Income Tax Officer-3(1),, Kanpur v. Shri Chhotey Lal Verma ,, Kanpur

ITA 538/LKW/2009 | misc
Pronouncement Date: 25-11-2014 | Result: Allowed

Appeal Details

RSA Number 53823714 RSA 2009
Bench Lucknow
Appeal Number ITA 538/LKW/2009
Duration Of Justice 5 year(s) 1 month(s) 10 day(s)
Appellant Income Tax Officer-3(1),, Kanpur
Respondent Shri Chhotey Lal Verma ,, Kanpur
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2014
Appeal Filed By Department
Order Result Allowed
Bench Allotted A
Tribunal Order Date 25-11-2014
Date Of Final Hearing 18-11-2014
Next Hearing Date 18-11-2014
Assessment Year misc
Appeal Filed On 15-10-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI. A. K. GARODIA ACCOUNTANT MEMBER ITA NO.538/LKW/2009 BLOCK PERIOD ENDING ON : 14.9.2002 INCOME TAX OFFICER 3(1) KANPUR V. SHRI. CHHOTEY LAL VERMA D-65 MIG BARRA KANPUR (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. O.P. MEENA CIT (DR) RESPONDENT BY: SHRI. RAKESH GARG ADVOCATE DATE OF HEARING: 18 11 2014 DATE OF PRONOUNCEMENT: 25 11 2014 O R D E R PER SUNIL KUMAR YADAV: THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A) INTER ALIA ON THE FOLLOWING GROUNDS:- 1. ON FACTS AND IN CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-1 KANPUR HAS ERRED IN LAW AND ON FACTS IN DELETING THE UNDISCLOSED INCOME OF RS.8 77 329/- ASSESSED BY THE ASSESSING OFFICER UNDER SECTION 158BD READ WITH SECTION 158BC AS AGAINST THE NIL INCOME SHOWN BY THE ASSESSEE. 2. THAT THE ORDER OF THE LD. CIT ( APPEALS)-1 KANPUR BEING ERRONEOUS IN LAW AND ON FACTS BE VACATED AND THE ORDER DATED 30.11.2006 PASSED U/S 158BD READ WITH SECTION 158BC OF THE INCOME TAX ACT 1961 BY THE ASSESSING OFFICER BE RESTORED. :- 2 -: 2. DURING THE COURSE OF HEARING IT HAS BEEN BROUGHT TO OUR NOTICE THAT THIS APPEAL WAS FILED BY THE REVENUE AGAINST THE ASSESSEE SHRI. CHHOTEY LAL VERMA. SINCE SHRI. CHHOTEY LAL VERMA HAS BEEN EXPIRED HIS LEGAL HEIR IS REQUIRED TO BE BROUGHT ON RECORD BUT TILL DATE THE REVENUE HAS NOT BROUGHT THE LEGAL HEIR ON RECORD. THEREFORE THE APPEAL OF THE REVENUE STANDS ABATED. OUR ATTENTION WAS ALSO INVITED TO THE FACT THAT BEFORE THE ASSESSING OFFICER AN APPLICATION ON 15.10.2012 ALONG WITH AN AFFIDAVIT OF DR. HARNAM SINGH THE SON OF THE ASSESSEE SHRI. CHHOTEY LAL VERMA WAS FILED INTIMATING THE ASSESSING OFFICER WITH REGARD TO THE DEATH OF SHRI. CHHOTEY LAL VERMA ON 2.9.2008. A DEATH CERTIFICATE ISSUED BY THE GOVERNMENT OF UTTAR PRADESH WAS ALSO ENCLOSED ALONG WITH THE APPLICATION. 3. THE LD. D.R. DURING THE COURSE OF HEARING INVITED OUR ATTENTION THAT THE LD. CIT(A) HAS PASSED THE ORDER AGAINST SHRI. CHHOTEY LAL VERMA VIDE ORDER DATED 10.6.2009; WHEREAS THE ASSESSEE WAS EXPIRED ON 2.9.2008. FROM THE ORDER OF THE LD. CIT(A) IT IS NOT ESTABLISHED THAT THE LD. CIT(A) WAS NEVER INFORMED WITH REGARD TO THE DEATH OF THE ASSESSEE SHRI. CHHOTEY LAL VERMA AND MORE SO NO EFFORT WAS ALSO MADE ON BEHALF OF THE ASSESSEE TO BRING THE LEGAL HEIR ON RECORD BEFORE THE LD. CIT(A) AND THE LD. CIT(A) WAS CONSTRAINED TO PASS THE ORDER AGAINST A DEAD PERSON. SINCE THE LD. CIT(A) HAS PASSED THE ORDER AGAINST A DEAD PERSON THE ORDER PASSED BY HIM IS NOT SUSTAINABLE IN THE EYES OF LAW THEREFORE IT DESERVES TO BE SET ASIDE. 4. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HAND HAS SUBMITTED THAT THE REVENUE SHOULD HAVE FILED APPEAL AGAINST THE LEGAL HEIR OF SHRI. CHHOTEY LAL VERMA THE ASSESSEE. SINCE THEY HAVE NOT FILED THE APPEAL AGAINST THE LEGAL HEIR THE APPEAL IS NOT MAINTAINABLE. WITH REGARD TO THE ORDER OF THE LD. CIT(A) PASSED AGAINST A DEAD PERSON THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT AT THE MOST THE ORDER OF THE LD. CIT(A) CAN HELD TO BE UNSUSTAINABLE IN THE EYES OF LAW AND THE MATTER MAY BE :- 3 -: REMANDED TO HIM WITH A DIRECTION TO RE-ADJUDICATE THE APPEAL AGAINST THE LEGAL HEIR OF THE ASSESSEE SHRI. CHHOTEY LAL VERMA. 5. HAVING GIVEN A THOUGHTFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND FROM A CAREFUL PERUSAL OF THE ORDERS OF THE AUTHORITIES BELOW WE FIND THAT UNDISPUTEDLY THE ASSESSEE HAS FILED AN APPEAL BEFORE THE LD. CIT(A) ON 29.12.2006. THEREAFTER THE APPEAL WAS DISPOSED OF VIDE ORDER DATED 10.6.2009 AND THE ASSESSING OFFICER WAS INFORMED WITH REGARD TO THE DEATH OF THE ASSESSEE SHRI. CHHOTEY LAL VERMA VIDE LETTER DATED 15.10.2012. WE HAVE ALSO CAREFULLY EXAMINED THE ORDER OF THE LD. CIT(A) AND WE DO NOT FIND ANYTHING WITH REGARD TO THE INTIMATION OF DEATH OF THE ASSESSEE SHRI. CHHOTEY LAL VERMA. WHEN THE APPEAL WAS FILED BY THE ASSESSEE AND THE ASSESSEE PASSED AWAY DURING THE PENDENCY OF THE APPEAL THE LEGAL HEIR HAS TO APPROACH THE AUTHORITIES WITH A REQUEST TO BRING THE LEGAL HEIR ON RECORD. IN THE ABSENCE OF THIS EFFORT THE APPEAL FILED BY THE ASSESSEE STAND ABATED AND DESERVES TO BE DISMISSED. BUT DURING THE PENDENCY OF APPEAL THE LD. CIT(A) WAS NOT INFORMED BY THE LEGAL HEIR OF THE ASSESSEE WITH REGARD TO THE DEATH OF THE ASSESSEE. THEREFORE THE LD. CIT(A) HAS PASSED AN ORDER AGAINST A DEAD PERSON. THE ASSESSING OFFICER WAS INFORMED VIDE LETTER DATED 15.10.2012 EVEN AFTER DISPOSAL OF THE APPEAL BY THE LD. CIT(A) AND FILING OF THE APPEAL BY THE REVENUE BEFORE THE TRIBUNAL AS THE REVENUE HAS FILED THE APPEAL BEFORE THE TRIBUNAL ON 20.10.2009. AS PER DEATH CERTIFICATE THE ASSESSEE WAS EXPIRED ON 2.9.2008 DURING THE PENDENCY OF APPEAL BEFORE THE LD. CIT(A) BUT NO EFFORT WAS MADE ON BEHALF OF THE ASSESSEE TO BRING THE LEGAL HEIR ON RECORD AND THE LD. CIT(A) HAS PASSED THE ORDER AGAINST A DEAD PERSON WHICH IS NOT SUSTAINABLE IN THE EYES OF LAW. THOUGH THE REVENUE HAS FILED AN APPEAL BEFORE THE TRIBUNAL AGAINST A DEAD PERSON AND NO EFFORT WAS MADE BY THEM TO INCORPORATE THE LEGAL HEIR ON RECORD BUT IN ANY CASE THE ISSUE OF VALIDITY OF THE ORDER OF THE LD. CIT(A) IS OPEN BEFORE US AND WE FIND THAT SINCE THE LD. CIT(A) HAS PASSED THE ORDER :- 4 -: AGAINST A DEAD PERSON THE ORDER OF THE LD. CIT(A) IS UNSUSTAINABLE IN THE EYES OF LAW AND WE ACCORDINGLY SET ASIDE THE SAME. ONCE THE ORDER OF THE LD. CIT(A) IS SET ASIDE THE ORDER OF THE ASSESSING OFFICER IS RESTORED. ACCORDINGLY THE APPEAL OF THE REVENUE IS DISPOSED OF. 6. IN THE RESULT APPEAL OF THE REVENUE IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 25 TH NOVEMBER 2014 JJ:1811 COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR