Savitri Devi (L/H of Late Rajinder Singh), New Delhi V. ITO WARD - 42(2), New Delhi

ITA 6233/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6888 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 23-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 142(1); 143(2); 147; 69; 148; 144

Judgement Text

PAGE | 1 INCOME TAX APPELLATE TRIBUNAL [ DELHI BENCH SMC: NEW DELHI ] BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER (THROUGH VIDEO CONFERENCING) ITA. NO. 6233/DEL/2019 (ASSESSMENT YEAR: 2011-12) SMT. SAVITRI DEVI, LEGAL HEIR OF LATE RAJINDER SINGH, 126D, EXTN. I, BLOCKB, NANGLOI NEW DELHI 110 041. PAN: BJPPS7912C VS. INCOME TAX OFFICER, WARD : 42 (2) NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VARUN GUPTA, C. A.; REVENUE BY: SHRI R. K. GUPTA, SR. D. R.; DATE OF HEARING : 12/08/2021 DATE OF PRONOUNCEMENT : 12/08/2021 O R D E R PER PRASHANT MAHARISHI, A. M. 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER DATED 13.05.2019 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)14, NEW DELHI, FOR ASSESSMENT YEAR 2011-12 RAISING THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER (APPEALS) ERRED BY CONFIRMING THE ASSESSMENT ORDER WITHOUT APPRECIATING THE SUBSTANCE OF THE CASE AND THE GROUNDS OF APPEAL RAISED BEFORE THE APPELLATE AUTHORITY. 2. THE LEARNED CIT (APPEALS) ERRED IN NOT QUASHING THE ASSESSMENT ORDER MADE ON THE BASIS OF NOTICE ISSUED U/S 143(2) IN THE NAME OF DECEASED SH RAJINDER SINGH AS ANY NOTICE ISSUED IN THE NAME OF DEAD PERSON IS NOT VALID NOTICE. 3. WHETHER ON FACT AND CIRCUMSTANCE OF THE CASE LD CIT (A) HAD PAGE | 2 JUSTIFIED UPHOLDING THE FINDING OF THE ASSESSING OFFICER ASSESSING THE ADDITION OF RS. 11.98.000/- UNDER SECTION 69 OF THE ACT. 4. THAT THE ASSESSMENT ORDER PASSED BY THE LEARNED AO IS BAD IN LAW, INVALID AND NULLITY DUE TO WANT OF JURISDICTION. THE NOTICE U/S 148 IS ISSUED ON 28.03.2018, WHEREAS THE ASSESSEE, SH RAJINDER SINGH DIED ON 21.03.2014. FURTHER NOTICES U/S 142(1) WERE ALSO ISSUED IN THE NAME OF DECEASED ASSESSEE ON 04.10.2018 AND 12.10.2018. THE NOTICE ISSUED U/S 143(2) OR U/S 142 IS ADDRESSED TO AN ASSESSEE WHO WAS ALREADY DEAD ON THE DATE OF ISSUE OF NOTICES. 5. THAT THE PRESENT CASE THE NOTICE/ S WERE ADDRESSED TO SH RAJINDER SINGH, WHO ADMITTEDLY, WAS DEAD AT THAT TIME AND HAD BEEN SO DEAD FOR A LONG TIME. IN THESE CIRCUMSTANCES, IT WAS INCUMBENT ON THE ASSESSING OFFICER TO CAUSE THE NOTICE TO BE ISSUED TO THE LEGAL REPRESENTATIVES OF SH RAJINDER SINGH. 6. THAT IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE VARIOUS OBSERVATIONS MADE BY THE AO AND CIT(A) ARE FACTUALLY INCORRECT, ILLEGAL, BAD IN LAW AND CONTRARY TO FACTS ON RECORD AND BASED ON MERE GUESS WORK AND SURMISES AND CONJECTURES. THAT THE ASSESSEE RESERVES THE RIGHT TO ADD, AMEND, ALTER THE GROUNDS OF APPEAL. 2. BRIEF FACTS OF THE CASE SHOWS THAT ORDER UNDER CHALLENGED IS PASSED ON ONE MR RAJINDERSINGH U/S 14/147 OF THE INCOME TAX ACT 1961 ON 9 DECEMBER 2018. THE PROCEEDINGS WERE INITIATED ON THE ASSESSEE U/S 147 OF THE ACT ON THE BASIS OF THE INFORMATION THAT ASSESSEE HAS DEPOSITED CASH OF 1,198,000 IN HIS SAVING BANK ACCOUNT AND HAS NOT FILED HIS RETURN OF INCOME. THEREFORE NOTICE U/S 148 WAS ISSUED ON 28 TH OF MARCH 2018. THE LEARNED ASSESSING OFFICER SENT VARIOUS REMINDERS AND LETTERS TO FILE THE RETURN OF INCOME BUT NEITHER THE RETURN WAS FILED ON OR ANY REPLY WAS RECEIVED. THEREFORE THE ASSESSING OFFICER PASSED AN ORDER U/S 144 OF THE INCOME TAX ACT MAKING AN ADDITION OF 1,198,000 IN THE HENCE OF THE ASSESSEE ON 9 DECEMBER 2018. 