JANARDAN GUPTA, LEGAL HEIR SHRI JITENDRA GUPTA,ANGUL vs. PRINCIPAL CIT-2, BHUBANESWAR

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM आयकर अपीऱ सं./ITA No.199/CTK/2018 (नििाारण वषा / Assessment Year :2013-2014) Janardan Gupta(Deceased) Vs. Principal CIT-2, Through Legal Heir Bhubaneswar Jitendra Gupta, M/s Gupta Automobiles, Panchamahala, Angul स्थायी लेखा सं./PANNo. : ACPPGS 5186 I (अऩीलाथी /Appellant) (प्रत्यथी / Respondent) .. ननधाारिती की ओर से /Assessee by : Shri P.R.Mohanty, AR िाजस्व की ओर से /Revenue by : Shri Subhendu Dutta,DR

सुनवाई की तािीख / Date of Hearing : 15/10/2019 घोषणा की तािीख/Date of Pronouncement : 15/10/2019 आदेश / O R D E R Per L.P.Sahu, AM: This is an appeal filed by the assessee against the order passed by the Pr. CIT-2, Bhubaneswar u/s.263 of the Act, on the following grounds of appeal :- 1. That on the facts and in the circumstances of the case, the Ld. Pr.CIT-2, Bhubaneswar has erred in law by invoking section 263 basing upon the presumption & Surmises and set-aside the completed assessment made U/s 143(3) of the Act, in spite of the fact that the assessee is already expired on 15' March 2015, and fresh assessment can't be initiated against deceased assessee. 2. That on the facts and in the circumstances of the case, the Ld.Pr.ClT-2,Bhubaneswar erred by giving the instruction of indicative disallowance U/s 37(1) in the hands of the assessee which represented disallowance of bank interest amounting to Rs 12,66,651/-, i.e., 12.7% of the borrowed fund to the extend not utilized for the purpose of business.

2 ITA No.199/CTK/2018 3. That the order of the Ld. Pr. CIT-2,Bhubaneswar being not based on the fact of the case of the appellant and being contrary to law, should hence be quashed and appellant be given such relief or reliefs as prayed for. 4. For that, the appellant craves leave to add/alter/amend further grounds, if any, at the time of hearing of appeal. 2. Brief facts of the case are that the return of income of assessee

Late Janardan Gupta was filed for the financial year 2012-2013 on

31.03.2015 and the case was selected for scrutiny. During the course of

assessment proceedings, on 08.10.2015, son of late Shri Jitendra Gupta

informed that he has expired on 15.03.2015 and all such

correspondences regarding Late Janardan Gupta shall be addressed to

his legal heir Jitendra Gupta. The assessment was completed on

31.03.2016 in the name of Late Janardan Gupta legal heir –Jitendra

Kumar Gupta by making certain additions. Later on the ld.CIT passed

u/s.263 of the Act by exercising his revisonary power in the name of

late Shri Janardan Gupta vide order dated 27.03.2018 setting aside the

order to the file of AO for re-do the assessment.

in appeal before the Income Tax Appellate Tribunal.

person which is not sustainable in the eyes of law. Therefore, entire

proceeding initiated by the Pr. CIT u/s.263 of the Act is erroneous. In

support of this contention, ld. AR relied on the decision of Hon’ble

3 ITA No.199/CTK/2018 Madras High Court in the case of CIT Vs. M. Hemanathan, (2016) 384

ITR 0177(Mad).

available on record and the impugned order passed u/s.263 of the Act,

we noticed from the death certificate submitted by the assessee that

late Janardan Gupta died on 15.03.2015 which has duly been recorded

by the AO in his assessment order and order has been passed in the

name of legal heir also. We further noticed from the order of Pr.CIT that

he has passed order in the name of deceased-assessee who was not in

existence on the date of passing of the revisional order u/s.263 of the

Act. We also agree with the case law relied on by the ld. AR in the case

of M. Hemanathan (supra), wherein the Hon’ble Madras High Court in

para 12 has held as under :- “12. But unfortunately, the said contention loses sight of the settled position that any proceeding initiated against a dead person is a nullity. The contention of the learned Standing Counsel for the Department loses sight of one important distinction between a case where the proceedings are initiated against a person, who is alive, but continued after his death and a case of proceedings initiated against a dead person himself. If the proceedings had been initiated against a person, who was alive, and they were continued after his death after putting his legal heirs on notice, those proceedings, under certain circumstances, may be saved. Such a situation is also contemplated in civil proceedings and a provision is made in the Civil Procedure Code itself under Order XXII Rule 4. Therefore, the cases where the very proceedings are initiated against a dead person stand apart from those proceedings where they are initiated against a live person, but continued after his death against the legal heirs. Hence, the first contention is rejected.”

4 ITA No.199/CTK/2018 7. Respectfully following the above decision of Hon’ble Madras High Court, we are of the considered view that the Pr. CIT is not justified in setting aside the assessment order invoking powers u/s.263 of the Act ignoring the fact that the assessee is already expired on 15.03.2015, which was already informed by legal heir Shri Jitendra Kumar Gupta, the son of the assessee during the course of assessment proceedings. The AO has also passed order u/s.143(3) of the Act in the name of legal heir of the assessee. Therefore, fresh assessment cannot be initiated against the deceased assessee. Accordingly, we quash the order passed by the Pr. CIT u/s.263 of the Act and allow the appeal of the assessee.