Vatsal R. Prajapati L/h of Late Rameshbhai Dalpatbhai Prajapati, Surat V. Income Tax Officer, Ward-1(3)(4), Surat

ITA 733/SRT/2023

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7943 (ITAT-SURAT)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-04-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 24-10-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 148; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.733/SRT/2023 Assessment Year: (2012-13) (Physical Hearing) L/h Vatsal R. Prajapati, Late Rameshbhai Dalapatbhai Prajapati, B-25, Gokul Raw House, Somnath Mahadev Road, Athwalines, Surat – 395007. Vs. The ITO, Ward – 1(3)(4), Surat èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AMWPP5732A (Appellant) (Respondent) Appellant by Shri Kiran K. Shah, CA Respondent by Shri Vinod Kumar, Sr. DR Date of Hearing 03/04/2024 Date of Pronouncement 08/04/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to Assessment Year (AY) 2012-13, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals), [in short “the ld. CIT(A)”], National Faceless Appeal Centre (in short ‘the NFAC’), Delhi, dated 21.09.2023, which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), dated 28.11.2019. 2. At the outset, Learned Counsel for the assessee, argued that during appellate proceedings, the assessee was died. However, the information about the death and the death certificate was not filed by the legal heir of the assessee before the ld CIT(A). The assessee died on Page | 2 ITA.733/SRT/2023/AY.2012-13 Vatsal R. Prajapat (L/h of Rameshbhai D. Prajapati) 09.08.2021. The ld Counsel stated that the information of the death of the assessee was not there when the assessment proceedings were going on, however, during the appellate proceedings, the assessee has died and Ld. CIT appeal has passed the order on the dead person. The ld. Counsel stated that although information was not there before the Ld CIT(A) about the death of the assessee, however, the order so passed by the Ld. CIT (A) does not valid in the eye law. Hence, order passed by the Ld CIT(A) is not valid and it should be quashed. 3. On merit, ld Counsel stated that assessment order was framed by the assessing officer under section 143(3)/147 of the Act, and assessee submitted entire information and documents before the assessing officer. On appeal, the ld CIT(A) adjudicated the issue on merit also, hence assessee`s matter may be adjudicated on merit also by this Tribunal. The Ld. Counsel submitted on merit that Assessing Officer made the addition on the advance received by the assessee; as the advance receipts are not income and hence these receipts are not the subject matter of taxation, and these facts were mentioned in the statement of facts submitted before the ld CIT(A), therefore, ld CIT(A) could have deleted the addition based on the statement of facts submitted in Form No.35. 4. On the other hand, learned Senior Departmental Representative (ld. Sr. DR) for the Revenue submitted that the information of the “death” has not been provided by the assessee to the ld. CIT(A), during the appellate proceedings therefore, ld. CIT(A) was not aware about the death of the assessee, hence the matter may be remitted back to the file of the ld. CIT(A) with the direction to the assessee to produce death certificate before the ld. CIT(A) and to provide ‘documentary evidences’ on merits of the case before ld. CIT(A). Page | 3 ITA.733/SRT/2023/AY.2012-13 Vatsal R. Prajapat (L/h of Rameshbhai D. Prajapati) 5. We have heard both the parties and carefully gone through the submission put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the fact of the case including the findings of the ld CIT(A) and other materials brought on record. We note that it is an admitted fact that during the appellate proceedings, the assessee died and for that he submitted a death certificate dated 09.08.2021. However, the Ld. CIT(A) was not aware about the death of the assessee, therefore, he dismissed the appeal of the assessee on account of non-prosecution, as well as, the ld CIT(A) has also decided the appeal of the assessee on merit based on the material available before him by way of “statement of facts” and “assessment records”. We note that in absence of a statutory provision, a duty cannot be cast upon legal representatives of the assessee, to intimate factum of death of assessee to the Income Tax Department and therefore where assessing officer issued a notice to the assessee under section 148 of the Act, after death of assessee, in such a case, it could not have been validly served, upon the assessee, therefore said notice, being invalid, was quashed, for that reliance can be placed on the judgement of the Hon`ble High Court of Delhi in the case of Savita Kapila, 118 taxmann.com 46 (Delhi). 6. On merit, we note that assessee received advance which is not subject to tax. However, after all, we know that assessee could not get an opportunity to plead his case on technical issue of “death of assessee” as well as, on merit, before ld CIT(A). Therefore, we are of the view that matter may be remitted back to the file of the ld. CIT(A) for fresh adjudication. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to adjudicate the issue afresh on technical issue of “death” as well as on Page | 4 ITA.733/SRT/2023/AY.2012-13 Vatsal R. Prajapat (L/h of Rameshbhai D. Prajapati) merits. The assessee is directed to submit the death certificate and required documents and details, as and when, if any, required by the ld CIT(A). For statistical purposes, the appeal of the assessee is treated as allowed. 7. In the result, the appeal of the assessee is allowed for statistical purposes. Order is pronounced on 08/04/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 08/04/2024 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat