ITO, New Delhi v. Smt. Savita, Gurgaon

ITA 577/DEL/2010 | 2005-2006
Pronouncement Date: 31-03-2011 | Result: Allowed

Appeal Details

RSA Number 57720114 RSA 2010
Bench Delhi
Appeal Number ITA 577/DEL/2010
Duration Of Justice 1 year(s) 1 month(s) 25 day(s)
Appellant ITO, New Delhi
Respondent Smt. Savita, Gurgaon
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Department
Order Result Allowed
Bench Allotted G
Tribunal Order Date 31-03-2011
Date Of Final Hearing 25-03-2011
Next Hearing Date 25-03-2011
Assessment Year 2005-2006
Appeal Filed On 05-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G DELHI) BEFORE SHRI I.P. BANSAL AND SHRI SHAMIM YAHYA ITA NO. 577(DEL)2010 ASSESSMENT YEAR: 2005-06 INCOME TAX OFFICER SMT. SAVITA L/H LATE SH. OMBIR SINGH WARD 5(3) NEW DELHI. V. DLF CITY PHASE I GURGAON HARYANA. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI GAJANAND MEENA CIT/DR RESPONDENT BY: NONE ORDER PER SHAMIM YAHYA A.M. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) DATED 25.11.200 9 AND PERTAINS TO ASSESSMENT YEAR 2005-06. 2. THE ISSUE RAISED IS THAT THE COMMISSIONER OF INC OME TAX(APPEALS) HAS ERRED IN ANNULLING THE ORDER PASSED BY THE ASSE SSING OFFICER UNDER SECTIONS 143(3)/147 OF THE I.T. ACT WITHOUT GOING I NTO THE MERITS OF THE CASE. 3. IN THIS CASE THE ASSESSMENT ORDER WAS PASSED BY THE AO UNDER SECTIONS 147/143(3) OF THE I.T. ACT. THE AO MADE ASSESSMEN T BY MAKING VARIOUS ADDITIONS AND THUS COMPUTING THE TAXABLE INCOME AT ` 2 65 21 676/-. IN THE ITA 577(DEL)2010 2 ASSESSMENT ORDER THE AO INTER ALIA NOTED THAT IN RESPONSE TO VARIOUS QUERIES AND NOTICES ISSUED CHARTERED ACCOUNTANTS HAVE ATT ENDED THE PROCEEDINGS ON BEHALF OF THE ASSESSEE. HE FURTHER NOTED THAT IT MAY BE STATED HERE THAT UNFORTUNATELY THE ASSESSEE WAS SHOT DEAD ON 6.10. 2008. DEATH CERTIFICATE HAS BEEN FILED BY HIS WIFE WHEN THE ASSESSMENT PRO CEEDINGS WERE MIDWAY. DESPITE NOTINGS THERETO AO PROCEEDED TO MAKE THE AS SESSMENT IN THE NAME OF THE DECEASED ASSESSEE. UPON ASSESSEES APPEAL T HE LD. CIT(A) OPINED THAT THE ASSESSMENT ORDER WAS LIABLE TO BE ANNULLED INAS MUCH AS ASSESSMENT HAS BEEN MADE ON A DEAD PERSON. THE LD. CIT(A) ELABOR ATELY CONSIDERED THE ISSUE ON THE BASIS OF VARIOUS CASE LAWS AND HELD AS UNDER:- 4.2 WHEN THE FACTS OF THE PRESENT CASE ARE ANA LYZED IN THE LIGHT OF THE ABOVE JUDGMENTS IT BECOMES VERY CLEAR THAT THE ASSESSMENT IN QUESTION CANNOT BE SUSTAINED FOR THE SIMPLE REASON THAT NONE OF THE LEGAL HEIRS INCLUDING SMT. NEEL KAMAL SECOND WIFE OF DECEASED ASSESSEE WAS SERVED WITH A NOTICE OF HEARING BY TH E LD. AO BEFORE COMPLETING THE ASSESSMENT. IT IS A SETTLED POSITIO N OF LAW THAT ON THE DEATH OF A PERSON HIS LEGAL ENTITY CEASED TO EXIST AND NO ASSESSMENT ORDER CAN BE PASSED AGAINST SUCH DEAD PERSON AND IN ANY CASE IF THE ASSESSMENT IS PASSED AGAINST SUCH A DEAD PERSON THA T WOULD BE ONLY NULL AND VOID. IT IS ALSO A SETTLED POSITION OF LA W THAT IF THERE ARE MORE THAN ONE LEGAL REPRESENTATIVE OF THE DECEASED PERSO N THAN ALL MUST BE IMPLEADED TO MAKE THE REPRESENTATION OF THE ESTATE COMPLETE. THE FACTUAL POSITION AS EXTRACTED HEREIN BEFORE IN PARA 4 CLEARLY REVEALS THAT THE AO DID NOT MAKE ANY ATTEMPT TO ISSUE FRESH NOTICES TO ANY OF THE LEGAL HEIRS IN SPITE OF THE FACT THAT A WRITTEN COMMUNICATION TO THE EFFECT THAT THE ASSESSEE SHRI OMBIR SINGH HAD DIED ON 6.10.2008. 4.3 I ALSO FIND CONSIDERABLE FORCE IN THE ARGUMENT OF THE LD. COUNSEL THAT EVEN THE PROVISIONS OF SECTION 292 BB ALSO CAN T BE PRESSED INTO ITA 577(DEL)2010 3 SERVICE IN THE PRESENT CIRCUMSTANCES AS THOSE PROV ISIONS OPERATE IN ENTIRELY DIFFERENT FIELDS. 4.4 IN VIEW OF THE ABOVE FACTUAL AND LEGAL POSITIO N I AM OF THE CONSIDERED VIEW THAT THE ASSESSMENT MADE ON A DEAD PERSON IS A NULLITY AND ACCORDINGLY THE ORDER OF ASSESSMENT MA DE BY THE LD. AO ON 30.12.2008 IS BEING ANNULLED. 4. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE ARE OF THE CONSIDERED OPINION THAT THE MATTER CAN BE DISPOSED OF AFTER GOING THROUGH T HE RECORD AND HEARING THE LD. DR. THE LD. DR SUBMITTED THAT THE ASSESSMENT IN THIS CASE HAS BEEN WRONGLY HELD TO BE INVALID BY THE LD. CIT(A). FOR THIS PROPOSITION HE RELIED UPON THE DECISION OF HONBLE MADHYA PRADESH HIGH CO URT IN THE CASE OF SMT. KAUSHALYABAI V. CIT 238 ITR 1008. IN THIS CA SE IT WAS HELD THAT:- HELD (I) THAT SINCE THE WIDOW OF THE DECEASED HAD ALREADY PARTICIPATED IN THE PROCEEDINGS NOTWITHSTANDING TH E FACT THAT NOTICE WAS ISSUED IN THE NAME OF THE DEAD PERSON THE DEFE CT IN THE NOTICE STOOD AUTOMATICALLY CURED. (II) THAT THE ASSESSEE HAD GIFTED CASH TO HIS WIFE WHICH HAD BEEN INVESTED IN A FIRM. THE TRIBUNAL WAS CORRECT IN HOLDING THAT THE INCOME FROM THE FIRM RECEIVED B THE WIFE WAS INCLUD IBLE IN THE TOTAL INCOME OF THE ASSESSEE. 5. WE HAVE CONSIDERED THE SUBMISSIONS. WE FIND TH AT IN THIS CASE THE ASSESSMENT HAS BEEN MADE IN THE NAME OF THE DEAD PE RSON. THE LEGAL HEIRS OF THE ASSESSEE HAVE BEEN REPRESENTED IN THE ASSES SMENT PROCEEDINGS. IN OUR ITA 577(DEL)2010 4 CONSIDERED OPINION THIS IS A CURABLE DEFECT IN TER MS OF SECTION 292B OF THE I.T. ACT. ACCORDINGLY WE REMIT THE ISSUE TO THE FILE OF THE AO TO MAKE THE ASSESSMENT AFRESH BY BRINGING ON RECORD THE LEGAL H EIRS OF THE ASSESSEE. 6. IN THE RESULT THIS APPEAL BY THE REVENUE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31.03.2011. SD/- SD/- (I.P. BANSAL) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31.03.2011 *RM COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER DEPUTY REGISTRAR