Income Tax Officer-2(1), Kanpur V. Smt. Alka Kanodia, Kanpur

MA 15/LKW/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4607 (ITAT-LUCKNOW)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-04-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 14-11-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARISH GIDWANI

Judgement Text

M.A. No.15/Lkw/2021 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘SMC’, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER M.A. No.15/Lkw/2021 (Arising out of I.T.A. No.118/Lkw/2020) Assessment Year:2015-16 Income Tax Officer-2(1), Kanpur. Vs. Smt. Alka Kanodia, 117/K/13, Gutaiya, Co M. P. Udyog, Kanpur. PAN:ABYPK 1537F (Appellant) (Respondent) O R D E R This Misc. Application has been filed by the Revenue against the order of the Tribunal dated 07/07/2021 passed in I.T.A. No.118/Lkw/2020. 2. Learned D. R., at the outset, submitted that the Tribunal had dismissed the appeal of the Revenue by observing that the Department had filed appeal before the Tribunal on 07/02/2020 on which date the assessee was not alive as she had passed on 14/12/2018. It was submitted that while deciding the appeal against the Revenue, the Tribunal had placed reliance on the judgments of various appellate forums, the ratio of which was not applicable to the present case as in the present case the Appellant by Shri P. K. Kapoor, C. A. Respondent by Shri Harish Gidwani, D.R. Date of hearing 08/04/2022 Date of pronouncement 26/04/2022 M.A. No.15/Lkw/2021 2 assessment proceedings as well as appellate proceedings had become final during the life time of the deceased assessee and the fact of assessee’s demise was not brought to the notice of the Department and no legitimate documents or cogent evidence was filed by any of the legal heirs of the assessee to confirm the death of assessee before filing of the instant appeal and it is only during the course of appellate proceedings before the Tribunal the AR of the assessee has submitted that she had passed away on 14/12/2018 and the present appeal has been filed on the dead person. Learned D. R. submitted that during arguments Learned counsel for the assessee concealed the fact that Shri Pradeep Kumar Kanodia, who is the husband of the deceased assessee had also moved an application under Vivad se Vishwas Scheme, 2020 during the pendency of the appeal and in that application he has mentioned himself to be the representative of the deceased assessee and in this respect my attention was invited to application in Form-1 & Form-2 moved by Shri Pradeep Kumar Kanodia, under Vivad se Vishwas Scheme. In view of the above facts and circumstances, Learned D. R. submitted that a mistake had happened in the order of the Tribunal which may be recalled and readjudicated. 3. Learned counsel for the assessee, on the other hand, submitted that the Department, in its application, has itself admitted that they are requesting the Tribunal to readjudicate the appeal which is not permissible as per the provisions of the Act as the Tribunal is not empowered to readjudicate the issue. The Misc. Application can only be filed if there is a mistake in the order of the Tribunal which the D. R. has not been able to point out. As regards the arguments of Learned D. R. that assessee should have informed about the death of the assessee, Learned counsel for the assessee submitted that there is no provision in the Act which required the assessee to intimate to the Department about the death of a person. It was M.A. No.15/Lkw/2021 3 submitted that the appeal filed by the assessee was allowed by the learned CIT(A) and therefore, the assessee had nothing to do with the Department whereas the Department, after one and half year of the order of learned CIT(A), decided to file the appeal and therefore, there was no occasion available to the assessee to intimate about the death of the assessee and the assessee is entitled to take a ground that the appeal has been filed on a deceased person and Tribunal has rightly relied on the order of Hon'ble Delhi High Court in the case of Savita Kapila vs. ACIT [2020] 118 Taxmann.com 46 (Delhi). Hon'ble Delhi High Court has clearly held that there is no statutory requirement to intimate to Department the death of the assessee. In view of the above, it was submitted that the Misc. Application of the Revenue may be dismissed. 4. I have heard the rival parties and have gone through the material placed on record. I find that it is an undisputed fact that the assessee died on 14/12/2018 as per death certificate issued by South Delhi Municipal Corporation and learned CIT(A) had allowed relief to the assessee vide order dated 19/11/2018 on which date the assessee was alive. However, against the order of learned CIT(A), the Department filed appeal before the Tribunal on 07/02/2020 on which date the assessee was not alive and, therefore, the Department had filed appeal against a dead person which is not maintainable in the law. The Tribunal, while dismissing the appeal of the Revenue, had rightly placed reliance on the judgment of Hon'ble Delhi High Court in the case of Savita Kapila vs. ACIT [2020] 118 Taxmann.com 46 (Delhi). The argument of the Revenue that the assessee should have informed about the factum of death of the assessee has no force in view of the fact that Hon'ble Delhi High Court had held that in the absence of statutory provision, a duty cannot be cast upon the legal representative to intimate the factum of death of an assessee to the Income Tax Department. M.A. No.15/Lkw/2021 4 Therefore, there is no mistake apparent from the face of record and therefore, the Misc. Application filed by the Revenue stands dismissed. 5. In the result, the Misc. Application of the Revenue is dismissed. (Order pronounced in the open court on 26/04/2022) Sd/. ( T. S. KAPOOR ) Accountant Member Dated:26/04/2022 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow