Shri Rajesh Dutt Singh, Faizabad V. The Income Tax Office -II, Faizabad

ITA 546/LKW/2014

• Counselvise Citation: 54623714 RSA 2014
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 24-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Reasonable cause
• Section: 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI, A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO.546/LKW/2014 ASSESSMENT YEAR 2009-10 THE INCOME TAX OFFICER - II, FAIZABAD 224001 VS SHRI RAJESH DUTT SINGH 1/13/19/18B, NAYYER COLONY, CIVIL LINES, FAIZABAD-224001 PAN AWOPS 7110 B (RESPONDENT) (APPELLANT) SHRI K.R. RASTOGI AND SHRI SUBHAM RASTOGI, CAS. APPELLANT BY SMT. ALKA SINGH, DR RESPONDENT BY 11 /0 8 /2015 DATE OF HEARING 30 /0 9 /2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS AN ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LD. CIT (A)-I, LUCKNOW DATED 28.02.2014 FOR THE AY 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER: 1 THE LD, C, I. T. (APPEALS)-I, LUCKNOW DID N OT APPRECIATED THAT THE APPELLANT WAS PREVENTED BY A REASONABLE CAUSE H ENCE COMPLIANCE OF NOTICE COULD NOT BE DONE BEFORE LD. C .L.T. (APPEAL). 2- THE APPELLANT IS DOING THE BUSINESS OF SALE AND PURCHASE OF COAL, MAURANG AND GITTI. THE FUNDS WERE DEPOSITED OUT OF THE CASH COLLECTED THROUGH SALES AND PAYMENTS WERE MADE TOWA RDS 2 PURCHASE OF COAL THROUGH DRAFT AND FOR PURCHASE OF MAURANG AND BALU IN CASH OUT OF THE WITHDRAWAL FROM BANK ON DIF FERENT DATES. 3- THAT RETURN SHOWING INCOME OF RS.93540/- HAS BEEN FILED ON ESTIMATE BASIS AS THE APPELLANT IS NOT MAINTAINING ANY BOOKS OF ACCOUNTS IN THIS REGARD. 4- THAT WITHOUT APPRECIATING THAT APPELLANT IS DOING RETAIL TRADING OF COAL, MAURANG AND BALU FOR WHICH INCOME HAS BEEN SH OWN, THE ADDITION HAS BEEN MADE FOR RS. 16,43,219/- BEING TO TAL CASH DEPOSITS OUT OF SALE ON DIFFERENT DATES IN THE BANK ACCOUNT AGAINST WHICH WITHDRAWALS HAS ALREADY MADE FOR PURC HASES. 5- THAT FOR RETAIL TRADING BUSINESS AS PER PRO VISIONS OF SECTION 44 AF OF I. T. ACT, THE NET PROFIT HAS TO BE TAXED AND NO BOOKS OF ACCOUNTS REQUIRED TO MAINTAIN FOR PURCHASE, SALES A ND DEPOSITS IN BANK WITH RESPECT TO PURCHASE AND SALE AND FOR EXPE NSES. 6- THE ADDITION MADE ARE HIGHLY EXCESSIVE, CONT RARY TO THE FACTS, LAW AND PRINCIPLE OF NATURAL JUSTICE AND WITHOUT PR OVIDING SUFFICIENT TIME AND OPPORTUNITY TO HAVE ITS SAY ON THE REASONS RELIED UPON BY HIM. 3. IT WAS SUBMITTED BY THE LD. AR OF THE ASSESSEE THAT IT IS NOTED BY THE LD. CIT(A) IN PARA NO.2 OF HIS ORDER THAT SHRI SHAILEND RA MISHRA, ADVOCATE ATTENDED THE HEARING ON 10.02.2014 AND INTIMATED THAT THE ASSESS EE HAS EXPIRED. LD. AR OF THE ASSESSEE WAS ASKED TO BRING THE RELEVANT EVIDENCE A ND THE LEGAL HEIR ON RECORD AND THE HEARING WAS ADJOURNED FOR 21.02.2014. ON THIS D ATE, LD. AR OF THE ASSESSEE REQUESTED FOR ADJOURNMENT AND THE HEARING WAS ADJOU RNED TO 28.02.2014. ON THIS DATE, I.E. 28.02.2014, LD. AR OF THE ASSESSEE AGAIN ATTENDED BUT NO DETAILS WAS FILED. IT IS SUBMITTED BY THE LD. AR THAT FROM THES E OBSERVATIONS OF THE LD. CIT(A) IN PARA 2 OF HIS ORDER, IT IS ESTABLISHED THAT THIS FA CT WAS BROUGHT TO THE NOTICE OF LD. CIT(A) THAT THE ASSESSEE HAS ALREADY EXPIRED BUT IN SPITE OF THIS, LD. CIT(A) HAS PASSED THE IMPUGNED ORDER IN THE NAME OF THE DEAD A SSESSEE AND THEREFORE, THE IMPUGNED ORDER IS NOT VALID. HE ALSO SUBMITTED THAT SINCE THE ASSESSMENT ORDER IS PASSED IN 2011 AND ASSESSEE HAS EXPIRED IN 2014, TH E ASSESSMENT ORDER IS LEGALLY VALID AND THEREFORE, ENTIRE MATTER MAY BE RESTORED BACK TO THE FILE OF CIT (A)FOR FRESH DECISION AFTER BRINGING LEGAL HEIR ON RECORD. LD. DR OF THE REVENUE SUBMITTED THAT IN SPITE OF VARIOUS OPPORTUNITIES PROVIDED BY THE LD. CIT(A), LD. AR OF THE 3 ASSESSEE DID NOT BRING LEGAL HEIR ON RECORD AND THE REFORE, THE ASSESSEE DOES NOT DESERVE ANY FURTHER OPPORTUNITY. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIN D THAT AS PER THE APPEAL MEMO IN FORM NO. 36 FILED BEFORE US, THE APPEAL IS FILED IN THE NAME OF SHRI RAJESH DUTT SINGH BUT BEFORE THE LD. CIT(A), IT WAS STATED BY SHRI SHAILENDRA MISHRA ADVOCATE AND LD. AR OF THE ASSESSEE THAT THE ASSESS EE HAS EXPIRED. IF THIS SUBMISSION OF LD. AR OF THE ASSESSEE BEFORE LD. CIT (A) WAS INCORRECT AND THE ASSESSEE IS STILL ALIVE, THE ASSESSEE SHOULD HAVE F ILED PETITION U/S 154 BEFORE CIT (A) FOR RECTIFICATION OF THIS MISTAKE BUT NOTHING IS SH OWN TO US ABOUT THE SAME. HENCE, WE PROCEED ON THIS BASIS THAT THE ASSESSEE IS DEAD BEFORE THE ORDER OF CIT (A). IN THAT SITUATION, THE ORDER OF CIT (A) IN THE NAME OF A DEAD PERSON IS NOT LEGALLY VALID BUT TO DECIDE ON THAT LINE, A VALID APPEAL SHOULD H AVE BEEN FILED BEFORE US. THE PRESENT APPEAL IN THE NAME OF A DEAD PERSON IS NOT VALID EVEN IF FILED BY LEGAL HEIR. HENCE, WE HOLD THAT THE APPEAL FILED BEFORE US IN T HE NAME OF A DEAD ASSESSEE IS NOT MAINTAINABLE. WE, THEREFORE, DISMISS THE SAME AS NO T MAINTAINABLE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/- SD/- (SUDHANSHU SRIVASTAVA) (A.K. G ARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBE R DATED: 30/09/2015 AKS COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGI STRAR