Income Tax Appellate Tribunal - Ahmedabad
Shri Rajesh G Shah, (L/H Of Late Smt. ... vs The Ito, Ward- 5(2)(4),, Ahmedabad on 9 July, 2021
IN THE INCOME TAX APPELLATE TRIBUNAL
"SMC" BENCH, AHMEDABAD
(CONDUCTING THROUGH VIRTUAL COURT)
BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER &
Ms. MADHUMITA ROY, JUDICIAL MEMBER
ITA No. 2232/Ahd/2018
(Assessment Year: 2007-08)
Shri Rajesh G. Shah Vs. Income-tax Officer
(L/H of Late Smt. Sarojben G. Ward-5(2)(4),
Shah), 401, Shubh House, 77, Ahmedabad
Swastik Society, B/h. St. Xavier's
Ladies Hostal, Off. C. G. Road,
Ahmedabad
[PAN No. ACWPS4000N]
(Appellant) .. (Respondent)
Appellant by : Shri T. P. Hemani, Sr. Adv., with Shri Parimal
Sinh Parmar, A.R.
Respondent by: Shri S. S. Shukla, Sr. D.R.
Date of Hearing: 31/05/2021
Date of Pronouncement: 09/07/2021
ORDER
PER Ms. MADHUMITA ROY - JM:
The instant appeal filed by the assessee is directed against the order dated 29.05.2017 passed by the Ld. CIT (Appeals)-5, Ahmedabad arising out of the order dated 26.03.2015 passed by the Ld. ITO, Ward-5(2)(4), Ahmedabad under Section 143(3) r.w.s 147 of the Income Act, 1961 (hereinafter referred as to 'the Act') for A.Y. 2007-08.
2. The short point involved in this particular case is this that as to whether notice under Section 148 could be issued in the name of a deceased.
The facts culled out from the records is this that the assessee filed its original return of income on 28.02.2018 declaring total income of Rs. 3,73,710/-
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Shri Rajesh G. Shah vs. ITO
A.Y. 2007-08
assessment of which was duly proceeded under Section 143(1) and finalized. However, on 07.03.2014 a notice under Section 148 was issued in the name of the assessee Sarojben G. Shah upon taking necessary action from the concerned authority on the basis of some findings as regards the family members of the assessee at the time of finalization of their assessment proceeding for A.Y. 2010-
11. The said reassessment was finalized upon making addition which was, in turn, confirmed by the Ld. First Appellate Authority.
3. During the course of appellate proceeding the representative of the assessee made his objection against the reopening of assessment since the notice under Section 148 was issued on 07.03.2014 on the deceased Sarojben G. Shah who left for her heavenly abode on 05.01.2011. The contention of the assessee was that the reassessment cannot be initiated against the dead person, neither the notice under Section 148 could be issued on a deceased. However, such plea of the assessee was rejected by the First Appellate Authority and the addition was confirmed. Hence, the instant appeal before us mainly against the initiation of the proceeding under Section 148/147 of the Act by the Ld. AO.
4. We have heard the rival submission made by the respective parties, we have also perused the relevant materials available on records including the order passed by the authorities below.
5. The objection was raised by the assessee during the appellate proceeding as regards the jurisdiction and the validity of initiation of proceeding under Section 147/148 of the Act. The following judgments relied upon by the Ld. AR in support of his contentions were also carefully considered by us:-
(i) Urmilaben Anirudhsinhji Jadeja vs. ITO - 420 ITR 226 (Gujarat)
(ii) PCIT vs. Maruti Suzuki India Ltd. - (2019) 416 ITR 613 (SC)
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(iii) Chandrashbhai Jayantibhai Patel vs. ITO - (2019) 413 ITR 276 (Guj.)
6. Admittedly after the demise of the assessee on 05.01.2011 the notice under Section 148 dated 07.03.2014 was sought to be served upon her and finally the assessment proceeding was also finalized under Section 143(3) r.w.s. 147 on 26.03.2015. The above fact was duly placed before the First Appellate Authority by the representative of the deceased assessee which is also appearing at Page 2 Para 3.1 of the order passed by the First Appellate Authority; the same reads as follows:-
"3.1 During the course of appellate proceedings, the appellant filed written submission dtd. 16.08.2016 and the relevant portion of the same is reproduced as under:-
"The undersigned appellant was assessed to tax at Mumbai in earlier years. There is no facts concealed by the undersigned appellant. The learned AO has issued a notice of reopening on deceased person and a frame the assessment on that the deceased person. This action of the learned AO is not within the provision of the law. In spite of these facts, the completed assessment has been reopened by the learned AO which is not within the provisions of the law and therefore the impugned reassessment order passed is bad in law and deserves to be cancelled""
7. It is a settled principle of law that reopening notice issued in the name of a deceased person is not tenable in the eye of law. Neither the reopening notice under Section 148 issued to a dead person could be continued against legal representatives. Reliance is placed on the judgment passed by the Hon'ble Jurisdictional High Court in the case of Urmilaben Anirudhsinhji Jadeja vs. ITO, reported in 420 ITR 226 (Gujarat), PCIT vs. Maruti Suzuki India Ltd., reported in (2019) 416 ITR 613 (SC) and Chandreshbhai Jayantibhai Patel vs. ITO, reported in (2019) 413 ITR 276 (Gujarat). The ratio laid down in the order passed by the Hon'ble Madras High Court in the case of Alamela Veerappan vs. ITO, reported in [2018] 95 taxmann.com 155/257 Taxman 72 (Mad.) has also been considered by us where the ratio as above has been laid down.
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Shri Rajesh G. Shah vs. ITO
A.Y. 2007-08
Thus, respectfully relying upon the judgment passed by the Jurisdictional High Court and the other Hon'ble High Courts we find no merit in the initiation of the proceeding against the person who died more than three years prior to the date of issuance of notice under Section 148 of the Act. The same, according to us is not sustainable in the eye of law and, thus, the reassessment proceeding is liable to be quashed. The order is passed accordingly.
8. In the result, the appeal filed by the assessee is allowed.
This Order pronounced in Open Court on 09/07/2021
Sd/- Sd/-
(AMARJIT SINGH) (Ms. MADHUMITA ROY)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Ahmedabad; Dated 09/07/2021
Tanmay
आदे श क त ल प अ े षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. संबं धत आयकर आयु त / Concerned CIT
4. आयकर आयु त(अपील) / The PCIT- Ahmedabad.
5. वभागीय त न ध, आयकर अपील!य अ धकरण, अहमदाबाद / DR, ITAT, Ahmedabad
6. गाड' फाईल / Guard file.
आदे शानुसार/BY ORDER,
स या पत त //True Copy//
उप/सहायक पंजीकार (Dy./Asstt. Registrar)
आयकर अपील य अ धकरण, अहमदाबाद / ITAT, Ahmedabad
1. Date of dictation 08.07.2021.
2. Date on which the typed draft is placed before the Dictating Member 08.07.2021
3. Other Member.............
4. Date on which the approved draft comes to the Sr.P.S./P.S... 08.07.2021
5. Date on which the fair order is placed before the Dictating Member for pronouncement...
6. Date on which the fair order comes back to the Sr.P.S./P.S.......
7. Date on which the file goes to the Bench Clerk 09.07.2021
8. Date on which the file goes to the Head Clerk..........................................
9. The date on which the file goes to the Assistant Registrar for signature on the order..........................
10. Date of Despatch of the Order..................