ITO 18(1)(3), V. EXECUTORS OF THE ESTATE OF LATE SH. J.K S NOCHOLSON,

MA 217/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3817 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-06-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 31-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES I : MUMBAI BEFORE SHRI D.MANMOHAN, HONBLE VICE PRESIDENT AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER M.A. NO. 217/MUM/2010 ARISING OUT OF ITA. NO. 9577/MUM/2004 - ASSESSMENT YEAR 2001-2002 I.T.O. WARD 18 (1) (3) ROOM NO. 106, PIRAMAL CHAMBERS, PAREL, MUMBAI 400 012 VS. LATE SHRI JKS.NICHOLSON, PROP OF M/S. BREUL & CO. WESTMORE, 69, SIR, POCHKHANAWALA RD, WORLI, MUMBAI 025. PAN AAAPN-7259-E (APPLICANT) (RESPONDENT) FOR APPLICANT : SHRI S.M. KESHKAMAT (DR) FOR RESPONDENT : -NONE- ORDER PER SHRI D. MANMOHAN, V.P. 1. BY COMBINED ORDER DATED 24 TH SEPTEMBER, 2009 CROSS- APPEALS IN THE NAME OF LATE SHRI JKS.NICHOLSON WERE DISMISSED BY OBSERVING AS UNDER : 2. AS COULD BE NOTICED FROM THE ORDER PASSED BY TH E LEARNED CIT (A), THE NAME OF THE ASSESSEE IS SHRI J KS. NICHOLSON, AND HE EXPIRED SUBSEQUENT TO THE COMPLETION OF THE ASSESSMENT AND THUS THE ASSESSEE S NAME WAS MENTIONED AS LATE SHRI JSK. NICHOLSON IN THE APPELLATE ORDER. IF PARTIES ARE AGGRIEVED AGAIN ST THE SAID ORDER, NECESSARILY THE LEGAL REPRESENTATIV ES HAS TO BE BROUGHT ON RECORD. IT IS NOTICED THAT IN THE 2 DEPARTMENTAL APPEAL THE CAUSE TITLE INDICATES THE NAME OF THE RESPONDENT AS LATE SHRI JKS. NICHOLSON WITHOUT MENTIONING THE NAME OF AUTHORISED REPRESENTATIVE/LEGAL REPRESENTATIVE, IF ANY. SIMIL ARLY IN THE APPEAL FILED BY THE ASSESSEE, THE APPELLANT IS SHOWN AS EXECUTORS OF LATE SHRI JKS. NICHOLSON WHEREAS IN THE VERIFICATION COLUMN THE NAME OF THE EXECUTOR/L.R., DATE OF VERIFICATION ETC., WERE KEPT BLANK. THEREFORE, IT IS DIFFICULT TO NOTE AS TO WHE THER THE APPEAL IS A VALID APPEAL AND WHETHER IT WAS FIL ED BY AN AUTHORIZED/LEGAL REPRESENTATIVE. THOUGH THE APPEALS WERE FILED IN THE YEAR 2004/2005, THE CORRE CT NAME OF THE LEGAL REPRESENTATIVES WERE NOT BROUGHT ON RECORD. CORRECT ADDRESS OF THE ASSESSEE IS ALSO NOT MENTIONED EVEN IN THE APPEAL FILED BY THE ASSESSEE. COLUMN NO. 10 IN FORM 36 GIVES ADDRESS OF THE ASSESSEE AS FOLLOWS : LATE SHRI JKS.NICHOLSON, PROP OF M/S. BREUL & CO. WESTMORE, 69, SIR, POCHKHANAWALA RD, WORLI, MUMBAI 025. NOTICE SENT TO THE ASSESSEE AT THE ADDRESS GIVEN IN FORM 36 ARE RETURNED UN-SERVED. UNDER THESE CIRCUMSTANCES, THE APPEAL FILED BY THE ASSESSEE AS WELL AS THE REVENUE ARE DISMISSED AS UN-ADMITTED BEING DEFECTIVE. 3 2. AGGRIEVED BY THE DISMISSAL OF THE APPEAL FILED BY THE REVENUE, THE APPLICANT MOVED AN APPLICATION SEEKING FOR RECONSIDERATION OF THE MATTER AFRESH FOR THE FOLLOWING REASONS : IN THIS CASE THE RETURN OF INCOME WAS FILED IN THE NAME OF THE ASSESSEE SHRI JKS. NICHOLSON FOR THE SAID ASSESSMENT YEAR ON 23-10-2001 WHICH WAS DULY VERIFIED AND SIGNED BY THE ASSESSEE HIMSELF. THE ASSESSEE EXPIRED ON 30-10-2001, AS HE HAS BEEN MENTIONED IN THE ASSESSMENT ORDER PASSED U/S. 143 (3) OF THE I.T. ACT. THE ASSESSMENT PROCEEDINGS WER E ATTENDED BY M/S. DR MEHTA & ASSOCIATES CAS WHO WERE APPOINTED BY THE EXECUTORS OF THE ESTATE OF TH E LATE ASSESSEE IE SHRI KALWAN KALYANIWALS AND SHRI CYRUS GUZDER. THESE FACTS ARE A MATTER OF RECORD. HENCE THE FACT THAT THE ASSESSMENT HAS BEEN COMPLETED BY BRINGING IN THE EXECUTORS OF THE ESTAT E OF THE DECEASED ASSESSEE IS A MATTER OF RECORD. IT IS HOWEVER SUBMITTED THAT ALTHOUGH THE ASSESSMEN T PROCEEDINGS WERE CONDUCTED ON THE EXECUTORS OF THE ESTATE OF THE ASSESSEE, WHILE PASSING THE ORDER U/S . 