Case Law Details
ITO Vs. Late Sh. Ram Kumar (ITAT Delhi)
It is observed from the assessment order passed by Ld. AO that Ld. AO was well informed regarding the demise of assessee. He was supposed to bring the legal heirs on record as per the details submitted before him during assessment proceedings itself. Once the non-existence of an assessee is brought to the notice of assessing officer, assessing officer ought to have issued the notice under the name of legal heirs and should have passed the assessment order in the name of such legal hairs. Such mistakes cannot be cured by section 292B of the act.
FULL TEXT OF THE ITAT ORDER IS AS FOLLOWS:-
The present appeal has been preferred by the revenue against order dated 20/10/16 passed by Ld.CIT(A)-14, New Delhi for assessment year 2012-13 on the following grounds of appeal:
1. On the facts and circumstances of the case and in law, the Ld. CIT(A) is not justified in not appreciating the merits of the case and treating the order of the AO to be ab intio null and void.
2. On the facts and circumstances of the case and in law, the Ld. CIT(A) is not justified in not considering the provisions of section 2928 of the Income Tax Act.
3. On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in not considering the Honorable Haryana & Punjab High Court in the case of Swaran Kanta Vs Commissioner of Income Tax (176 ITR 291) held that” title of order, which was not happily worded would not make the order invalid”.
4. The Appellant craves the right to add, alter or amend any ground of appeal.
2. Brief facts of the case are as under:
During the assessment proceedings Ld.AO observed that assessee had sold immovable property during the financial year relevant to assessment year under consideration for which non statutory notice dated 08/10/13 was issued. As the assessee did not comply with the letter the case was reopened under section 147 of the Income Tax Act, 1961 (the Act) and notice under section 148 of the Act was issued after recording reasons. Subsequently notice under section 142(1) and 143(2) of the Act were issued to the assessee. In response to these notices, representatives of assessee attended before the Ld. AO and submitted that assessee Shri.Ram Kumar demised on 12/12/13.
2.1. Ld. AO passed the assessment order under section 143 (3) read with 147 of the act on 27/03/15 in the name of deceased assessee making an addition of Rs. 62,11,917/- on account of long term capital gain.
2.2. Aggrieved by the assessment order passed the legal heirs of the assessee preferred appeal before the Ld. CIT (A) wherein the validity of the assessment order passed by Ld. AO on the deceased assessee was challenged.
2.3. Ld. CIT (A) after going through the entire records allowed the legal plea raised before him by observing as under:
“I have considered the submissions of the appellant as well as the findings of the Ld.AO and judicial pronouncements of higher appellate authorities and the Honorable Courts relied upon by the Ld.AR and found that the contention of the Ld.AR that the order passed u/s 143(3)/147 of the Act on 27.3.2015 after the death of the assessee by the Ld.AO is invalid is correct. Hence, the order date 27.3.2015 passed u/s 143(3)/147 of the Act is correct. Hence ground nos. 1 and 2 are allowed.
The other grounds of appeal are consequential to ground nos. 1 and 2 and since the very assessment has been held null and void, these become infructuous and thus do not need adjudication separately.”
2.4. Aggrieved by the order of Ld.CIT(A) revenue is in appeal before us now.
2.5. Ld. DR supported the order of Ld. AO by trying to take shelter under the provisions of section 290 2B of the act.
2.6. On the contrary Ld.AR supported the order passed by Ld. CIT (A).
3. We have perused the submissions advanced by both the sides in the light of the records placed before us. It is observed from the assessment order passed by Ld. AO that Ld. AO was well informed regarding the demise of assessee. He was supposed to bring the legal heirs on record as per the details submitted before him during assessment proceedings itself. Once the non-existence of an assessee is brought to the notice of assessing officer, assessing officer ought to have issued the notice under the name of legal heirs and should have passed the assessment order in the name of such legal hairs. Such mistakes cannot be cured by section 292B of the act. We therefore do not find any infirmity in the order passed by Ld. CIT (A) and the same stands upheld.
3.1. Accordingly the grounds raised by revenue stand dismissed
3.2. In the result appeal filed by the revenue stands dismissed.
Order pronounced in the open court on 27th December, 2017.
