Sh. Kanti Kumar Gupta through L/H Smt. Sarita Gupta, Ludhiana V. JCIT, Ludhiana

ITA 735/CHANDI/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8935 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 07-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: PANKAJ BHALLA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH,CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 735/CHD/2016 ASSESSMENT YEAR : 2005-06 SHRI KANTI KUMAR GUPTA, VS THE JCIT, THROUGH L/H SMT. SARITA GUPTA, RANGE-II, PROP. OF M/S AMBICA TRADERS, LUDHIANA. E-64-65, RISHI NAGAR, LUDHIANA. PAN: ABZPG4941J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ BHALLA RESPONDENT BY : SHRI MANJIT SINGH DATE OF HEARING : 06.12.2016 DATE OF PRONOUNCEMENT : 06.12.2016 O R D E R PER BHAVNESH SAINI,JM THIS APPEAL BY ASSESSEE HAS BEEN DIRECTED AGAINST THE ORDER OF LD. CIT(APPEALS)-I LUDHIANA DATED 28.03.2016 FOR ASSESSMENT YEAR 2005-06. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE SHRI K ANTI KUMAR GUPTA IS INDIVIDUAL AND FILED RETURN OF INCOM E DECLARING INCOME OF RS. 13,14,270/-. THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER UNDER SECTION 143(3) OF INCOME TAX ACT VIDE ORDER DATED 24.12.200 7 AND MADE FOUR ADDITIONS TO THE RETURNED INCOME. TH E ASSESSEE CHALLENGED THE ADDITIONS ON MERIT BEFORE L D. 2 CIT(APPEALS). THE LD. CIT(APPEALS) NOTED VARIOUS D ATES OF HEARING ON WHICH APPEAL WAS FIXED BEFORE HIM FOR HEARING ON MERITS WHICH STARTED FROM FIXING THE APP EAL FROM DECEMBER,2009 TO JANUARY,2016 ON VARIOUS DATES . MANY TIMES NOTICES RECEIVED RETURNED UNSERVED AND ULTIMATELY COUNSEL FOR ASSESSEE APPEARED BEFORE LD. CIT(APPEALS) AND REQUESTED FOR ADJOURNMENT ON MANY DATES AND ULTIMATELY FINAL NOTICE WAS ISSUED ON 27.01.2016 FIXING THE CASE FOR HEARING FOR 16.02.20 16. HOWEVER, NONE APPEARED BEFORE LD. CIT(APPEALS). TH E LD. CIT(APPEALS), THEREFORE, IN THE ABSENCE OF THE ASSE SSEE, CONFIRMED ALL THE ADDITIONS ON MERIT AND DISMISSED THE APPEAL OF THE ASSESSEE. 3. THE LD. COUNSEL FOR THE ASSESSEE FILED AFFIDAVIT OF SMT. SARITA GUPTA, DAUGHTER OF LATE SHRI KANTI KUMA R GUPTA (ASSESSEE) CONFIRMING THEREIN THAT THE ASSESS EE HAS EXPIRED ON 03.07.2015 WHICH IS SUPPORTED BY COP Y OF THE DEATH CERTIFICATE. 4. AFTER CONSIDERING RIVAL SUBMISSIONS, WE ARE OF T HE VIEW THE MATTER REQUIRES RE-CONSIDERATION AT THE LE VEL OF THE LD. CIT(APPEALS). IT IS ADMITTED FACT THAT NOT ICES HAVE BEEN SERVED UPON ASSESSEE FOR HEARING OF THE APPEAL ON MERIT BEFORE LD. CIT(APPEALS) AND LD. COU NSEL FOR THE ASSESSEE SOUGHT ADJOURNMENT ON MANY DATES. WHEN ASSESSEE HAS EXPIRED, AS PER INFORMATION OF TH E LD. COUNSEL FOR THE ASSESSEE, ON 03.07.2015, THIS FACT SHOULD HAVE BEEN BROUGHT TO THE NOTICE OF THE LD. 3 CIT(APPEALS) SO AS TO BRING THE LEGAL HEIR OF THE A SSESSEE ON RECORD OF THE APPEAL PENDING BEFORE LD. CIT(APPE ALS). THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER, SUBMITTE D THAT HE WAS IGNORANT ABOUT THESE PROVISIONS AND COU LD NOT INTIMATE THE LD. CIT(APPEALS) ABOUT DEATH OF TH E ASSESSEE. IT IS, THEREFORE, CLEAR THAT THE INTIMAT ION OF DEATH OF THE ASSESSEE WAS NOT INTIMATED TO THE LD. CIT(APPEALS). THEREFORE, NO LEGAL HEIR OF THE ASSE SSEE HAVE BEEN BROUGHT ON RECORD OF THE APPEAL PENDING BEFORE THE LD. CIT(APPEALS). AFTER DEATH OF THE AS SESSEE ON 03.07.2015, THE LD. CIT(APPEALS) ISSUED NOTICE F OR 16.02.2016 BECAUSE LD. CIT(APPEALS) WAS NOT AWARE O F DEATH OF THE ASSESSEE. THEREFORE, PASSING EX-PARTE ORDER IN SUCH CIRCUMSTANCES WOULD NOT BE JUSTIFIED. IT I S A MISTAKE OF LD. COUNSEL FOR THE ASSESSEE IN NOT INTI MATING THE DEATH OF THE ASSESSEE TO THE LD. CIT(APPEALS). HE IS, THEREFORE, WARNED TO BE CAREFUL IN FUTURE IN SUCH T YPE OF MATTERS. HOWEVER, THE THING REMAINED THE SAME THAT THE ASSESSEE EXPIRED ON 03.07.2015 PENDING THE APPEAL BEFORE LD. CIT(APPEALS) AND LD. CIT(APPEALS) DECIDE D THE APPEAL IN IGNORANCE OF THIS FACT WITHOUT BRINGING L EGAL HEIR OF THE ASSESSEE ON RECORD. IN THESE CIRCUMSTA NCES, THE EX-PARTE ORDER PASSED BY THE LD. CIT(APPEALS) W OULD NOT BE JUSTIFIED AND THE MATTER REQUIRES RE-CONSIDE RATION ON MERITS AFTER BRINGING THE LEGAL HEIR OF THE ASSE SSEE ON RECORD. 4 5. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDER AND RESTORE THE APPEAL OF THE ASSESS EE TO THE FILE OF LD. CIT(APPEALS) WITH DIRECTION TO R E-DECIDE THE APPEAL OF THE ASSESSEE ON MERIT AFTER BRINGING THE LEGAL HEIR OF THE ASSESSEE ON RECORD. THE LEGAL HEI R OF THE ASSESSEE ARE DIRECTED TO COOPERATE WITH THE LD. CIT(APPEALS) IN FINALIZATION OF THE MATTER IN ACCOR DANCE WITH LAW. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- ( ANNAPURNA GUPTA) (BHAVNESH SAINI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6 TH DECEMBER,2016. POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT,DR ASSISTANT REGISTRAR, ITAT/CHD