Smt Girija Goswami, Bhopal V. ITO5 (2), Bhopal

MA 15/Ind/2022

AI Insights

The case involves Smt. Girija Goswami, the legal heir of the late Shri Dwarka Prasad Goswami, who filed a Miscellaneous Application seeking rectification of a mistake in the Tribunal's order dated January 27, 2022. The dispute centered on the validity of a notice issued under section 148 of the Income Tax Act to the deceased assessee, which was contested as being invalid since the Income Tax Officer was aware of the assessee's death during the relevant assessment year. The Tribunal initially dismissed the ground without adequately considering the facts presented, leading to the filing of the Miscellaneous Application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 127207 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-05-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 10-07-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 148; 143(3); 142(1); 254(2)

Judgement Text

आयकर अपील य अ धकरण, इंदौर यायपीठ, इंदौर IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER MA No.15/Ind/2022 (Arising out of I.T.A. No. 306/Ind/2020) Assessment Year : 2009-10 Smt. Girija Goswami L/h of Late Shri Dwarka Prasad Goswami M-6, Apsara Complex, Indrapuri, Bhopal-26 बनाम/ Vs. Income Tax Officer 5(2), Bhopal PAN No. : AGAPG6122F (अपीलाथ /Appellant) .. ( यथ / Respondent) Appellant by : Shri Ashish Goal & Shri N. D. Patva, A.Rs. Respondent by : Shri Ashish Porwal Sr. D.R. Date of Hearing 26/05/2023 Date of Pronouncement 31.05.2023 ORDER Per Vijay Pal Rao, JM: By way of this Misc. Application of assessee is seeking rectification of mistake in the order dated 27.01.2022 of this Tribunal. MA No.15/Ind/2022 Smt. Girija Goswami – 2 - 2. Ld. AR of the assessee has submitted that the assessee raised two grounds of appeals which has been reproduced by the Tribunal in para 2 of the impugned order. While deciding ground no.1 regarding validity of the reopening of the assessment and consequential reassessment order passed by the AO the Tribunal has not considered correct facts regarding the death of the assessee already brought on record of the AO for the A.Y.2008-09 as it is evident from the order sheet entry for the assessment year 2008-09 placed at page no.26 of the paper book. Ld. AR has submitted that on 28.01.2016 in the assessment proceedings for the A.Y.2008-09 the statements of the son of the deceased assessee was recorded by the AO and the details of the legal heir of the deceased assessee were also taken on record by the AO. Therefore, this fact of the death of the assessee was very much in the knowledge of the AO and part of the assessment record for A.Y.2008-09. The AO also issued notice u/s 142(1) on 01.02.2016 to the legal heir of the deceased assessee in the preceding A.Y.2008-09 and thereafter the assessment was framed u/s 143(3) on 18.03.2016 in the name of the legal heir of the deceased assessee. However, the notice u/s 148 dated 03.03.2016 was issued by the AO in the name of the deceased assessee and therefore the notice issued on a dead person is not a valid notice and consequently initiation of the proceedings were not valid. However, this fact has not been correctly recorded by the Tribunal while deciding this issue in para 6 of the impugned order. Hence the ld. AR has submitted that there is an apparent mistake in the impugned order of the Tribunal so far as the correct facts are not considered for deciding ground no.1. 3. On the other hand, Ld. DR has submitted that the Tribunal has decided ground no.1 after considering all relevant facts as well as arguments of the parties. Therefore, the decision of the tribunal based on the relevant record and contention of the parties cannot be reviewed in the preceding u/s 254(2) of the Act. He has objected to the Misc. application filed by the assessee. MA No.15/Ind/2022 Smt. Girija Goswami – 3 - 4. Having considered the rival submissions as well as relevant material on record, at the outset, we note that the Tribunal has decided the ground no.1 in para 5 & 6 of the impugned order as under: 5. Now, the assessee came before us and she has taken ground that notice was issued to the deceased person and if a notice under S.148/147 of the Act has been issued to the deceased person and same is not sustainable in the eyes of law. 6. We have given thoughtful consideration of the argument of the assessee. As in the present case, deceased assessee did not file any income tax return, the department came to know about the cash deposit only by way of AIR information generated through the system of the department and son of the deceased has categorically admitted before his AO that wife of the deceased person is legal heir of the deceased assessee. So, in such case, we do not find any support from the documents of the assessee. Therefore, same is dismissed. 5. The finding of the tribunal is based on the facts as recorded in the para 6 that the deceased did not file any return of income and the department come about the cash deposit by way of AIR information but the main issue raised by the assessee that notice u/s 148 was issued in the name of dead person has not been considered by the Tribunal while passing the impugned order qua this issue. 6. Further prima facie we find that the AO was very well aware about death of the assessee as it was brought on record during the assessment proceedings for A.Y.2008-09. This fact has been recorded by the AO in the order sheet entry dated 28.01.2016 for A.Y. 2008-09 and the notice u/s 148 of the Act for the year under consideration was issued subsequently on 03.03.2016. Therefore, this relevant fact has not been taken into consideration by the tribunal while passing impugned order qua this issue and hence, we find that there is an apparent mistake in the impugned order of the Tribunal qua this issue as the Tribunal has not considered relevant facts available on record. MA No.15/Ind/2022 Smt. Girija Goswami – 4 - Accordingly, in the facts and circumstances of the case and in view of the above discussion, we recall the impugned order of the Tribunal qua the ground no.1 in para 6 of the impugned order for the limited purpose of deciding ground no.1 afresh. The appeal of the assessee is directed to be listed for fresh hearing and adjudication of ground no.1 on 21 st June 2023. Notice of hearing of the appeal being issued to the parties. 7. In the result, Misc. appeal filed by the assessee is allowed. Sd/- Sd/- ( B.M . BIYAN I) (VIJAY PAL RAO) ACCOUN TANT MEM BER JUDICIAL MEMBER Indore: Dated 31/05 /2023 Patel, Sr. PS आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. राज व / Revenue 2. आवेदक / Assessee 3. संबं धत आयकर आय ु &त / Concerned CIT 4. आयकर आय ु &त- अपील / CIT (A) 5. *वभागीय -त-न ध, आयकर अपील य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड4 फाइल / Guard file. By order/आदेश से, S r . P r i v a t e S e c r e t a r y I . T . A . T . , I n d o r e Order pronounced in Open Court on 31 / 05 /2023