143 (3) OF THE ACT, INADVERTENTLY, THE NAME OF THE ASSESSEE HAS BEEN MENTIONED IN THE ORDER, INSTEAD O F THE NAME OF THE EXECUTOR OF THE ESTATE OF THE LATE ASSESSEE. THE APPEAL FILED BEFORE THE CIT(A) AGAINST THE ORDE R OF THE ASSESSING OFFICER WAS FILED BY THE EXECUTORS OF THE ESTATE AS IS EVIDENT FROM THE FORM NO. 35 FILED BY 4 THEM, HOWEVER THE APPEAL ORDER WAS PASSED IN THE NAME OF THE LATE SHRI JKS NICHOLSON. THE APPEAL FILED AGAINST THIS BY THE REVENUE IN THE ITAT HAD ALSO INADVERTENTLY MENTIONED THE NAME OF THE ASSESSEE AS LATE SHRI JKS NICHOLSON. THE FACT T HAT IN THE EVENT OF THE DEATH OF THE ASSESSEE, THE EXECUTORS OF THE ESTATE OF THE ASSESSEE WERE BROUGH T ON RECORD DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS ITSELF IS EVIDENT FROM THE RECORDS. IT IS THEREFORE SUBMITTED THAT THE APPEAL OF THE REVENUE MAY KINDLY BE CONSIDERED AFRESH AS HAVING BEEN FILE D IN THE NAME OF THE EXECUTORS OF THE ESTATE OF THE ASSESSEE, AND DECIDED ON MERITS. 3. THOUGH NOTICE WAS SENT TO THE EXECUTORS OF THE ESTATE OF LATE SHRI JKS NICHOLSON, SAME WAS RETURNED UNSERVED WITH THE POSTAL REMARK LEFT. THEREFORE, NOTICE WAS GOT SERVED THROUGH TH E ASSESSING OFFICER. HOWEVER, NONE APPEARED ON THE DATE FIXED FOR HEARIN G OF THE MISCELLANEOUS APPLICATION. WE THEREFORE, DISPOSE OF THE APPLICATION EXPARTE, QUA THE ASSESSEE. 4. WE HAVE HEARD THE LEARNED DR AND CAREFULLY PERU SED THE RECORD. ADMITTEDLY SHRI JKS. NICHOLSON EXPIRED AFTE R THE DATE OF FILING THE RETURN OF INCOME, IN RESPECT OF ASSESSMENT YEAR 200 1-2002. SHRI KAIWAN KALYANIWALA AND SHRI CYRUS GUZDER ARE THE EXECUTORS OF LATE ASSESSEE. THOUGH THE SAME WAS NOTED IN THE BODY OF THE ASSESS MENT ORDER, THEY WERE NOT SPECIFICALLY MENTIONED AS EXECUTORS/LEGAL REPRESENTATIVES OF THE ASSESSEE. ON AN APPEAL FILED, LEARNED CIT(A) DISPOS ED OF THE SAME WITHOUT SPECIFICALLY MENTIONING THAT THE APPEAL WAS PREFERR ED BY THE EXECUTORS. 5 AGGRIEVED BY THE ORDER PASSED BY THE LEARNED CIT(A) , REVENUE AS WELL AS ASSESSEE PREFERRED APPEALS. NOTICING CERTAIN DEFECT S IN THE APPEALS, WE THEREFORE DISMISSED BOTH THE APPEALS AS UNADMITTED. SINCE THE DECISION WAS RENDERED TAKING INTO CONSIDERATION OF OVER ALL FACTS AND CIRCUMSTANCES OF THE CASE, IT CANNOT BE SAID THAT T HERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE APP ELLATE TRIBUNAL AND THEREFORE, WE REJECT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. 5. PRONOUNCED ACCORDINGLY IN THE OPEN COURT. SD/- SD/- (RAJENDRA SINGH) (D.MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DT. 24 TH JUNE, 2010 VBP/- COPY TO 1. I.T.O. WARD 18 (1) (3), ROOM NO. 106, PIRAMAL CH AMBERS, PAREL, MUMBAI 400 012 2. LATE SHRI JKS.NICHOLSON, PROP OF M/S. BREUL & CO . WESTMORE, 69, SIR, POCHKHANAWALA RD, WORLI, MUMBAI 025. PAN AAAPN-7259-E 3. CIT (A) XVIII, MUMBAI 5 CIT, M.C.-XVIII, MUMBAI. 6. D.R. I BENCH, MUMBAI. 7. GUARD FILE. (TRUE COPY) BY ORDER ASST. REGISTRAR, ITAT, MUMBAI BENCHES MUMBAI.