Sh. Subhash Chander, Ludhiana V. ITO, Ludhiana

ITA 881/CHANDI/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6803 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 9 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Next Hearing Date: 15-02-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 07-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Assessee Lawyers: SSH KULDEEP SINGH AMADEEP VATS
• Section: 143(3); 148

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES, B CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER & MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ITA NO. 881/CHD/2015 ASSESSMENT YEAR: 2011-12 SH. SUBHASH CHANDER, VS. THE ITO, WARD-III(3), PROP. M/S KISSAN COLD STORAGE, LUDHIANA LUDHIANA PAN NO. ABCPC9498H (APPELLANT) (RESPONDENT) APPELLANT BY : S/SH. KULDEEP SINGH / AMADEEP VATS RESPONDENT BY : SH. RAVI SARANGAL DATE OF HEARING : 04.09.2017 DATE OF PRONOUNCEMENT : 28.09.2017 ORDER PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED ON BEHALF OF THE ASSESSEE (SH. SUBHASH CHANDER - SINCE DECEASED) BY HIS LEGAL HEIR SHRI GAURAV AHUJA, AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1 [HEREINAFTER REFERRED TO AS CIT(A)], LUDHIANA DAT ED 30.09.2015 IN RELATION TO THE ADDITIONS MADE IN THE ASSESSMENT PR OCEEDINGS CARRIED OUT U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE A CT') BY THE ASSESSING OFFICER. 2 2. THE LD. AR OF THE ASSESSEE AT THE OUTSET HAS SUB MITTED THAT ASSESSMENT IN THIS CASE HAS BEEN FRAMED BY THE ASSE SSING OFFICER ON A DEAD PERSON. THE ASSESSEE SHRI SUBHASH CHANDER HAD DIED ON 16.5.2012 WHEREAS THE STATUTORY NOTICE FOR FRAMING OF ASSESSMENT U/S 143(2) OF THE ACT WAS ISSUED ON 20.09.2012 AT A TIME, WHEN, THE ASSESSEE SHRI SUBHASH CHANDER WAS NO MORE IN THIS WORLD. THE NOTICE OF ASSESSMENT PROCEEDINGS, THUS, HAS BEEN ISSUED AGAINST THE DEAD PERSON. IT HAS BEEN FU RTHER CONTENDED THAT THE FACT OF DEATH OF DECEASED SHRI SUBHASH CAHNDER WAS DULY BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER BUT THE ASSESSING O FFICER IGNORING THE SAID FACT PROCEEDED TO FRAME THE ASSESSMENT AGAINST THE DEAD PERSON. THE LD. COUNSEL FOR THE ASSESSEE IN THIS REGARD HAS INVITED OUR ATTENTION TO THE COPY OF A LETTER DATED 28.03.2014 SENT BY THE COUNSEL F OR THE ASSESSEE SHRI INDER SINGH MALHI, WHEREIN, IT HAS BEEN MENTIONED THAT SH RI SUBHASH CHANDER HAS DIED ON 16.5.2012. FURTHER, A PERUSAL OF THE PA RA 2.3 OF THE ASSESSMENT ORDER REVEALS THAT ASSESSING OFFICER WAS WELL AWARE OF THE FACT THAT HE WAS FRAMING THE ASSESSMENT AGAINST THE DECEASED PERSON AS HE HIMSELF HAS MENTIONED IN PARA 2.3 OF ASSESSMENT ORDER : .. IN RESPONSE THERETO, THE AUTHORISED REPRESENTATIVE ATTENDED THE PROCEEDINGS ALONGWITH SH. GAURV, SON OF THE DECEASED ASSESSEE .. THE LD. AR, THEREFORE, HAS SUBMITTED THAT THE ASSESSMENT IS VOID ABINITIO AS THE SAME HA S BEEN FRAMED AND COMPLETED AGAINST A DEAD PERSON. 3. ON THE OTHER HAND, LD. DR HAS SUBMITTED THAT SIN CE THE LEGAL HEIRS OF THE DECEASED ASSESSEE HAD ATTENDED THE PROCEEDINGS, THE PROVISIONS OF SECTION 159 OF THE ACT ARE NOT APPLICABLE AND, THER EFORE, THE ASSESSMENT CANNOT BE SAID TO BE INVALID. HE HAS FURTHER SUMMIT ED THAT EVEN OTHERWISE 3 IT WAS THE DUTY OF THE LEGAL HEIRS OF THE ASSESSEE TO GET THEMSELVES IMPLEADED IN THE ASSESSMENT PROCEEDINGS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS. THE ISSUE B EFORE US IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF RASID LALA VS. ITO, (2017) 77 TAXMAN.COM 39 (GUJA RAT); WHEREIN THE RE- ASSESSMENT PROCEEDINGS WERE INITIATED AGAINST THE D EAD PERSON BY ISSUANCE OF NOTICE U/S 148 OF THE ACT IN THE NAME OF THE DEC EASED PERSON AND DESPITE POINTING OUT BY THE LEGAL HEIR OF THE DECEA SED PERSON THAT THE ASSESSEE HAD ALREADY EXPIRED, THE ASSESSING OFFICE R PROCEEDED TO FRAME THE ASSESSMENT, THE HON'BLE GUJARAT HIGH COURT HELD THA T THE IMPUGNED NOTICE ISSUED U/S 148 OF THE ACT WAS LIABLE TO BE QUASHED AND SET ASIDE. THE HON'BLE HIGH COURT FURTHER OBSERVED THAT THE PROVIS IONS OF SECTION 159 OF THE ACT WOULD NOT BE APPLICABLE IN THAT CASE. THE HON'BLE HIGH COURT OBSERVED THAT EVEN., IF, SECTION 159 WAS ATTRACTE D, IN THAT CASE ALSO, THE NOTICE WAS REQUIRED TO BE ISSUED AGAINST AND IN THE NAME OF THE HEIR OF THE DECEASED ASSESSEE. IN THESE CIRCUMSTANCES, SECTION 159 OF THE ACT WAS NOT OF ANY ASSISTANCE TO THE REVENUE. THE HON'BLE MADR AS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX M. HEMANATHAN (2016) 68 TAXMAN.COM 22 (MADRAS) HAS HELD THAT WHERE NOTICE I SSUED IN THE NAME OF THE DECEASED ASSESSEE WAS SERVED UPON THE LEGAL HEI R, WHO, THEN, PARTICIPATED IN THE PROCEEDINGS, SUCH PROCEEDING WA S A NULLITY BEING INITIATED AGAINST THE DEAD PERSON AND FURTHER SAID LEGAL HEIR COULD NOT BE DEPRIVED OF RIGHT TO CHALLENGE THE SERVICE OF NOTIC E. FURTHER, THT THE PROVISIONS OF SECTION 292BB IS NOT APPLICABLE IN S UCH CASES AS THEY WOULD APPLY ONLY ON TWO TYPE OF PROCEEDINGS, NAMELY (I) PROCEEDINGS, IN WHICH, 4 THE ASSESSEE HAD APPEARED; AND (II) IN INQUIRY, IN WHICH, THE ASSESSEE HAD COOPERATED. WHEN, DESPITE BEING PUT ON NOTICE THAT THE NOTICEE WAS DEAD, THE DEPARTMENT CHOSE TO PURSUE VERY SAME NOTICE, IN SUCH CIRCUMSTANCES, CLAUSE (B) OF SECTION 159(2) OF THE ACT CANNOT BE T AKEN ADVANTAGE OF BY THE DEPARTMENT. THE NOTICE SHOULD HAVE BEEN ADDRESSED T O THE LEGAL HEIR HIMSELF AND NOT TO THE DECEASED PERSON. THE CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE PROPOSITION LAID DOWN IN TH E AFORESAID DECISIONS. IN VIEW OF THIS, THE VERY ISSUANCE OF NOTICE U/S 14 3(2) OF THE ACT AGAINST THE DEAD PERSON BEING VOID ABINITIO IS HEREBY QUASH ED AND THE CONSEQUENT ADDITIONS CARRIED OUT IN THE ASSESSMENT PROCEEDINGS AGAINST THE DECEASE ASSESSEE STOOD DELETED. 5. IN THE RESULT, THE PRESENT APPEAL OF THE ASSESSE E IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.09.2017. SD/- SD/- ( ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 28 TH SEPT. 2017 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR