13 - 5 – accordan ce with law. The duty incu mbent upo n the Ld. AO is evidently failed to have been perfor med in its proper perspective. Th us, tak in g into consideratio n th e entire aspect of the matter as th e assess ment order issued under Section 143(3) r.w.s. 2 63 of the Act is fou nd to have been issued in the name o f th e d eceased asses see, the sa me , in our con sidered opin ion, is non-est in the eye of la w and, thus, liable to be q uashed. Taking in spiration fro m the ratio laid down by th e Hon’ble Jurisdictio nal High Court in the case o f K rishn aawtar Kab ra ( supra), we do not hesitate to quash th e assess ment order passed u nder Section 143(3) r.w. s. 2 63 of the Act. 6. In th e result, the appeal preferred b y the assessee is allowed. This Order pronounced on 23/02/2024 Sd/- Sd/- (WASEEM AHMED) (MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 23/02/2024 S. K. SINHA True Copy आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. "वभागीय &त&न ध, आयकर अपील)य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड/ फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील$य अ%धकरण, अहमदाबाद / ITAT, Ahmedabad