ITO, New Delhi v. Sh Sumant Lal Bhattacharya, New Delhi

ITA 429/DEL/2012 | 2007-2008
Pronouncement Date: 29-03-2012 | Result: Dismissed

Appeal Details

RSA Number 42920114 RSA 2012
Assessee PAN ADSPB2443F
Bench Delhi
Appeal Number ITA 429/DEL/2012
Duration Of Justice 2 month(s) 1 day(s)
Appellant ITO, New Delhi
Respondent Sh Sumant Lal Bhattacharya, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 29-03-2012
Appeal Filed By Department
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 29-03-2012
Assessment Year 2007-2008
Appeal Filed On 27-01-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES: G NEW DELHI BEFORE SHRI S.V.MEHROTRA ACCOUNTANT MEMBER AND SMT. DIVA SINGH JUDICIAL MEMBER ITA NOS: 428 & 429/DEL/2012 A.Y. : 2005-2006 ITO. WARD 47(1) VS. SUMANT LAL BHATTACHARYA ROOM NO.425 4 TH FLOOR THROUGH L/H SEEMA BHATTACHARYA MAYUR BHAVAN BB 7 FF G.K. II NEW DELHI NEW DELHI PAN: ADSPB 2443F (APPELLANT) (RESPONDE NT) APPELLANT BY : SHRI S.MOHANTY D.R. RESPONDENT BY : NONE O R D E R PER DIVA SINGH JUDICIAL MEMBER THESE TWO APPEALS ARE FILED BY THE REVENUE AGAINST TWO SEPARATE ORDERS DATED 9.11.2011 AND 24.11.2011 OF CIT(A)-XX X NEW DELHI PERTAINING TO A.Y. 2005-2006 ON THE FOLLOWING GROUN DS. ITA 428/DEL/2012 : ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LDCIT(A) HAS ERRED IN: I. DECLARING THE ASSESSMENT ORDER PASSED BY THE A.O . ON DEAD PERSON AS VOID AB INITIO AND THEREFORE QUASHIN G THE SAME ;WITHOUT CONSIDERING THE FACT THAT NEITHER AT THE TIME OF ISSUE OF NOTICE U/S 148 NOR DURING THE ASSESSMENT PROCEEDINGS THE INFORMATION OF DEATH OF THE ASSESS EE WAS AVAILABLE ON THE RECORDS OF THE A.O. II) DELETING THE ADDITION OF RS.19 78 200/- ON ACCO UNT OF UNDISCLOSED SHORT TERM CAPITAL GAIN ON SALE OF SHAR ES IGNORING THE FACT THAT THE AO RIGHTLY MADE THE ADDI TION ON ITA 428 & 429/DEL/12 PAGE 2 OF 5 A.Y. 2005-06 SUMAT LAL BHATTACHARYA L/H: SEEMA BHATTACHARYA SALE OF BONUS SHARES DONE WITHIN ONE YEAR AS INDICA TED IN THE ASSESSMENT ORDER. III) THE APPELLANT CRAVES THE RIGHT TO ALTER AMEND ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. ITA 429/DEL/12: I) DELETING THE PENALTY U/S 271(1)(C ) AMOUNTING T O RS. 6 65 862/- IMPOSED BY THE A.O. FOR CONCEALING PARTI CULARS OF INCOME ON ACCOUNT OF UNDISCLOSED SHORT TERM CAPITAL GAIN ON SALE OF SHARES. II) NOT CONSIDERING THE FACTS THAT THE TAX SOUGHT T O BE EVADED FOR IMPOSING PENALTY IN THE PRESENT CASE WAS RIGHT CALCULATED BY THE A.O. AS PER THE EXPLANATION 4 TO THE SECTION 271(1)(C ) OF THE I.T.ACT 1961. III) THE APPELLANT CRAVES THE RIGHT TO ALTER AMEND ADD OR SUBSTITUTE THE GROUNDS OF APPEAL. 2. NO ONE WAS PRESENT ON BEHALF OF THE ASSESSEE. H OWEVER ON PERUSAL OF RECORD IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX PARTE. THE RELEVANT FACTS OF THE CASE AR E THAT THE ASSESSING OFFICER PASSED THE ORDER U/S 144 OF THE I.T.ACT 19 61. IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY THE APPEAL WAS FILED BY LEGAL HEIR SMT.SEEMA BHATTACHARYA AS IS BORNE OUT FROM PARA 1 OF THE IMPUGNED ORDER. THE APPEAL WAS FILED BY THE LEGAL HEIR OF THE APPEL LANT ON 15.7.2010 AGAINST ASSESSMENT ORDER DT. 24.12.2009 PASSED U/S 147/144 OF THE I.T.ACT 1961 BY ITO WARD 47(1) NEW DELHI FOR A.Y . 2005-06. IN RESPONSE TO NOTICE U/S 250 OF THE ACT SHRI TARUN M ITTAL CA OF THE APPELLANT APPEARED AND FILED WRITTEN SUBMISSION ALO NG WITH PAPER BOOK AND THE CASE WAS DISCUSSED WITH HIM. ITA 428 & 429/DEL/12 PAGE 3 OF 5 A.Y. 2005-06 SUMAT LAL BHATTACHARYA L/H: SEEMA BHATTACHARYA 2.1. TAKING INTO CONSIDERATION THE SUBMISSIONS ADVA NCED ON BEHALF OF THE LEGAL HEIR OF THE ASSESSEE WHICH ARE REPRODUCED IN THE IMPUGNED ORDER NAMELY THAT THE A.O. HAS PASSED AN ASSESSMENT ON A DEAD PERSON AS ON THE DATE OF INITIATION OF PROCEEDINGS AS WELL AS AT THE TIME OF PASSING THE ORDER THE ASSESSEE HAD ALREADY DIED I.E . ON 10.3.2008 MUCH BEFORE PASSING THE ASSESSMENT ORDER DT. 24.12.2009. RELIANCE WAS ALSO PLACED UPON THE RETURN OF INCOME FILED BY THE ASSES SS FOR IMPUGNED A.Y. ALONG WITH DEATH CERTIFICATE WHICH AS PER THE IMPU GNED ORDER WAS FORWARDED TO THE A.O. WHO VIDE HIS REMAND REPORT DT . 27.11.2011 OFFERED NO COMMENTS IN REGARD TO THE CONTENTIONS ON BEHALF OF THE LEGAL HEIR OF THE ASSESSEE. ACCORDINGLY THE FOLLOWING ORDER WAS PASSED. THE A.O. HAD COMPLETED THE ASSESSMENT ON A DEAD PE RSON WHICH FACT REMAINED UNCONTROVERTED. FURTHERMORE THE A.O. HAS FAILED TO BROUGHT ON RECORD ANY EVIDENCE OF SERVICE OF ANY NO TICE DURING THE ASSESSMENT PROCEEDINGS ON THE APPELLANT OR HIS LEGA L HEIR HAD THERE BEING ANY SERIOUS ATTEMPT MADE FOR PROPER AND EFFECTIVE SERVICE OF THE NOTICES ISSUED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE FACT OF DEATH OF THE APPELLANT WO ULD HAVE COME TO SURFACE. IN SUCH CIRCUMSTANCES THE ASSESSMENT ORD ER PASSED ON DEAD PERSON IS VOID AB INITIO AND THEREFORE IS HERE BY QUASHED. ACCORDINGLY THIS GROUND OF APPEAL IS ALLOWED IN FAV OUR OF APPELLANT. SINCE WHILE DECIDING THE GROUND OF APPEAL NO.1 IT HAS BEEN HELD THAT THE ORDER PASSED IS VOID AB INITIO AND IS ORDE RED TO BE QUASHED REMAINING GROUNDS IN THIS APPEAL ON OTHER ADDITIONS ARE OF ACADEMIC IN NATURE AND DESERVES NO DISCUSSION. HOWEVER TO AVOID THE MULTIPLICITY OF THE PROCEEDINGS THESE GR OUNDS OF APPEALS ARE ALSO DECIDED ON MERITS ALSO. 2.2. LD.SR.D.R. ADDRESSING GROUND NO.1 RELIED UPON THE ASSESSMENT ORDER. HOWEVER NO ARGUMENTS WERE ADVANCED TO REBUT THE FINDING OF THE CIT(A) THAT THE PROCEEDINGS WERE INITIATED AGAINST A DEAD PERSON. ITA 428 & 429/DEL/12 PAGE 4 OF 5 A.Y. 2005-06 SUMAT LAL BHATTACHARYA L/H: SEEMA BHATTACHARYA 2.3. IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE AS THEY STAND WE FIND NO INFIRMITY IN THE ORDER PASSED BY THE CIT (A) ON THE SAID ISSUE AND THE ACTION OF CIT(A) IN QUASHING THE PROCEEDING S IS UPHELD FOR WANT OF REBUTTAL ON FACTS AND LAW. NO OTHER ARGUMENT W AS ADVANCED BY THE REVENUE. 3. IN THE RESULT THE DEPARTMENTAL APPEAL ITA 428/DE L/2012 IS DISMISSED. 4. ITA 429/DEL/12 MOVED BY THE DEPARTMENT IS AGAINS T THE ACTION OF THE CIT(A) WHO AS PER PARA 4 AND 5 HAS QUASHED THE PROCEEDINGS AS THE ADDITION IN THE QUANTUM STOOD QUASHED. ACCORDINGLY IN THE AFORE MENTIONED PECULIAR FACTS AND CIRCUMSTANCES WE FIND NO INFIRMITY IN THE ORDER OF THE CIT(A) IN QUASHING THE PENALTY PROCEED INGS AS IT IS A SETTLED LEGAL POSITION THAT WHEN THE QUANTUM PROCEEDINGS HA VE BEEN QUASHED THE PENALTY ORDER DOES NOT SURVIVE. ACCORDINGLY AF TER HEARING THE LD.SR.D.R. ITA 429/DEL/12 OF THE DEPARTMENT IS ALSO DISMISSED. 5. IN THE RESULT BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED. THE SAID ORDER WAS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING I.E. ON 29 TH MARCH 2012. SD/- SD/- (S.V.MEHROTRA) (DIVA SINGH) ACCOUNTNAT MEMBER JUDICIAL MEMBE R DATED: 29 TH MARCH 2012 *MANGA ITA 428 & 429/DEL/12 PAGE 5 OF 5 A.Y. 2005-06 SUMAT LAL BHATTACHARYA L/H: SEEMA BHATTACHARYA COPY OF THE ORDER FORWARDED TO: 1. APPELLANT; 2.RESPONDENT; 3.CIT; 4.CIT (A); 5.DR 6.GUARD FILE BY ORDER