INCOME TAX OFFICER, WARD-1-1, Kota V. SHRI CHANDI RAM, Kota

ITA 662/JPR/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5584 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 14-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH
• Assessee Lawyers: SAURAV HARSH S LQUOK
• Keywords: Set aside
• Section: 205

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 662/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13. INCOME TAX OFFICER, WARD-1(1), KOTA. CUKE VS. LATE SHRI CHANDI RAM THROUGH L/H SMT. SARLA DEVI A-20, VALLABH NAGAR, KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABIPR 6234 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI JAI SINGH (JCIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SIDDHARTH RANKA & SHRI SAURAV HARSH (ADVOCATES) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 30.07.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 31/07/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 21 ST FEBRUARY, 2018 OF LD. CIT (A), KOTA FOR THE ASSESSMENT YEAR 2 012-13. THE ASSESSEE HAS RAISED A PRELIMINARY OBJECTION AGAINST THE MAINTAINABILITY OF THE APPEAL ON THE GROUND THAT THE DEPARTMENT HAS FILED THE PRESENT APPEAL AGAINST THE DECEASED PERSON DESPITE THE FACT THAT THE ASSESSEE HAD ALREADY EXPIRED ON 21 ST FEBRUARY, 2017. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT SINCE THE ASSES SEE HAS RAISED A LEGAL ISSUE REGARDING THE MAINTAINABILITY OF THE APPEAL, THEREF ORE, THE PRELIMINARY OBJECTION RAISED BY THE ASSESSEE BE TAKEN UP FIRST PRIOR TO T HE ADJUDICATION OF THE APPEAL OF THE REVENUE. SINCE THE PRELIMINARY OBJECTION RAISED BY THE ASSESSEE IS LEGAL IN NATURE 2 ITA NO. 662/JP/2018 LATE SHRI CHANDI RAM, THROUGH L/H SMT. SARLA DEVI, KOTA. AND GOES TO THE ROOT OF THE MATTER BEING THE MAINTA INABILITY OF THE APPEAL, THEREFORE, WE PROPOSE TO FIRST HEAR AND DISPOSE OFF THE PRELIM INARY OBJECTION. 2. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED T HAT DURING THE PENDENCY OF THE APPEAL BEFORE THE LD. CIT (A), THE ASSESSEE EXP IRED ON 21 ST FEBRUARY, 2017. HE HAS REFERRED TO THE DEATH CERTIFICATE OF THE DECEAS ED ASSESSEE. THE LD. COUNSEL FURTHER SUBMITTED THAT THE LEGAL HEIR OF THE ASSESS EE SUBMITTED A LETTER DATED 5 TH MARCH, 2017 TO THE AO INTIMATING ABOUT THE DEATH OF THE ASSESSEE. HE HAS ALSO REFERRED TO LETTER DATED 11 TH SEPTEMBER, 2017 AS WELL AS AMENDED CAUSE TITLE IN THE CASE PENDING BEFORE THE HONBLE JURISDICTIONAL HIGH COURT ON 30.08.2017 AND SUBMITTED THAT THIS FACT WAS VERY MUCH IN THE KNOWL EDGE OF THE AO THAT THE ASSESSEE HAD EXPIRED ON 21 ST FEBRUARY, 2017. THE LEGAL HEIR ALSO SUBMITTED THE APPLICATION TO THE LD. CIT (A) DATED 18 TH SEPTEMBER, 2017 FOR BRINGING THE LEGAL HEIR ON RECORD. THUS THE LD. COUNSEL FOR THE ASSESSEE H AS REFERRED A SERIES OF COMMUNICATIONS WHEREBY THE DEATH OF THE ASSESSEE WA S DULY INTIMATED TO THE AO AS WELL AS THE LD. CIT (A). EVEN THE A.O. HAS ISSUED NOTICE DATED 23 RD NOVEMBER, 2017 IN THE NAME OF LEGAL HEIR OF THE ASSESSEE AND ALSO PASSED A GIVING EFFECT ASSESSMENT ORDER DATED 21.12.2017 FOR THE ASSESSMENT YEAR 2004 -05 AS PER THE DECISION OF THIS TRIBUNAL WHEREBY THE MATTER WAS SET ASIDE TO THE RE CORD OF THE AO. HENCE THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT DESPITE ALL THESE EVIDENCES PROVING THAT THE AO WAS VERY WELL AWARE ABOUT THE DEATH OF THE A SSESSEE, THE PRESENT APPEAL WAS FILED IN THE NAME OF THE DECEASED ASSESSEE WHIC H IS NOT MAINTAINABLE AND LIABLE TO BE DISMISSED. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN CASE OF CIT VS . SANTOSH RANI, 219 ITR 301 (MP) AS WELL AS JUDGMENT OF HONBLE MADRAS HIGH COU RT IN CASE OF CWT VS. V.S. 3 ITA NO. 662/JP/2018 LATE SHRI CHANDI RAM, THROUGH L/H SMT. SARLA DEVI, KOTA. MEENAKSHI ACHI, 205 ITR 260 (MADRAS). THUS THE LD. COUNSEL HAS SUBMITTED THAT IN IDENTICAL FACTS THE HONBLE MADHYA PRADESH HIGH COU RT HAS UPHELD THE DECISION OF THE TRIBUNAL DISMISSING THE APPEAL FILED BY THE REV ENUE AGAINST THE DECEASED ASSESSEE. SIMILARLY, THE HONBLE MADRAS HIGH COU RT HAS ALSO HELD THAT THE APPEAL FILED BY THE REVENUE AGAINST THE DECEASED ASSESSEE IS NOT MAINTAINABLE AND, THEREFORE, THE PROVISIONS OF SECTION 292 OF THE IT ACT CANNOT BE PRESSED INTO SERVICE. HE HAS ALSO REFERRED TO RULE 9A, 12 AND 26 OF THE I TAT RULES, 1963 AND SUBMITTED THAT AS PER RULE 9A, REVISED FORM NO. 36 CAN BE FIL ED ONLY WHEN THERE IS A CHANGE OF ADDRESS OF THE PARTIES TO THE APPEAL WHEREAS AS PER RULE 12 OF THE ITAT RULES, THE TRIBUNAL MAY REJECT THE MEMORANDUM OF APPEAL IF IT IS NOT IN THE PRESCRIBED FORM OR RETURN IT FOR BEING SUBMITTED WITHIN SUCH TIME AS M AY BE ALLOWED. THE LD. COUNSEL THEN REFERRED TO RULE 26 OF THE ITAT RULES AND SUBM ITTED THAT IN CASE OF DEATH OF THE ASSESSEE, THE APPEAL SHALL NOT ABATE BUT THE LE GAL HEIR OF THE ASSESSEE HAS TO BE BROUGHT ON RECORD BY FILING THE REVISED FORM NO. 36 BUT THIS RULE IS APPLICABLE ONLY WHEN THE DEATH OCCURRED DURING THE PENDENCY OF THE APPEAL BEFORE THE TRIBUNAL. THEREFORE, THE ITAT RULES DO NOT PROVIDE FILING OF REVISED FORM NO. 36 IF THE ASSESSEE HAS ALREADY DIED AND THE APPEAL WAS FILED AGAINST T HE DECEASED ASSESSEE. HENCE, THE LD. COUNSEL HAS SUBMITTED THAT THE APPEAL FILED BY THE REVENUE DESERVES TO BE QUASHED BEING INVALID. 3. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T SINCE THE IMPUGNED ORDER OF THE LD. CIT (A) IS PASSED IN THE NAME OF THE DEC EASED ASSESSEE AND THE ASSESSMENT ORDER WAS ALSO PASSED WHEN THE ASSESSEE WAS ALIVE, THEREFORE, AT THE TIME OF FILING THE APPEAL THIS FACT OF DEATH OF ASS ESSEE HAS ESCAPED THE ATTENTION AND DUE TO INADVERTENCE THE APPEAL WAS FILED IN THE NAM E OF THE DECEASED ASSESSEE. 4 ITA NO. 662/JP/2018 LATE SHRI CHANDI RAM, THROUGH L/H SMT. SARLA DEVI, KOTA. HOWEVER, THE REVENUE HAS TAKEN THE STEPS TO SUBSTIT UTE THE DECEASED ASSESSEE BY THE LEGAL HEIR OF THE ASSESSEE AS RESPONDENT BY FIL ING THE REVISED FORM NO. 36. HE HAS THUS CONTENDED THAT THE DELAY OF 10 DAYS AS PER THE LIMITATION PROVIDED UNDER SECTION 253(3) OF THE ACT MAY BE CONDONED AS THE SA ME IS NOT INTENTIONAL OR DELIBERATE BUT DUE TO THE FACT THAT AT THE TIME OF FILING THE ORIGINAL FORM NO. 36 THERE WAS AN INADVERTENT MISTAKE WHICH WAS THEN RECTIFIED BY FILING THE REVISED FORM NO. 36 ON 26 TH JULY, 2018. THUS THE LD. D/R HAS SUBMITTED THAT TH E REVENUE HAS TAKEN THE CORRECTIVE STEPS IMMEDIATELY AFTER REALIZING TH E FACT THAT THE ASSESSEE HAD ALREADY EXPIRED ON 21 ST FEBRUARY, 2017 AND FILED THE AMENDED FORM NO. 36 W HICH WAS DULY TAKEN ON RECORD. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE ASSESSEE LATE SHRI CHANDI RAM HAD EXPIRED ON 21 ST FEBRUARY, 2017 DURING THE PENDENCY OF THE APPEAL B EFORE THE LD. CIT (A). THIS FACT WAS APPRISED TO THE AO BY THE LEGAL HEIR BY VA RIOUS LETTERS AND ALSO BROUGHT TO THE NOTICE OF THE LD. CIT (A). HOWEVER, THE LD. CIT (A) HAS PASSED THE IMPUGNED ORDER IN THE NAME OF THE DECEASED ASSESSEE AND NOT AGAINST THE LEGAL HEIR OF THE DECEASED ASSESSEE. THE AO WAS VERY MUCH AWARE ABOU T THE DEATH AS IT IS MANIFEST FROM THE RECORD THAT EVEN THE SET ASIDE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2004-05 WAS PASSED BY THE AO ON 21 ST DECEMBER, 2017 IN THE NAME OF LEGAL HEIR. WHEN THE APPEAL OF THE REVENUE WAS LISTED FOR HEARI NG FIRST TIME BEFORE THE TRIBUNAL ON 12 TH JULY, 2018, THE LEGAL HEIR OF THE DECEASED ASSESSE E FILED AN APPLICATION RAISING THE OBJECTION AGAINST THE MAINTAINABILITY O F THE APPEAL. ON THAT DATE OF HEARING, THE TRIBUNAL ADJOURNED THE MATTER TO 4 TH SEPTEMBER, 2018 AND DIRECTED THE AO TO SUBMIT THE REPORT ON THE EXPIRY OF THE ASSESS EE AND NECESSARY STEPS/ACTION 5 ITA NO. 662/JP/2018 LATE SHRI CHANDI RAM, THROUGH L/H SMT. SARLA DEVI, KOTA. TAKEN. IMMEDIATELY AFTER THE SAID DIRECTIONS OF TH E TRIBUNAL, THE AO HAS FILED A REVISED MEMORANDUM OF APPEAL IN FORM NO. 36 WHEREIN DECEASED ASSESSEE HAS BEEN SUBSTITUTED BY THE LEGAL HEIR. IT IS PERTINEN T TO NOTE THAT ON 12 TH JULY, 2018 WHEN THE TRIBUNAL DIRECTED THE AO TO TAKE THE NECES SARY ACTION ON THIS ASPECT, THE LIMITATION HAD ALREADY EXPIRED FOR FILING THE APPEA L AGAINST THE IMPUGNED ORDER OF THE LD. CIT (A). HOWEVER, SINCE THE TRIBUNAL HAS DIREC TED THE AO TO TAKE NECESSARY ACTION AND THEREBY GRANTED THE LEAVE TO THE DEPARTM ENT TO SUBSTITUTE THE DECEASED ASSESSEE BY LEGAL HEIR, THEREFORE, THE REVISED FORM NO. 36 FILED BY THE DEPARTMENT ON 26 TH JULY, 2018 IS AS PER THE LEAVE GRANTED BY THE TRIB UNAL FOR BRINGING THE LEGAL HEIR ON RECORD. THERE IS NO QUARREL ON THE POINT THAT T HE APPEAL FILED AGAINST THE DECEASED ASSESSEE IS NOT MAINTAINABLE, HOWEVER, THE SAID INVALID APPEAL FILED BY THE REVENUE WILL NOT FORFEIT THE RIGHT TO FILE A FRESH APPEAL AGAINST THE LEGAL HEIR SUBJECT TO THE LEAVE OF THE COURT. IN THE CASE IN HAND, SIN CE THE REVENUE WAS ALLOWED TO TAKE THE NECESSARY STEPS, THEREFORE, THE DELAY IN FILING THE MEMORANDUM OF APPEAL AGAINST THE LEGAL HEIR OF THE DECEASED ASSESSEE HAS BEEN FOUND TO BE EXPLAINED BY THE REVENUE DUE TO INADVERTENT MISTAKE AND, THEREFO RE, EVEN IF THE SAID REVISED FORM NO. 36 IS FILED BELATEDLY, THE TRIBUNAL IS SATISFIE D WITH THE REASONS AND CAUSE OF DELAY EXPLAINED BY THE LD. D/R. ACCORDINGLY, THE DELAY IN FILING THE FORM NO. 36 IS CONDONED. 5. AS REGARDS THE DECISIONS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE, THERE IS NO DISPUTE THAT THE APPEAL FILED AGAINST T HE DECEASED ASSESSEE IS NOT COVERED UNDER THE PROVISIONS OF SECTION 292B AND, THEREFORE, THE SAME IS AN INVALID APPEAL LIABLE TO BE DISMISSED. HOWEVER, THE APPEAL DISMISSED BEING INVALID IN LIMINI DUE TO THE REASON OF IMPLEADING A DECEASED ASSESSEE CANNOT TAKE AWAY THE RIGHT OF 6 ITA NO. 662/JP/2018 LATE SHRI CHANDI RAM, THROUGH L/H SMT. SARLA DEVI, KOTA. THE APPELLANT TO FILE A FRESH APPEAL AGAINST THE LE GAL HEIR OF THE DECEASED ASSESSEE SUBJECT TO THE PROVISIONS OF LIMITATION AND LEAVE T AKEN FROM THE COURT. HENCE ONCE THE TRIBUNAL HAS GRANTED THE LEAVE TO THE REVENUE F OR FILING THE REVISED FORM NO. 36, THE APPEAL OF THE REVENUE IS ADMITTED FOR DECIDING ON MERITS. THE LEGAL PRELIMINARY OBJECTION RAISED BY THE ASSESSEE IS REJECTED. THE APPEAL OF THE REVENUE IS DIRECTED TO BE LISTED FOR HEARING ON MERITS ON 14 TH OCTOBER, 2019. IN THE RESULT, PRELIMINARY OBJECTION OF THE ASSESSEE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 31/07/20 19. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 31/07/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ITO WARD 1(1),KOTA. 2. THE RESPONDENT LATE SHRI CHANDI RAM, THROUGH L/ H SMT. SARLA DEVI, KOTA. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 662/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 7 ITA NO. 662/JP/2018 LATE SHRI CHANDI RAM, THROUGH L/H SMT. SARLA DEVI, KOTA. LIMITATION FOR FILING THE APPEAL AGAINST THE IMPUGN ED ORDER WAS STILL AVAILABLE AS THE IMPUGNED ORDER WAS COMMUNICATED TO THE CONCERNED CI T ON 16 TH MARCH, 2018 AND 8 ITA NO. 662/JP/2018 LATE SHRI CHANDI RAM, THROUGH L/H SMT. SARLA DEVI, KOTA.