Laxmi Bai Mandala , Hyderabad V. Income Tax Officer, Ward-10(3) , Hyderabad

ITA 583/Hyd/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7038 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2011-2012
• Appeal Filed On: 23-10-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T CHAITANYA KUMAR
• Section: 292BB; 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES B : HYDERABAD (THROUGH VIDEO CONFERENCE) BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND SHRI LAXMI PRASAD SAHU, ACCOUNTANT MEMBER I.T.A. NO. 583/HYD/2020 ASSESSMENT YEAR: 2011-12 LAXMI BAI MANDALA, HYDERABAD [PAN: ADYPM2208D] VS INCOME TAX OFFICER, WARD-10(3), HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI T.CHAITANYA KUMAR, AR FOR REVENUE : SHRI ROHIT MUJUMDAR, DR DATE OF HEARING : 15-07-2021 DATE OF PRONOUNCEMENT : 30-08-2021 O R D E R PER S.S.GODARA, J.M. : THIS ASSESSEES APPEAL FOR AY.2011-12 ARISES FROM TH E CIT(A)-6, HYDERABADS ORDER DATED 31-08-2020 PASSED IN CASE NO.10426/2018-19/A3/CIT(A)-6, IN PROCEEDINGS U/S.14 4 R.W.S.147 OF THE INCOME TAX ACT, 1961 [IN SHORT, THE A CT]. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THE ASSESSEE APPEARS TO HAVE FILED A PETITION DT.13- 07- 2021 SEEKING TO RAISE THE FOLLOWING SUBSTANTIVE GROUND S: PETITION FILED UNDER RULE 11 OF INCOME TAX APPELALTE TRIBUNAL RULES 1963 1. THE APPELLANT FILED APPEAL AGAINST THE ORDER DAT ED 31-08-2020 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 6 HYDERABAD. IN THE APPEAL MEMORANDUM, THE APPELLANT HAS RAISED GROUNDS WITH ITA NO. 583/HYD/2020 :- 2 -: RESPECT TO ADDITIONS MADE BY THE ASSESSING OFFICER. HOWEVER, LEGAL GROUNDS WITH RESPECT TO NOTICE ISSUED UNDER SECTION 147 R.W.S 148 TO A DEAD PERSON COULD NOT BE CONTINUED AGAINST THE LE GAL REPRESENTATIVE AND MOREOVER, SECTION 292B ALSO COULD NOT RESORTED. ADDITIONAL GROUND / GROUNDS 12. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)ASSESSING OFFIC ER GROSSLY ERRED IN ISSUING NOTICE U/S 147 R.W.S 148 LEGAL REPRESENT ATIVE. 13. 'WHETHER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN DECLARING THE ASSESSMENT ORDER AS VOID AND A NULLITY OR NOT? 16. WHETHER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS AND THE CIRCUMSTANCES OF THE CASE IN CONCLUDING THAT THE NO TICE U/S.148 HAS NOT BEEN SERVED ON PROPER PERSON?' 17. WHETHER THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS AND THE CIRCUMSTANCES OF THE CASE IN CONCLUDING THAT THE NO TICE ISSUED IN THE NAME OF THE DECEASED PERSON RENDERS THE ASSESSMENT ORDER NULL AND VOID EVEN IF THE ORDER IS PASSED IN THE NAME OF THE LEGAL HEIR. THE FACT THAT THE LEGAL HEIR ATTENDED THE PROCEEDINGS DOES N OT MAKE IT A CURABLE DEFECT U/S 292BB IT IS SUBMITTED THAT THE FACTS RELATING TO THE ABOV E LEGAL GROUNDS ARE ALREADY ON RECORD BEFORE THE AUTHORITIES BELOW. THEREFORE, THERE IS NO NECESSITY OF FRESH INVESTIGATING INTO FACTS FOR ADJUDICATING THE ADDITIONAL GROUNDS. IN VIEW OF THE LAID OUT IN THE JUDGEMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. N.T.P.C. (229 ITR 383 SC), THE ADDITIONAL GROUND RAISED ABOVE DESERVES ADMISSION A ND ADJUDICATION ON MERITS. IT IS FURTHER SUBMITTED THAT THE NON-FIL ING OF THE ABOVE GROUND BEFORE AUTHORITIES BELOW IS ON ACCOUNT OF TH E FACT THAT THE APPELLANT WAS CONFIDENT ON ITS MAIN STAND. THE APPE LLANT IS NOW BEEN ADVISED TO RAISE THE ABOVE ADDITIONAL GROUND A S ABUNDANT CAUTION. IN THE AFORESAID CIRCUMSTANCES, IT IS PRAYED THAT T HE HON'BLE TRIBUNAL MAY BE PLEASED TO ADMIT THE ADDITIONAL GROUND/GROUN DS RAISED ABOVE, AND ADJUDICATE THE SAME ON MERITS. ITA NO. 583/HYD/2020 :- 3 -: 3. THE REVENUE HAS STRONGLY CONTESTED ADMISSION OF TH E ASSESSEES FOREGOING PETITION ON THE GROUND THAT THE SA ME TENDS TO GIVE ALTOGETHER A NEW COLOUR TO THE PLEADINGS AL READY MADE IN THE MAIN APPEAL. SUFFICE TO SAY, HON'BLE APEX COURTS LANDMARK DECISION IN NATIONAL THERMAL POWER CO. LTD. , VS., CIT [229 ITR 383] (SC); AS CONSIDERED IN TRIBUNALS SPECIAL BENCHS DECISION ALL CARGO GLOBAL LOGISTICS LTD., VS . DCIT (2012) [137 ITD 217](SB) (MUMBAI), HOLDS THAT WE CAN VERY WELL ENTERTAIN A NEW GROUND GOING TO ROOT OF THE MA TTER SO AS TO DETERMINE CORRECT TAX LIABILITY OF A TAXPAYER PROVI DED ALL THE RELEVANT FACTS ARE ON RECORD . WE GO BY THE VERY ANALOGY AND FIND THAT THE ASSESSEES FOREGOING PETITION SEEKING TO RAISE I TS ADDITIONAL SUBSTANTIVE GROUND DESERVES TO BE ACCEPTED. ORDERED ACCORDINGLY. 4. WE NOW COME TO THE BASIC FACTS PERTAINING TO THE INS TANT LEGAL ISSUE. THERE IS NO DISPUTE QUA THE TWIN BASIC FACTS THAT THIS ASSESSEE HEREIN LATE LAXMI BAI HAD EXPIRED ON 26 -07-2013 (DEATH CERTIFICATE PG.3), WHERE AS THE ASSESSING OFFI CER ISSUED HIS RE-OPENING NOTICE ON 12-04-2017 (PG.74 OF THE PA PER BOOK). THAT BEING THE CASE, WE QUOTE HON'BLE BOMBAY HIGH COU RTS DECISION IN W.P.NO.404 OF 2019 RUPA SHYAMSUNDAR DHUMATKAR VS. ACIT, 05-04-2019 AND HON'BLE GUJARAT HI GH COURTS DECISION IN SPECIAL CIVIL APPLICATION NO.1517 2 OF 2018, DT.10-12-2018 CHANDRESHBHAI JAYANTIBHAI PATEL VS. ITO TO HOLD THAT SUCH A RE-OPENING INITIATED AGAINST A DEAD PE RSON IS A NULLITY. WE ADOPT THE VERY REASONING MUTATIS MUTANDIS HEREIN AS WELL AND QUASH THE IMPUGNED RE-OPENING/RE-ASSESSM ENT TAKEN RECOURSE TO BY THE LEARNED LOWER AUTHORITIES. ORD ERED ITA NO. 583/HYD/2020 :- 4 -: ACCORDINGLY. ALL OTHER PLEADINGS ON MERITS ARE RENDER ED INFRUCTUOUS. 5. THIS ASSESSEES APPEAL IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH AUGUST, 2021 SD/- SD/- (LAXMI PRASAD SAHU) (S.S.G ODARA) ACCOUNTANT MEMBER JUDICIAL MEM BER HYDERABAD, DATED: 30-08-2021 TNMM ITA NO. 583/HYD/2020 :- 5 -: COPY TO : 1.LAXMI BAI MANDALA, FLAT NO.409, 4 TH FLOOR, METRO RESIDENCY, RAJ BHAVAN ROAD, SOMAJIGUDA, HYDERABAD. 2.INCOME TAX OFFICER, WARD-10(3), HYDERABAD. 3.CIT(APPEALS)-6, HYDERABAD. 4.PR.CIT-1, HYDERABAD. 5.D.R. ITAT, HYDERABAD. 6.GUARD FILE.