ASST CIT CIR 19(2), MUMBAI V. VINAYA SHENOI, L.H OF LATE SHRI A.R. SHENOI, MUMBAI

ITA 6434/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83618 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 16-06-2014
• Assessment Year: 2006-2007
• Appeal Filed On: 21-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: BHAVIK SHAH

Judgement Text

F IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE S/SHRI H.L. KARWA, HONBLE PRESIDENT AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ./ I.T.A. NO.6434 /MUM/2011 ( / ASSESSMENT YEAR : 2006-2007 ASSTT. COMMISSIONER OF INCOME TAX 19(2), ROOM NO. 315, 3 RD FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL MUMBAI 400 012. / VS. SMT. VINAYA SHENOI, L/H OF LATE SHRI A.R. SHENOI, PLOT NO. 74/75, SEA BREEZE, 5 TH FLOOR, RAMKRISHNA MISSION ROAD, SANTACRUZ (W), MUMBAI 400 054. ./ PAN : AAEPG0951C ( / APPELLANT ) .. ( / RESPONDENT ) A PPELLANT BY SHRI P.K. SINGH R E SPONDENT BY : SHRI BHAVIK SHAH / DATE OF HEARING : 26-8-2014 / DATE OF PRONOUNCEMENT : 27-8-2014 [ !' / O R D E R PER B.R. BASKARAN, A.M. THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 20- 7-2011 PASSED BY THE LD. CIT(A) 35, MUMBAI AND IT RELATES TO A.Y 2006-07. 2. THE REVENUE HAS CHALLENGED THE DECISION OF LD. C IT(A) IN QUASHING THE ASSESSMENT ORDER BY HOLDING THAT THE ASSESSMENT ORD ER AND DEMAND NOTICE ARE INVALID AS THEY STAND IN THE NAME OF DECEASED P ERSON. ITA 6434/M/11 2 3. THE FACTS RELATING TO THE ABOVE ISSUE ARE THAT T HE ASSESSEE FILED THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION D ECLARING TOTAL INCOME OF RS.13,93,375/- ON 21-7-2006. THE A.O. COMPLETED THE ASSESSMENT BY MAKING VARIOUS ADDITIONS AND DETERMINED THE TOTAL INCOME O F RS.27,69,220/-. IT APPEARS THAT THE A.O. HAS NOTICED THE DEMISE OF THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND HENCE PASSED T HE ASSESSMENT ORDER IN THE FOLLOWING NAME:- SHRI A.R.S. SHENOI (NOW DECEASED) THROUGH L/H HOWEVER, THE DEMAND NOTICE WAS ISSUED IN THE NAME O F SHRI A.R.S. SHENOI. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) NOTICED T HAT THE ASSESSEE HAD EXPIRED IN THE MONTH OF DECEMBER, 2005 AND THE RETURN OF IN COME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY THE LEGAL REPRESENTATIVE ON 27-7-2006. ACCORDINGLY, THE LD. CIT(A) HELD THAT THE A.O. WAS NOT CORRECT IN PASSING THE ORDER IN THE NAME OF THE DECEASED ASSESSEE. ACCORD INGLY, HE HELD THAT THE ASSESSMENT ORDER AS WELL AS THE DEMAND NOTICE IS IN VALID, AS THEY STAND IN THE DECEASED PERSON. AGGRIEVED BY THE ORDER OF LD CIT( A), THE REVENUE HAS FILED THIS APPEAL BEFORE US. 4. AT THE TIME OF HEARING BEFORE US, THE LD. COUNSE L FOR THE ASSESSEE SUBMITTED THE COPIES OF RETURNS FILED BY THE ASSESS EE. WE NOTICED THAT THE RETURN OF INCOME WAS FILED ON 27-7-2006 BY THE ASSE SSEE HIMSELF. ON THE CONTRARY, THE LD. CIT(A) HAS OBSERVED THAT THE RETU RN OF INCOME WAS FILED BY THE LEGAL REPRESENTATIVE ON 21-7-2006. THE LD. A.R . ALSO FURNISHED A COPY OF DEATH CERTIFICATE OF THE ASSESSEE. FROM THE ABOVE SAID CERTIFICATE, IT IS NOTICED THAT THE ASSESSEE HAS DIED ON 14-3-2007. WE HAVE A LREADY NOTICED THAT THE LD. CIT(A) HAS OBSERVED THAT THE ASSESSEE HAS EXPIR ED IN THE MONTH OF DECEMBER, 2005. THUS, IT IS NOTICED THAT THE ORDER PASSED BY THE LD. CIT(A) IS FULL OF INFIRMITIES WITH REGARD TO THE FACTUAL ASPE CTS. IN THE ABSENCE OF CLARITY ON FACTS AND FURTHER IN VIEW OF THE MISTAKES COMMIT TED BY THE LD. CIT(A) IN ITA 6434/M/11 3 UNDERSTANDING THE FACTS, WE ARE OF THE VIEW THAT TH E ORDER PASSED BY THE LD. CIT(A) WOULD GET VITIATED AND HENCE IT COULD NOT BE SUSTAINED. DURING THE COURSE OF HEARING, THE LD D.R CONTENDED THAT THE AS SESSING OFFICER HAS PASSED THE ORDER IN THE NAME OF L/R ONLY BY DULY RECORDING THAT THE ASSESSEE HAS EXPIRED. WE NOTICE THAT THE LD CIT(A) DID NOT CONS IDER THIS FACTUAL ASPECT IN HIS ORDER. ACCORDINGLY, WE ARE OF THE VIEW THAT TH IS ISSUE NEEDS TO BE CONSIDERED AFRESH BY THE LD. CIT(A). ACCORDINGLY, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND RESTORE THIS MATTER TO HIS FILE FOR FRESH CONSIDERATION, AFTER AFFORDING NECESSARY OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S TREATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH AUGUST, 2014. !' # $% &! ' 27-08-2014 ( ) SD/-- SD/- (H.L. KARWA) (B.R. BASKARAN) PRESIDENT ACCOUNTANT MEMBER $ 2 MUMBAI ; &! DATED 27-8-2014. [ .:../ RK , SR. PS ITA 6434/M/11 4 ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ; () / THE CIT (A)-35, MUMBAI 4. ; / CIT -19,MUMBAI 5. >?( ::@A , @A , $ 2 / DR, ITAT, MUMBAI F BENCH 6. (CD E / GUARD FILE. ' / BY ORDER, > : //TRUE COPY// (/') * ( DY./ASSTT. REGISTRAR) , $ 2 / ITAT, MUMBAI