LATE SHRI SHETTY KARIANNA M. OF M.S, NEW CANARA HINDU ASHRAM, MUMBAI V. ITO WD 26(8), MUMBAI

ITA 793/MUM/2010

• Counselvise Citation: 79319914 RSA 2010
• Duration Of Justice: 1 year(s) 2 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 28-03-2011
• Assessment Year: 1998-1999
• Appeal Filed On: 02-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHUA
• Assessee Lawyers: D H SAVE
• Section: 144; 143(3); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E, MUMBAI BEFORE SHRI P.M. JAGTAP AND SMT. ASHA VIJAYARAGHAV AN, JM I.T.A.NO.793/MUM/2010 ASSESSMENT YEAR: 1998-99 LATE SHRI SHETTY KARIANNA M. OF M/S.NEW CANARA HINDU AHRAM, 219, NOOR BUILDING, CAWASJI HORMASJI ST., MUMBAI 400 002. PAN: AADFN 3167 C VS. THE INCOME-TAX OFFICER, WARD 26(8), 6 TH FLOOR, EARNEST HOUSE, NARIMAN POINT, MUMBAI. 400 021. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI D.H. SAVE RESPONDENT BY : MS. MAHUA O R D E R PER P.M. JAGTAP, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX(APPEALS)-25, MUMBAI, DAT ED 07.12.2009 FOR THE ASSESSMENT YEAR 1998-99. 2. THE ASSESSEE IN THE PRESENT CASE FILED A RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 11.12.1998 IN HIS INDIVIDUAL CAPACITY DECLARING A TOTAL INCOME OF RS.64,840/-. THE SAID RETURN WAS PICKED UP FOR SCRUTINY ASSESSMENT AND NOTICES UNDER SECTION 143(2) AND 142(1) WERE ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE ON 27.09.1999. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE EXPIRED ON 12.8.2000 AS NOTED BY THE ASSES SING OFFICER IN HIS ASSESSMENT ORDER. FINALLY THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER U/S.144 VIDE AN ORDER DATED 30.03.2001 ASSESSING THE TOTAL INCOM E OF THE ASSESSEE AT RS.7,50,000/-. THE SAID ASSESSMENT THUS WAS MADE BY THE ASSESSING OFFICER IN THE NAME OF THE ASSESSEE WHEN THE LATTER WAS NOT ALIVE. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER, AN APPEAL WAS FILED ON BEHAL F OF THE ASSESSEE WHICH WAS DISMISSED BY THE LEARNED CIT(A) BY HIS APPELLATE OR DER DATED 07.12.2009 WHICH IS ITA NO.794/M/2010 LATE SHRI SHETTY KARIANNA M. 2 CHALLENGED IN THE PRESENT APPEAL FILED BEFORE THE T RIBUNAL BY THE LEGAL HEIR OF THE ASSESSEE. 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. THE PRELIMINARY ISSUE WHICH HAS BEEN RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US IS THAT THE ASSESSMENT MADE BY THE ASSESSING OFFICER U/S.144 ON 30./3.2001 IN THE NAME OF THE DECEASED ASSESSEE IS NOT VALID IN THE EYES OF LAW AND THE SAME IS LIABLE TO BE QUASHED. IN SUPPORT OF HIS CONTENTION, HE HAS RELIED, INTER ALIA, ON THE DECIS ION OF THE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT V. DALUMAL SHYAMULAL (276 ITR 62) (MP) WHEREIN THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER U NDER SECTION 143(3) FOR THE ASSESSMENT YEAR 1990-91 AGAINST THE DECEASED ASSESS EE WITHOUT BRINGING THE LEGAL REPRESENTATIVE ON RECORD IN SPITE OF THE FACT THAT THE DEATH OF THE ASSESSEE WAS INTIMATED TO HIM MUCH PRIOR TO THE COMPLETION OF TH E ASSESSMENT AND IN THESE FACTS OF THE CASE, THE HONBLE MADHYA PRADESH HIGH COURT HELD THAT THE TRIBUNAL WAS FULLY JUSTIFIED IN ANNULLING THE ASSESSMENT MA DE BY THE ASSESSING OFFICER AGAINST THE DECEASED ASSESSEE WITHOUT BRINGING THE LEGAL REPRESENTATIVE ON RECORD. IT WAS ALSO HELD BY THE HONBLE MADHYA PRADESH HIGH CURT THAT THE CASE SHOULD HAVE BEEN REMANDED BY THE TRIBUNAL TO THE ASSESSING OFFICER FOR ENSURING COMPLIANCE WITH SECTION 159 BY PASSING APPROPRIATE ORDER OF ASSESSMENT AFTER DUE NOTICE TO THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE. RESPECTFULLY FOLLOWING THE SAID DECISION OF THE HONBLE MADHYA PRADESH HIG H COURT IN CIT V. DALUMAL SHYAMULAL (SUPRA), WE ANNUL THE ASSESSMENT MADE BY THE ASSESSING OFFICER UNDER SECTION 144 AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO PASS A PROPER ASSESSMENT ORDER AFTER COMPLYING WITH THE PROVISION S OF SECTION 159. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED AS INDICATED ABOVE. ITA NO.794/M/2010 LATE SHRI SHETTY KARIANNA M. 3 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 29 TH DAY OF APRIL, 2011. SD. SD. (ASHA VIJAYARAGHAVAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED THE 29 TH APRIL, 2011. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT-IX, MUMBAI. 4. THE CIT(A)-25, MUMBAI 5. THE DR E BENCH, MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR, ITAT, MUMBAI