ITO, New Delhi V. Late Sh. Ram Kumar, Legal Heirs Sh. Amit Kumar & Smt. RajKumari, New Delhi

ITA 6495/DEL/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 2899 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-12-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 20-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 142(1); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: F , NEW DELHI BEFORE SHRI G.D.AGRAWAL , PRESIDENT AND SMT. BEENA A PILLAI, JUDICIAL MEMBER ITA NO. 6 495 /DEL/201 6 A.Y. 20 12 - 13 ITO, WARD 41(3) ROOM NO.1709 E 2 BLOCK, CIVIC CENTRE NEW DELHI VS . LATE SH. RAM KUMAR L/H : SH. AMIT KUMAR & SMT.RAJKUMARI 39 A, JWALAHERI MARKET PASCHIM VIHAR NEW DELHI 110 063 PAN: AABPY6772G (APPELLANT) (RESPONDENT) APPELLANT BY SHRI ATIQ AHMAD, SR.D.R. RESPONDENT BY NONE DATE OF HEARING 21 /12/2017 DATE OF PRONOUNCEMENT 27 /12/2017 ORDER PER BEENA A PILLAI, JUDICIAL MEMBER T HE PRESENT APPEAL HAS BEEN PREFERRED BY THE REVENUE AGAINST ORDER DATED 20/10/16 PASSED BY LD.CIT(A) - 14, NEW DELHI FOR ASSESSMENT YEAR 2012 - 13 ON THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS NOT JUSTIFIED IN NOT APPRECIATING THE MERITS OF THE CASE AND TREATING THE ORDER OF THE AO TO BE AB INTIO NULL AND VOID. ITA NO. 6495/DEL/2016 A.Y.:2012 - 13 ITO VS. LATE SH. RAM KUMAR, L/H:SH. AMIT KUMAR & SMT.RAJ KUMARI PAGE 2 OF 6 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS NOT JUSTIFIED IN NOT CONSIDERING THE PROVISIONS OF SECTION 2928 OF THE INCOME TAX ACT. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERR ED IN NOT CONSIDERING THE HON'BLE HARYANA & PUNJAB HIGH COURT IN THE CASE OF SWARAN KANTA VS COMMISSIONER OF INCOME TAX (176 ITR 291) HELD THAT' TITLE OF ORDER, WHICH WAS NOT HAPPILY WORDED WOULD NOT MAKE THE ORDER INVALID'. 4. THE APPELLANT CRAVES THE RI GHT TO ADD, ALTER OR AMEND ANY GROUND OF APPEAL. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: D URING THE ASSESSMENT PROCEEDINGS LD.AO OBSERVED THAT ASSESSEE HAD SOLD IMMOVABLE PROPERTY DURING THE FINANCIAL YEAR RELEVANT TO ASSESSMENT YEAR UNDER CONSIDERATION FOR WHICH NON STATUTORY NOTICE DATED 08/10/13 WAS ISSUED . AS THE ASSESSEE DID NOT COMPLY WITH THE LETTER THE CASE WAS REOPENED UNDER SECTION 147 OF THE INCOME TAX ACT, 1961 (THE ACT) AND NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED AFTER RECORDING REASONS. SUBSEQUENTLY NOTICE UNDER SECTION 142(1) AND 143(2) OF THE ACT WERE ISSUED TO THE ASSESSEE. IN RESPONSE TO THESE NOTICES, REPRESENTATIVES OF ASSESSEE ATTENDED BEFORE THE LD. AO AND SUBMITTED THAT ASSESSEE SHRI.RAM KUMAR DEMISED ON 12/12/13. 2.1. L D. AO PASSED THE ASSESSMENT ORDER UNDER SECTION 143 (3) READ WITH 147 OF THE ACT ON 27/03/15 IN THE NAME OF DECEASED ASSESSEE MAKING AN ADDITION OF RS. 62,11,917/ - ON ACCOUNT OF LONG TERM CAPITAL GAIN. 2.2. AGGRIEVED BY THE ASSESSMENT ORDER PASSED THE LEGA L HEIRS OF THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT (A) WHEREIN THE ITA NO. 6495/DEL/2016 A.Y.:2012 - 13 ITO VS. LATE SH. RAM KUMAR, L/H:SH. AMIT KUMAR & SMT.RAJ KUMARI PAGE 3 OF 6 VALIDITY OF THE ASSESSMENT ORDER PASSED BY LD. AO ON THE DECEASED ASSESSEE WAS CHALLENGED. 2.3. LD. CIT (A) AFTER GOING THROUGH THE ENTIRE RECORDS ALLOWED THE LEGAL PLEA RAISED B EFORE HIM BY OBSERVING AS UNDER: I HAVE CONSIDERED THE SUBMISSIONS OF THE APPELLANT AS WELL AS THE FINDINGS OF THE LD.AO AND JUDICIAL PRONOUNCEMENTS OF HIGHER APPELLATE AUTHORITIES AND THE HON BLE COURTS RELIED UPON BY THE LD.AR AND FOUND THAT THE CONTENT ION OF THE LD.AR THAT THE ORDER PASSED U/S 143(3)/147 OF THE ACT ON 27.3.2015 AFTER THE DEATH OF THE ASSESSEE BY THE LD.AO IS INVALID IS CORRECT. HENCE, THE ORDER DT. 27.3.2015 PASSED U/S 143(3)/147 OF THE ACT IS CORRECT. HENCE GROUND NOS. 1 AND 2 ARE AL LOWED. THE OTHER GROUNDS OF APPEAL ARE CONSEQUENTIAL TO GROUND NOS. 1 AND 2 AND SINCE THE VERY ASSESSMENT HAS BEEN HELD NULL AND VOID, THESE BECOME INFRUCTUOUS AND THUS DO NOT NEED ADJUDICATION SEPARATELY. 2.4. AGGRIEVED BY THE ORDER OF LD.CIT(A) REVENUE IS IN APPEAL BEFORE US NOW. 2.5. LD. DR SUPPORTED THE ORDER OF LD. AO BY TRYING TO TAKE SHELTER UNDER THE PROVISIONS OF SECTION 290 2B OF THE ACT. 2.6. ON THE CONTRARY LD. AR SUPPORTED THE ORDER PASSED BY LD. CIT (A). 3. WE HAVE PERUSED THE SUBMISSIONS ADVA NCED BY BOTH THE SIDES IN THE LIGHT OF THE RECORDS PLACED BEFORE US. IT IS OBSERVED FROM THE ASSESSMENT ORDER PASSED BY LD. AO THAT LD. AO WAS WELL INFORMED REGARDING THE DEMISE OF ASSESSEE. HE WAS SUPPOSED TO BRING THE LEGAL HEIRS ON RECORD AS PER THE DET AILS SUBMITTED BEFORE HIM DURING ITA NO. 6495/DEL/2016 A.Y.:2012 - 13 ITO VS. LATE SH. RAM KUMAR, L/H:SH. AMIT KUMAR & SMT.RAJ KUMARI PAGE 4 OF 6 ASSESSMENT PROCEEDINGS ITSELF. ONCE THE NON - EXISTENCE OF AN ASSESSEE IS BROUGHT TO THE NOTICE OF ASSESSING OFFICER , ASSESSING OFFICER OUGHT TO HAVE ISSUED THE NOTICE UNDER THE NAME OF LEGAL HE IRS AND SHOULD HAVE PASSED THE ASSESSMENT ORDER IN THE NAME OF SUCH LEGAL HAIRS. SUCH MISTAKES CANNOT BE CURED BY SECTION 29 2 B OF THE ACT . WE THEREFORE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY LD. CIT (A) AND THE SAME STANDS UPHELD. 3.1. ACCORDINGLY THE GROUNDS RAISED BY REVENU E STAND DISMISSED 3.2. I N THE RESULT APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 7 T H DECEMBER, 2017. S D / - S D / - ( G.D.AGRAWAL ) (BEENA A PILLAI) PRESIDENT JUDICIAL MEMBER DATED : 2 7 T H DECEMBER , 2017. *MV ITA NO. 6495/DEL/2016 A.Y.:2012 - 13 ITO VS. LATE SH. RAM KUMAR, L/H:SH. AMIT KUMAR & SMT.RAJ KUMARI PAGE 5 OF 6 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASST. REGISTRAR ITAT, DELHI BENCHES, NEW DELHI ITA NO. 6495/DEL/2016 A.Y.:2012 - 13 ITO VS. LATE SH. RAM KUMAR, L/H:SH. AMIT KUMAR & SMT.RAJ KUMARI PAGE 6 OF 6 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON DRAGON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR. PS/PS 6 KEPT FOR PRONOUNCEMENT SR. PS/PS 7 FILE SENT TO BENCH CLERK SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER