SAMADHAN KRISHNA KATEKAR,RAIGAD vs. ITO WD 3 PANVEL, NAVI MUMBAI

IN THE INCOMETAX APPELLATETRIBUNAL “G” BENCH MUMBAI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER ITA No. 3112/Mum/2017 (Assessment Year 2008-09) Mr. Samadhan Krishna ITO. Ward-3, Katekar, L/H of Late Krishna Vs. Panvel Range, Trifed Tower, Kathari Katekar, Opp. Khanda Colony, AT Dhutum, Taluka-Uran, Navi Mumbai-410206. District-Raigad. PAN: AZRPK4713E Appellant Respondent Appellant by : Mr. Prakash Pandit (Advocate) Respondent by : Shri Satish Rajore (Sr. DR) Date of Hearing : 10.06.2019 Date of Pronouncement :12.06.2019 ORDER UNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. This appeal under section 253 of income tax Act (Act) is directed against

the order of learned Commissioner (Appeals), 2, Aurangabad, in the matter

of assessment completed under section 143(3) read with section 147 of the Income tax Act dated 28th of March 2014 for assessment year 2008- 09.

The appellant/ legal heirs of assessee has raised following grounds of

appeal: (1) In the facts and circumstances of the case and in law reassessment proceeding initiated under section 147 read with section 148 are void and nullity. (2) In the fact and circumstances of the case and in law notice under section 148 of the act is invalid and therefore reassessment order is void and nullity. (3) In the fact and circumstances of the case and in law Commissioner (Appeals) erred in confirming assessing officer action in taxing Rs. 2.94 Crore as short- term capital gain when no transfer of the plot has taken place as alleged by

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assessing officer within the meaning of section 2(47) of Act during assessment year 2008-09. (4) Reasons given by Commissioner (Appeals) for confirming assessing officer action in taxing Rs.2.94 crore as short-term capital gain for assessment year 2008-09 are wrong insufficient and contrary to the facts and evidence on record as no transfer of the plot taken place as alleged by assessing officer within meaning of section 2(47) of the Act during assessment year 2008-09. In the fact and circumstances of the case and in law, learned Commissioner appeal erred in confirming assessing officer section in taxing Rs. 8 552000/- as cash money received on the basis of third-party evidence. (5) In the facts and circumstances of the case and in law, Commissioner appeal erred in confirming assessing officer section in taxing sum of Rs. 8 552000/-as a cash money received on the basis of third-party evidence are wrong insufficient and contrary to the facts and evidence on record. 2. The appellant/ LR’s of assessee vide his application dated 22nd October 2018 filed on the 12th November 2018, raised following additional

grounds of appeal:

(1) Without prejudice to ground 1&2 in the main grounds of appeal, in the fact and in the circumstances of the case and in law, reopening of assessment under section 147 read with section 148 is void ab initio in absence of reasons recorded. (2) Without prejudice to the grounds No. 1&2 in the main grounds of appeal, in the fact and circumstances of the case and in law, the assessment order dated 28March 2014 under section 143(3) read with section 147 of the Act is void ab initio in absence of notice under section 143 (2) of the income tax Act. (3) Without prejudice to ground No.3 &4 in the main grounds of appeal, in the facts and circumstances of the case and in law, the learned assessing officer erred in treating rupees to .94 crore as short-term capital gain on sale of write in the lease hold plot, as capital gain, if any, is a long-term capital gain. (4) Without prejudice to the ground number three and four in the main grounds of appeal, in the facts and circumstances of the case and in law, the assessing

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officer erred in treating cost of acquisition and snail, with while calculating capital gain on sale of right in the lease hold plot. (5) The appellant craves leave to add, amend, alter, modify or permit any of the aforesaid grounds of appeal is occasion may arise of demand. 3. Brief facts of the case are that assessee is a non-filer of return. In this case,

Joint Commissioner of Income tax (JCIT) (OSD), Central Circle, 39,

Mumbai made certain investigation on the basis of documents and other

incriminating materials seized during the course of search and seizure

action in case of Madan Kolambekar and M/s Jai Corp Group of cases. The

said search and seizure action was carried under section 132 on 22.01.2009

wherein various incriminating evidence were gathered. On the basis of

such incrementing material, the investigation party took a view that the

incriminating evidence clearly shows that Jai Corp group entity purchased

plot No. 132, Sector- 56 admeasuring 2450 in Navi Mumbai. The said plot

of land was developed and allotted by CIDCO. On further enquiries from

CIDCO it was transpired that the said plot was allotted to the Krishna

Katekar by CIDCO in addition to the compensation paid by the State

Government on acquisition of land. The investigation party also gathered

information and evidences that the said plot was negotiated through Madan

Kolambekar and the assessee had received Rs. 85,52,000/- as advance in

cash on 02.02.2008. On 22 January 2009, a survey under section 133A was

conducted in one of the office of Jai Corp group at their office at Embassy

Centre, Nariman point, Mumbai. During the course of survey operation,

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various other incriminating documents /evidences was recovered, which further corroborates the facts of ‘on money’ payments was paid for purchase of said plot. Subsequently, some other incriminating documents were also unearthed during the course of search action in case of Jai Corp group on 5 March 2009. All these information was passed to the Income Tax Officer Panvel, District Raigarh (assessing officer). 4. The assessing officer on the basis of above referred information was having reason to believe that income of the assessee had escape assessment; therefore notice under section 148 in the name of Krishna Kathari Katekar was issued on 13th March 2013. The assessing officer noted that there was no response to the notice dated 13th March 2013. Therefore, on 21st November 2013 other notice was issued to the assessee directing the assessee to file return of income within seven days of receipt of the said notice. The assessing officer also recorded that notice under section 143 (2) and 142 (1) was issued and served upon the legal heirs of Krishna Kathari Katekar (assessee). The legal heirs of Krishna Kathari Katekar (present appellant) filed return of income on 14th March 2014.The return of income filed on 14th March was treated as time barred return. The assessing officer recorded that the reasons recorded was sought by the representatives of the assessee and that it was shown to them. It was further recorded by the assessing officer that it was explained to him that during the year under consideration Krishna Kathari Katekar has entered in 4

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to the agreement for sale of plot of land allotted from CIDCO to M/s

Madan Kolambekar for Rs. 2.94 Crore and against the said land

transaction he has received Rs.1.50 Crore only. The assessing officer

issued show cause notice as to why the sale consideration out of which the

substantial part is received be not taxed as short term capital gain (STCG).

And similarly the receipt of cash of Rs. 85,52,000/- be not taxed to the

total income of the assessee.

dated 18.03.2014 (wrongly noted as 18.03.2004). In the reply the

background of allotment of plot admeasuring 2450 was explained. It was

explained that the assessee entered in to agreement to sale of the said plot

to Madan Kolambekar for a total sale consideration of Rs. 2.94 Crore. It

was stated that half of the consideration was payable on the execution of

agreement of lease by CIDCO and remaining on the execution of tripartite

agreement by purchaser. It was further stated that out of the total sale

proceed the assessee has received only Rs. 1.50 Crore on various dates.

The purchaser failed to execute the agreement and to make remaining

payment within the agreed period. In the meantime the relatives of the

assessee also filed the suit for claiming rights in the said plot of land. It

was further explained that the sale was not complete and that the asset was

not transferred within the meaning of section 2(47) of the Act. The

explanation furnished on behalf of the assessee was no accepted by the 5

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assessing officer. The assessing office concluded that the assessee was in

receipt of unaccounted cash money of Rs. 85,52,000/- on 02.02.2008 from

Jai Corp Entity/ Madan Kolambekar in respect of deal of plot. The return of income was filed only on issuance of notice under section 148 and

failed to declare the income of Rs.2.94 Crore of STCG. Thus, the assessing

officer made addition of STCG of Rs. 2.94 Crore and unaccounted cash of Rs. 85.52 lakhs while passing assessment order on 28th March 2014 under

section 143 (3) read with section 147. 6. Aggrieved by the additions made by assessing officer, the applicant/LRs of

assessee filed appeal before Commissioner (Appeals). Perusal of first

appellate authority order reveals that initially, the assessee challenged only

the additions in the quantum assessment; however during the pendency of

appeal the validity of notice under section 148 as well as validity of assessment order was also challenged. The learned first appellate authority

upheld the validity of notice under section 148 as well as the additions in

the assessment order. Therefore, further aggrieved by the order of

Commissioner (Appeals) the assessee has filed present appeal before us. 7. Perusal of record reveals that on the 09.04.2019, the learned senior

departmental representative (Sr. DR) was directed to allow the inspection

of assessment record to the appellant and also provide the copy of reasons

recorded. On 10.06.2019 (on the day of final hearing), the learned senior

departmental representative submits that he has brought the original 6

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assessment record. It was disclosed by ld. DR that the original assessment record does not contain the reasons recorded. On our further quarry it was

communicated to us that there is no evidence available on record to show that the reasons recorded were ever supplied to the representative of assessee or to the legal has of assessee. With the assistance of the ld.

representatives, we have gone through the original assessment record along with the order sheet noting of assessing officer. The assessing officer started recording his order sheet only from 21st November 2013; however the notice under section 148 was issued on 13 March 2013. We further

noted that there is evidence in the assessment record, if notice under section 143(2) was issued or sent by assessing officer. On these observations, we heard the submission of learned representative of the

parties. 8. We have heard the submission of learned authorised representative (AR) of the assessee and learned departmental representative (DR) for the revenue

and perused the material of available on record. We have also deliberated on various case laws relied by learned representative of the parties as well as by the lower authorities. The learned AR of the assessee made

exhaustive submissions on validity of notice under section 148 as well as the validity of assessment order passed against the deceased assessee. The learned AR submits that the notice under section 148, dated 13th of March

2013 was issued in the name of Shri Krishna Kathari Katekar. The said 7

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notice was received by Samadhan Krishna Katekar, the son of deceased on 14th March 2013. The son of deceased assessee, while receiving the notice under section 148, clearly endorsed on the said notice that “assessee has expired on 30th of December 2009 and that he is his son”. The learned AR further submits that he has received the copy of said notice from the

assessment record under the provisions of Right to Information Act, and the copy of which is placed on record. The learned AR for the assessee further submits that despite informing the assessing officer about the death of assessee, the assessing officer concluded with the assessment

proceeding. No fresh notice under section 148 was served upon the legal hairs of the assessee, as mandated under the provisions of Code of Civil Procedure, as well as under the provisions of section 159 of Income-tax

Act. The assessing officer had enough time to carry out the formalities for bringing legal hairs on record and issuing fresh notice under section 148. The notice under section 148, issued in the name of deceased is invalid

notice and the proceedings initiated in pursuance of the said notice invalid and the subsequent action of assessing officer is void ab initio. Therefore, the entire assessment is void ab initio as notice under section 148 is in the

name of deceased person is invalid. 9. The learned AR for the assessee further explained that as per sub section (1) of section 59 of Income tax Act, where person dies, his legal

representative shall be liable to pay sum which the assesses would have 8

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been liable to pay if he had not died, in the like manner and to the same

extent as the deceased if he had survived. Similarly section 159 (2) also

empower the assessing officer to take the proceeding against the legal

representative which he should have taken against the deceased, if he had

survived. Sub section (2) of section 159 nowhere authorise the assessing

officer to take the proceeding against the individual who has already

expired, that is why the legal representative under section 2 (7) are

regarded to be assessee. The notice under section 148 has to be issued on

the assessee i.e. individual (human being). A person who has already

expired cannot be regarded as human being as on the date when the notice

was issued in this case. Only the legal heir can be regarded to be

individual. Therefore, in view of the clear mandates of section 2(7) and sub

sections (1), (2) and (3) of section 159, it was submitted that in absence of

issuance of valid notice, the proceeding initiated under section 147 cannot

be said to be a valid one. Since, the notice under section 148 is itself

invalid, therefore the assessing officer has no jurisdiction to make the

assessment. The defect of notice which goes to root of the matter cannot be

cured under section 292B or 292 BB. It was submitted that the learned

Commissioner (Appeals) relied upon the decision of Madhya Pradesh

High Court in case of Smt. Kaushalyabai Vs CIT (238 ITR 1008), on the

ground that as legal heirs participated in the assessment proceeding, the

notice issued under section 148 is valid (cured). The learned 9

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Commissioner (Appeals) ignored binding decision of Third Member of

Agra Tribunal in case of ITO Vs Sikandar Lal Jain (45 SOT 119) and the

decision of Hon’ble Madras High Court in case of CIT Vs M Hemanathan

(384 ITR 177 Mad), whereby the Hon’ble Madras High Court held that

principle of law which is mentioned by Madhya Pradesh High Court in

Smt. Kaushalyabai Vs CIT(supra) does not appears to be correct. Thus, it

was argued that the law explained by Hon’ble Madras High Court is the

correct explanation of law. 10. In support of his submission, the ld. AR of the assesses relied upon the

decision of Hon’ble Madras High Court in CIT vs. M. Hemanathan (384

ITR 177 (Madras), Hon’ble Bombay High Court in Rupa Shyamsundar

Dhumatkar vs. ACIT (W.P.No. 404 of 2019) dated 05.04.2019, ITO vs.

Sikandar Lal Jain (2011) 45 SOT 113(TM), Mrs. Jerbanoo N. Wadia vs.

ACIT (39 TTJ (Bom) 138, Rashid Lala vs. ITO (77 Taxman.com 39

(Guj.), CIT vs. Rakesh Kumar, Mukesh Kumar (313 ITR 305 (P&H), CIT

vs. Suresh Chandra Jaiswal (325 ITR 563) and ITO vs. Ganga Prasad

Jaiswal (39 ITD 444 (All.). 11. On the other hand, the ld. DR for the revenue supported the order of lower

authorities. The ld. DR further submits that the appellant/LRs of assessee

have not objected about the issuance of notice in the name of dead person.

The LR’s of the assessee fully participated in the assessment proceeding.

Reasons of re-opening was never asked for during the assessment 10

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proceeding. The appellant has not shown any prejudice caused to them.

Now the appellant /LR’s of the assessee are precluded from raising the

objection about the issuance of notice under section 147/148 in the name of dead person. The ld DR for the revenue fully supported the order of ld

Commissioner (Appeals) and also relied on the decision of MP High Court

in Smt. Kaushalyabai Vs CIT (supra). 12. We have considered the submission of both the parties and gone through

the orders of authorities below carefully. As noted earlier that the assessee

has raised additional grounds of appeal. Perusal of the additional grounds

of appeals reveals that in sum and substance the additional grounds are

reframed and no fresh material is required to be brought on record for

adjudication of additional grounds. Therefore, the additional grounds of

appeals are admitted for adjudication. There is no dispute that the assessing officer issued notice under section 148 on 13.03.2013. The said notice was

received by the son of the assessee on 14.03.2013. While receiving the

notice the son of the assessee clearly made endorsement on the notice itself

that the assessee expired on 30th December 2009. This fact of

endorsements on the notice under section 148, about the death of assessee on 30th December 2009, was verified from the assessment record brought

in the Court. Admittedly, no fresh notice under section 148 on the legal

heirs of the assessee was served. The legal heirs of the assessee filed return

of income on 14 .03.2014. The said return of income was treated as time 11

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barred return. The assessment was completed on 28.03.2014 under section

143(3) rws 147. The assessment was passed in the name of Samadhan

Krishna Katekar. No notice under section 148 was served on Samadhan

Krishna Katekar (the legal heir of the assessee). There is no dispute that

the legal heir of the assessee participated in the assessment proceedings.

The perusal of the assessment order reveals that the assessing officer made

additions of the basis of the information passed by investigation team who

had conducted the search and survey action on Jai Corp group. The

assessing officer brushed aside the explanation furnished before him that

only a sum of Rs. 1.50 Crore was received by the assessee and that the

asset i.e. the plot allotted from the CIDCO was not transferred nor the

agreed sale proceeds was received.

appeal before ld. Commissioner (Appeals) that the notice issued under

section 148 is invalid and therefore, the assessment order in void ab initio.

The additional ground of appeal raised by legal heirs was rejected by ld

Commissioner (Appeals) holding that the legal heirs of the assessee

participated in the assessment and furnished their reply dated 18.03.2014.

The ld. Commissioner (Appeals) rely on the decision of MP High Court in

Smt. Kaushalyabai ( supra), wherein it was held that the issuance of notice

on the dead person should be treated a procedural irregularity under

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section 292B of the Act and due to participation in the proceedings it is

cured automatically.

Kaushalyabai (supra) is not good law as has been held by Hon’ble madras

High Court in CIT Vs Hemanathan (supra).

considering the question of law “whether on the facts and in the

circumstances of the case, the Tribunal was right in law in quashing the

order of the Commissioner of Income Tax passed under section 263 of the

Income Tax Act on a dead person without noting that the Commissioner

of Income Tax has impleaded the legal heirs of the assessee and whether

on the facts and circumstances of the case, the Tribunal was right in not

considering the crucial fact that the notice under section 263 of the

Income Tax Act was served on the legal representative and the

opportunity of being heard was given to the legal representative and his

authorised representative appeared and attended the hearings before the

Commissioner of Income Tax during the proceedings under section 263

of the Income Tax Act. The Hon’ble High Court held that notice issued

in name of deceased-assessee was served upon legal heir, who, then,

participated in proceedings, such proceedings was a nullity being initiated

against a dead person. It was further held that where notice issued in

name of deceased-assessee was served upon legal heir, who, then, 13

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participated in proceedings, said legal heir could not be deprived of right

to challenge service of notice. For better appreciation of facts of the said

case and for comparing the facts of the present case the relevant part of

the decision is extracted below:

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and all the provisions of this Act shall apply accordingly

(3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. (4) Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains undischarged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value of the asset so charged, disposed of, or parted with. (5) The provisions of sub-section (2) of section 161, section 162 and section 167, shall, so far as may be, and to the extent to which they are not 15

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inconsistent with the provisions of this section, apply in relation to a legal representative. (6) The liability of a legal representative under this section shall, subject to the provisions of sub-section (4) and sub-section (5), be limited to the extent to which the estate is capable of meeting the liability." 18. Sub-section (1) of section 159 would apply to a case where a liability has already crystallised. The death of an assessee would not absolve the legal heirs of the assessee of any liability that the assessee had incurred during his life time. In the case on hand, the liability, if any, would have arisen only after an order is passed under section 263. Therefore, sub-section (1) of section 159 will not apply to the case on hand. Sub-section (2) of section 159 deals primarily with two contingencies. The first is dealt with in Clause (a) of sub-section (2) of section 159. This Clause (a) contemplates the contingency of a proceeding taken against the deceased before his death. 19. In this case, the very initiation of proceedings under section 263 was done after the death. Clause (a) of sub-section (2) uses the expression 'before his death'. Therefore, Clause (a) would not apply to the case on hand. 20. Clause (b) is probably more advantageous to the Revenue, if at all it could be taken advantage by the Revenue. Clause (b) attempts to save the situation where the right of the Revenue to proceed against the assessee was available at the time when the assessee had passed away. Take for instance cases where the Appellate Authority has decided an issue in favour of the assessee and before the time limit available for the Department to file a further appeal, the assessee had died. In such situation, the right to file further appeal is a right to take any proceeding that was available to the Department as if the deceased assessee had survived. Therefore, it is only those circumstances that can be said to be taken care of under clause (b). 21. In any case, in the case on hand, the Department was made aware of the fact that the assessee was dead. The Income Tax Officer's letter dated 23.9.2013 informing his superior that the notice under section 263 returned with the endorsement of the Postal Department to the effect that the addressee was dead, clinches the fact. Despite being put on notice that the noticee was dead, the Department chose to pursue the very same notice. In such circumstances, Clause (b) of sub-section (2) of section 159 cannot be taken advantage of by the Department. 22. Sub-section (3) of section 159 contains a deeming fiction. It states that the legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. Therefore, it is contended by Mr.M. Swaminathan, learned Standing Counsel for the Department that the respondent should be deemed to be an assessee and the service of notice on him should be deemed to be sufficient service. 23. In other words, the contention of the learned Standing Counsel is that the respondent herein automatically becomes a deemed assessee in terms of sub- section (3) and hence, his participation would pre-empt him from taking objection to the fact that the notice was addressed to a dead person.

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out that the notification issued in the name of a dead person is a nullity. In Smt. Lila Vati Bai v. State of Bombay AIR 1957 SC 521, the Constitution Bench of the Supreme Court had carved out an exception. 31. The case on hand will not fall under the said exception. Therefore, the very initiation of the proceedings against the dead person and the continuation of the same despite having noticed the factum of death of the assessee cannot be approved. 32. Hence, the tax case appeal is dismissed and the questions of law are answered against the Department.” 16. The Hon’ble Bombay High Court in Rupa Shyamsundar Dhumatkar

(supra) held that it is settled law; notice for reopening of assessment

against a dead person is invalid. The fact that the assessing officer was not

informed of the death before issue of notice is irrelevant.

held that where original assessee, died on 2-12-2009 and after a period

of six years Assessing Officer issued notice under section 148 in her

name to reopen assessment for assessment year 2009-10 and further

despite pointing out by heir of assessee that assessee had expired long

back, he relying upon section 159 continued with reassessment

proceedings against assessee, section 159 would not applicable to

instant case and, therefore impugned notice was liable to be set aside.

101 taxmann.com 233 (Delhi) also took the view that where notice

seeking to reopen assessment was issued in name of deceased assessee,

since she could not have participated in reassessment proceedings,

provisions of section 292BB were not applicable to assessee's case and

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as a consequence, impugned reassessment proceedings deserved to be

quashed.

Kaushalyabai ( supra) is not helpful to the revenue as the same has

already been distinguished by Madras High in CIT vs. M. Hemanathan

(supra) as well as by Delhi High Court in Rajinder Kumar Sehgal Vs

ITO (supra).

following the decisions of various High Courts, the impugned

reassessment notice issued under section 148 on 13.03.2013 in invalid and

therefore, all consequent proceedings including the reassessment order-

have to be and is, hereby quashed. In the result the ground No. 1&2 of the

appeal raised by the assessee are allowed. As we have allowed the legal

issues raised by the assessee and quashed the reassessment, therefore,

discussions on the merits of the case have become academic.

Order pronounced in the open court on 12/06/2019.

Sd/- Sd/- M. BALAGANESH, PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Date: 12.06.2019 SK Copy of the Order forwarded to : 1. Assessee 2. Respondent 3. The concerned CIT(A) 19

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BY ORDER,

Dy./Asst. Registrar ITAT, Mumbai