3. THE APPEAL WAS FILED BY LEGAL HEIR OF THE ASSESSEE STATING THAT ASSESSEE HAS PASSED AWAY ON 21 ST OF MARCH 2014. IT WAS STATED THAT THE NOTICE U/S 148 WAS ISSUED ON 28 TH OF MARCH 2018 AND FURTHER NOTICES WERE ALSO ISSUED IN THE NAME OF THE DECEASED ASSESSEE. IT WAS ALSO STATED THAT ASSESSMENT ORDER PASSED BY THE LEARNED AO IS BAD IN LAW. ON THE MERITS PAGE | 3 OF THE ADDITION IT WAS STATED THAT THE ASSESSEE HAS SOLD HIS AGRICULTURAL LAND AND DEPOSITED 1,198,000 HIS BANK ACCOUNT. IT WAS STATED THAT NOTICE U/S 148 OF THE INCOME TAX ACT WAS SENT TO THE OLD ADDRESS OF THE ASSESSEE WHICH WAS LYING VACANT AND RESULTING IN THE ASSESSMENT PROCEEDINGS COULD NOT BE TAKEN CARE OF BY THE LEGAL HEIRS. BEFORE THE LEARNED CIT A ALSO NOTICE FOR HEARING OF THE APPEAL WAS ISSUED ON TWO OCCASIONS AND NONE APPEARED AND THEREFORE HE PROCEEDED TO DECIDE THE ISSUE ON THE MERITS OF THE CASE. HE HELD THAT AS THE ASSESSEE HAS FAILED TO PRODUCE ANY INFORMATION ABOUT THE SALE OF THE AGRICULTURAL LAND BY THE DECEASED ASSESSEE THE CONTENTION OF THE ASSESSEE WAS DISMISSED. CONSEQUENTLY THE APPEAL OF THE ASSESSEE WAS DISMISSED. THEREFORE THE LEGAL HEIRS OF THE ASSESSEE ARE AGGRIEVED AND APPEAL IS FILED. 4. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSESSMENT ORDER PASSED BY THE LEARNED ASSESSING OFFICER IS BAD IN LAW INVALID AND NULLITY BECAUSE OF THE REGION THAT NOTICE U/S 148 WAS ISSUED ON 28 TH OF MARCH 2018 WHEREAS THE ASSESSEE PASSED AWAY ON 21 ST OF PASSED 2014. HE FURTHER REFERRED TO THE ASSESSMENT ORDER STATING THAT IT WAS PASSED ON A DEAD PERSON. HE FURTHER REFERRED THAT IN FORM NUMBER 35 THE ASSESSEE HAS MENTIONED AT THE TIME OF FILING OF THE APPEAL THAT IT IS FILED BY THE LEGAL HEIR BY THE ASSESSEE AND STILL THE LEARNED CIT A PASSED THE APPELLATE ORDER IN THE NAME OF A DEAD PERSON. 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY OBJECTED TO THE CLAIM OF THE LEARNED AUTHORISED REPRESENTATIVE STATING THAT THE ASSESSEE HAS NEVER INFORMED TO THE ASSESSING OFFICER THAT THE ASSESSEE HAS PASSED AWAY AND THEREFORE NOW THE ASSESSEE CANNOT TAKE THIS PLEA. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTION AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. THE FACT SHOWS THAT ASSESSEE HAS PASSED AWAY ON 21 ST OF MARCH 2014. THE NOTICE U/S 148 WAS ISSUED ON 28 TH OF MARCH 2018. CONSEQUENT ASSESSMENT ORDER IS PASSED ON 9 DECEMBER 2018 IN THE NAME OF A DEAD PERSON I.E. DECEASED ASSESSEE. DESPITE THE ASSESSEE DRAWING ATTENTION TO THE LEARNED CIT A AND SPECIFICALLY MENTIONING IN THE STATEMENT OF FACTS THAT THE APPEAL BEFORE HIM IS FILED BY THE LEGAL HEIR OF THE DISEASE THE ASSESSEE, EVEN CIT APPEAL ALSO PASSED AN ORDER IN THE PAGE | 4 NAME OF A DEAD PERSON. WE FIND THAT THE ISSUE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE HONOURABLE DELHI HIGH COURT IN SAVITA KAPILA VS ACIT [2020] 118 TAXMANN.COM 46 (DELHI)/[2020] 273 TAXMAN 148 (DEL) WHEREIN IT HAS BEEN HELD THAT IN ABSENCE OF A STATUTORY PROVISION, A DUTY CANNOT BE CAST UPON LEGAL REPRESENTATIVES TO INTIMATE FACTUM OF DEATH OF ASSESSEE TO DEPARTMENT AND, THUS, WHERE ASSESSING OFFICER ISSUED A NOTICE TO ASSESSEE UNDER SECTION 148 AFTER HIS DEATH AND, IN SUCH A CASE, IT COULD NOT HAVE BEEN VALIDLY SERVED UPON ASSESSEE, SAID NOTICE BEING INVALID, WAS TO BE QUASHED. THE FACTS IN THE CASE OF THE ASSESSEE ARE IDENTICAL. IN VIEW OF THIS, WE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONOURABLE DELHI HIGH COURT QUASH THE ORDER PASSED BY THE LEARNED ASSESSING OFFICER AS IT HAS BEEN PASSED ON A DEAD PERSON I.E. DECEASED ASSESSEE. 7. ACCORDINGLY APPEAL FILED BY THE ASSESSEE IN THE CAPACITY OF LEGAL HEIR FOR ASSESSMENT YEAR 2011 12 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON : 12/08/2021. SD/- SD/- ( AMIT SHUKLA ) (PRASHANT MAHARISHI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 12/08/2021. *MEHTA* COPY FORWARDED TO 1. APPELLANT; 2. RESPONDENT 3. CIT 4. CIT (APPEALS) 5. DR:ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI. PAGE | 5 DATE OF DICTATION 12.08.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12.08.2021 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 12.08.2021 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/ PS 12.08.2021 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 12.08.2021 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 12.08.2021 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 12.08.2021 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 12.08.2021 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER