Late Smt. Saroj Gupta through L/H Shri K.S. Gupta, Meerut V. ITO, Ward- 2(3), Meerut

ITA 7091/DEL/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 5367 (ITAT-DELHI)
• Duration Of Justice: 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 27-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 92B; 68; 10

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER ITA NO. 7091 /DEL/201 7 [ASSESSMENT YEAR: 2 0 1 4 - 1 5 ] LATE SMT. SAROJ GUPTA VS. THE I . T . O THROUGH L/H SHRI K.S. GUPTA WARD 2 ( 3 ) A - 138, SHASTRI NAGAR, MEERUT MEERUT PAN : AIKPG 4800 E [APPELLANT] [RESPONDENT] DATE OF HEARING : 26 . 0 9 .201 8 DATE OF PRONOUNCEMENT : 0 8 . 1 0.2018 ASSESSEE BY : SHRI K. SAMPATH, ADVOCATE REVENUE BY : S HRI SURENDRA PAL , SR. DR ORDER PER N .K. BILLAIYA, ACCOUNTANT MEMBER: WITH T HIS APPEAL , THE ASSESSEE HAS CHALLENGED THE CORRECTNESS OF THE ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] MEERUT DATED 09 . 11 .201 7 PERTAINING TO ASSESSMENT YEAR 20 1 4 - 1 5 . 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE IS THAT THE ASSESSING OFFICER ERRED IN FRAMING THE ASSESSMENT ORDER IN TH E NAME OF A DEAD PERSON AND THE CIT(A) FURTHER ERRED IN CONFIRMING THE ASSESSMENT. THE ASSESSEE IS FURTHER AGGRIEVED BY THE ADDITION MADE U/S 68 OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' ] . 3. R EPRESENTATIVES OF BOTH THE SIDES WERE HEARD AT LENGTH. THE CASE RECORDS CAREFULLY PERUSED AND WITH THE ASSISTANCE OF THE LD. COUNSEL, WE HAVE CONSIDERED THE DOCUMENTARY EVIDENCES BROUGHT ON RECORD IN THE FORM OF PAPER BOOK IN LIGHT OF RULE 18(6) OF ITAT RULES. JUDICIAL DECISIONS RELIED UPON WERE CAREFULLY PERUSED. 4. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 8,06,450/ - ON 29.07.2014. THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT AND ACCORDINGLY, STATUTORY NOTICES W ERE ISSUED AND SERVED UPON THE ASSESSEE. 3 5. IN REPLY TO THE QUERIES RAISED ON 16.12.2016, THE LD. AR SPECIFICALLY MENTIONED THAT THE ASSESSEE HAS EXPIRED ON 29.11.2016, AND, IN THIS CONNECTION, DEATH CERTIFICATE WAS SUBMITTED TO THE ASSESSING OFFICER. ON CE AGAIN, VIDE REPLY DATED 22.12.2016, THE LD. AR BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THAT THE ASSESSEE HAS EXPIRED ON 29.11.2016. 6. SURPRISINGLY, ASSESSMENT ORDER IS DATED 22.12.2016 AND IS FRAMED IN THE NAME OF THE DEAD PERSON. 7. WHEN THE MATTER WAS AGITATED BEFORE THE CIT(A), THE CIT(A) CONFIRMED THE ASSESSMENT ORDER STATING THAT A MISTAKE IN THE ASSESSMENT ORDER IS A CURABLE MISTAKE U/S 292B OF THE ACT AND DOES NOT, IN ANY WAY, VITIATE THE ASSESSMENT PROCEEDINGS. THE APPEAL WAS DISMISSED ON THE POINT OF LAW AND FURTHER, THE ADDITIONS MADE BY THE ASSESSING OFFICER WERE CONFIRMED. 8. BEFORE ME, ONCE AGAIN THE LD. AR REITERATED ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. 4 9. THE LD. DR STRONGLY SUPPORTED THE FINDIN GS OF THE CIT(A) AND READ THE RELEVANT FINDINGS OF THE CIT(A). 10. I HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISPUTE THAT VIDE LETTERS DATED 16.12.2016 AND 22.12.2016, THE LD. AR HAD VERY SPECIFICALLY BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THAT THE ASSESSEE HAS EXPIRED. THE ASSESSMENT ORDER IS DATED 22.12.2016 , WHICH MEANS THAT THE ASSESSING OFFICER HAD SUFFICIENT TIME T O INVOKE THE PROVISIONS OF SECTION 159 AND BRING THE LEGAL HEIR ON RECORD. IN MY CONSIDERED OPINION, WHERE THE ASSESSEE DIED BEFORE THE ASSESSMENT PROCEEDINGS WERE COMPLETED, IT IS INCUMBENT U/S 159(2) OF THE ACT ON THE ASSESSING OFFICER TO BRING THE LEGA L REPRESENTATIVE OF THE DECEASED ON RECORD AND TO PROCEED FROM THE STAGE AT WHICH IT WAS LEFT AT THE TIME OF DEATH OF THE DECEASED. I AM OF THE VIEW THAT ON THE DEATH OF A PERSON, HIS LEGAL PERSONALITY CEASES TO EXIST AND THEREAFTER, NO ORDER CAN BE PASSE D AGAINST SUCH DEAD PERSON. 11. THE FIRST APPELLATE AUTHORITY FURTHER ERRED IN NOT APPRECIATING THE LAW IN TRUE PERSPECTIVE AND WRONGLY RELIED UPON THE PROVISIONS OF SECTION 292B OF THE ACT. I AM OF THE CONSIDERED OPINION THAT THE 5 PROVISIONS OF SECTION 2 92B OF THE ACT DO NOT PERMIT AN ASSESSING OFFICER TO FRAME ASSESSMENT ON A DEAD PERSON. I, ACCORDINGLY, SET ASIDE THE ORDER OF THE CIT(A) AND QUASH THE ASSESSMENT ORDER. 1 2 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 709 1 /DEL/201 7 IS ALLOWED . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 0 8 . 10 .2018 . S D / - [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 0 8 T H OCTOBER , 2018 VL/ COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 6 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 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