Late Prakash Kumar Daukia, Ranchi v. ACIT,Circle-2, Ranchi

ITA 200/RAN/2019 | 2010-2011
Pronouncement Date: 26-11-2019 | Result: Allowed

Appeal Details

RSA Number 20025114 RSA 2019
Assessee PAN ABOPA7647N
Bench Ranchi
Appeal Number ITA 200/RAN/2019
Duration Of Justice 6 month(s) 27 day(s)
Appellant Late Prakash Kumar Daukia, Ranchi
Respondent ACIT,Circle-2, Ranchi
Appeal Type Income Tax Appeal
Pronouncement Date 26-11-2019
Appeal Filed By Assessee
Tags 200
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 26-11-2019
Assessment Year 2010-2011
Appeal Filed On 29-04-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH RANCHI BEFORE SHRI PRADIP KUMAR KEDIA ACCOUNTANT MEMBER& MS. MADHUMITA ROY JUDICIAL MEMBER I.T.A. NO. 200/RAN/2019 (ASSESSMENT YEAR: 2010-11) LATE PRAKASH KUMAR ADUKIA 5A EXOTIKA APARTMENT NEAR GANDHI NAGAR KNAKE ROAD RANCHI 834008 JHARKHAND VS. ACIT CIRCLE-2 RANCHI [PAN NO. ABO PA7 647 N] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI R. R. MITTAL A.R. RESPONDENT BY : SHRI NISHA SINGHMARR JCIT (D.R.) DATE OF HEARING 06.11.2019 DATE OF PRONOUNCEMENT 26 .1 1 . 2019 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 07.03.2019 PASSED BY THE COMMISSIONER OF INCO ME TAX (APPEALS) RANCHI UNDER SECTION 147/143(3) OF THE INCOME TAX ACT 1961 (HEREINAFTER REFERRED AS TO THE ACT) ARISING OUT OF THE ORDER DATED 29.12.2017 PASSED BY THE ACIT CIRCLE-2 RANCHI FOR ASSESSMENT YEAR 2010 -11. 2. THE ASSESSEE SINCE DECEASED WAS AN INDIVIDUAL ENGAGED IN THE REAL ESTATE BUSINESS AND ALSO IN TRADING OF ALUMINIUM AN D HARDWARE ITEMS FILED ITS RETURN OF INCOME ON 30.03.2011 FOR A.Y. 2010-11 AND LEFT FOR HIS HEAVENLY ABODE ON 18.06.2011. THE CASE OF THE ASSESSEE WAS REOPENED AND A NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 18.01.20 17 IN THE NAME OF ITA NO.200/RAN/2019 LATE PRAKASH KUMAR ADUKIA VS. ACIT ASST.YEAR 2010-11 - 2 - ASSESSEE WHICH WAS SERVED UPON THE LEGAL HEIRS OF T HE ASSESSEE. THE REASSESSMENT WAS FINALIZED ON 29.11.2017 AGAINST TH E SAID DECEASED. IT IS RELEVANT TO MENTION THAT NO RETURN WAS FILED FROM A .Y. 2012-13 ONWARDS. THE CASE OF THE ASSESSEE BEFORE US IS THIS THAT THE DEPARTMENT WAS DULY INFORMED THAT THE ASSESSEE HAS DIED ON 18.06.2011. A COPY OF THE DEATH CERTIFICATE WAS DULY ENDORSED TO THE REVENUE BY THE LEGAL HEIR OF THE ASSESSEE BUT THE ASSESSMENT ORDER WAS FINALIZED AG AINST THE SAID DECEASED WHICH IS NOT PERMISSIBLE IN THE EYE OF LAW AND HENC E THE ASSESSMENT ORDER IS LIABLE TO BE SET-ASIDE AS THE CASE MADE OUT BY THE LEGAL HEIR OF THE ASSESSEE. FURTHER THAT THE LD. ADVOCATE APPEARING FOR THE AS SESSEE RELIED UPON THE JUDGMENT PASSED BY THE HONBLE BOMBAY HIGH COURT WH ERE IT HAS BEEN HELD THAT NOTICE UNDER SECTION 148 CANNOT BE ISSUED AGAI NST THE DEAD PERSON A COPY WHEREOF HAS ALSO BEEN SUBMITTED BEFORE US. THE LD. DR HOWEVER HAS FAILED TO CONTROVERT SUCH SUBMISSIONS MADE BY THE LD. AR. 3. HEARD THE PARTIES PERUSED THE RELEVANT MATERIAL S AVAILABLE ON RECORDS. AS IT APPEARS FROM THE RECORDS THAT THE ASSESSMENT ORDER STARTS WITH THE NOTING OF THE FACT OF DEATH OF THE ASSESSEE ON 18.06.2011. FURTHER THAT THE NOTICE DATED 18.01.2017 ISSUED UNDER THE SIGNAT URE OF THE DCIT RANCHI ISSUED IN THE NAME OF THE DECEASED PRAKASH KUMAR AD UKIA TOO. THEREFORE THIS IS AN UNDISPUTED FACT THAT THE RE-OPENING OF A SSESSMENT WAS ISSUED ON A DEAD PERSON WHICH IS VOID AB INITIO AND BAD IN THE EYE OF LAW. WE HAVE FURTHER CAREFULLY CONSIDERED THE JUDGMENT PASSED BY THE HONBLE BOMBAY HIGH COURT. WHILE DEALING WITH THIS IDENTICAL ISSU E THE HONBLE COURT OBSERVED AS FOLLOWS:- ITA NO.200/RAN/2019 LATE PRAKASH KUMAR ADUKIA VS. ACIT ASST.YEAR 2010-11 - 3 - 2. THE FACTS ARE NOT SERIOUSLY IN DISPUTE. THE PET ITIONER HAD PRODUCED THE DEATH CERTIFICATE OF SHRI SHYAMSUNDAR DHUMATKAR BEFORE THE INCOME TAX AUTHORITIES INDICATING THAT HE DIED ON 14/10/2016. THUS THE IMPUGNED NOTICE OF REOPENING OF ASSESSMENT WAS ISSUED ON A DEAD PER SON. THERE ARE SEVERAL JUDGMENTS OF DIFFERENT HIGH COURTS HOLDING THAT THE NOTICE OR REOPENING OF ASSESSMENT IS INVALID IN LAW. A REFERENCE IN THIS R ESPECT CAN BE MADE TO A DECISION OF GUJARAT HIGH COURT IN THE CASE OF CHANDRESHBHAI JAYANTIBHAI PATEL VS THE INCOME TAX OFFICER (SPECIAL CIVIL APPL ICATION NO.15172 OF 2018 DECIDED ON 10/12/2018). AS ALSO THE DECISION OF MADRAS HIGH COURT IN THE CASE OF ALAMELU VEERAPPAN VS. INCOME TAX OFFICER NON-CORPORATE WARD-2(2) CHENNAI REPORTED IN (2018) 257 TAXMAN 7 2 (MADRAS). IT IS NOT NECESSARY TO REFER TO ALL THE JUDGMENTS ON THE POIN T. SUFFICE IT TO SAY AS PER THE SETTLED LAW NOTICE FOR REOPENING OF ASSESSMENT AGA INST A DEAD PERSON IS INVALID. 3. IN THE RESULT THE IMPUGNED NOTICE IS SET ASIDE. PETITION IS DISPOSED OF ACCORDINGLY. CONSEQUENTIALLY THE ORDER OF ASSESSMENT DATED 31/12/2018 ALSO STANDS ANNULLED. 4. WE THEREFORE IN THE ABSENCE OF ANY CHANGED CIR CUMSTANCES DO NOT HESITATE TO HOLD THAT THE RE-ASSESSMENT PROCEEDING ISSUED BY THE REVENUE IN THE NAME OF A DECEASED ASSESSEE IN THE CASE IN HAND NON-EST IN THE EYE OF LAW AND HENCE QUASHED. ASSESSEES APPEAL IS THUS A LLOWED. 5. IN THE RESULT THE ASSESSEES APPEAL IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 26/11/2019 SD/- SD/- (PRADIP KUMAR KEDIA) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 26/11/2019 TANMAY SR. PS TRUE COPY ITA NO.200/RAN/2019 LATE PRAKASH KUMAR ADUKIA VS. ACIT ASST.YEAR 2010-11 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)- 5. ! ' #$%% / DR ITAT RANCHI 6. &' () / GUARD FILE. / BY ORDER / (DY./ASSTT. REGISTRAR) ! #$ / ITAT RANCHI 1. DATE OF DICTATION 19.11.2019 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20 .11.2019 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 21.11.2019 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT .11.2019 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S .11.2019 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27.11.2019 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER