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Facts
The assessee sold an immovable property for Rs. 50,00,000/- and deposited Rs. 2,00,000/-. The assessee, a non-filer, did not file a return of income. The AO initiated reassessment proceedings by issuing a notice u/s 148. The notice was returned unserved, and later affixed at the last known address. The AO then sent a notice u/s 142(1) to a new address in Pune. The assessee's legal heir informed the AO about the death of the original assessee and provided a death certificate. The AO completed the assessment in the name of the legal heir, considering the full sale consideration as long-term capital gain.
Held
The Tribunal held that the Ld. CIT(A)'s order was not sustainable in law for multiple reasons: (i) the order was passed in the name of a deceased person, (ii) the CIT(A) lacked the authority to restore the issue to the AO for adjudication on merit, and (iii) the CIT(A) did not properly adjudicate the legal objections raised by the assessee, particularly regarding the non-service of notice to all legal heirs.
Key Issues
Whether the reassessment proceedings are valid when notice u/s 148 was not served on all legal heirs, and whether the Ld. CIT(A) properly adjudicated the grounds of appeal.
Sections Cited
253(1)(a), 250, 148, 143(2), 151, 144, 147, 143(3), 46A
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Income Tax Appellate Tribunal, MUMBAI BENCH “F” MUMBAI
Before: SHRI OM PRAKASH KANT & SHRI SUNIL KUMAR SINGH
This appeal by the assessee is directed against order dated 12.02.2024 passed by the Ld. Commissioner of Income-tax (Appeals) – National Faceless Appeal Centre, Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2011-12, raising following grounds:
“Based on the facts and in the circumstances of the case Mr. Gopal bhai Based on the facts and in the circumstances of the case Mr. Gopal bhai Based on the facts and in the circumstances of the case Mr. Gopal bhai Arjan Patel through one of his legal heir Mr. Jayantilal Gopal bhai Patel Arjan Patel through one of his legal heir Mr. Jayantilal Gopal bhai Patel Arjan Patel through one of his legal heir Mr. Jayantilal Gopal bhai Patel (hereinafter referred to as 'the (hereinafter referred to as 'the Appellant') respectfully craves leave to Appellant') respectfully craves leave to prefer an appeal under section 253(1)(a) of the Act against the order prefer an appeal under section 253(1)(a) of the Act against the order prefer an appeal under section 253(1)(a) of the Act against the order dated 12 February 2024 passed by the Commissioner of Income dated 12 February 2024 passed by the Commissioner of Income dated 12 February 2024 passed by the Commissioner of Income-tax, Appeals, (National Faceless Appeal Centre) (hereinafter referred to as Appeals, (National Faceless Appeal Centre) (hereinafter referred to as Appeals, (National Faceless Appeal Centre) (hereinafter referred to as 'the learned CIT ned CIT-(A)) under section 250 of the Act on the following (A)) under section 250 of the Act on the following grounds which are independent and without prejudice to each other. grounds which are independent and without prejudice to each other. grounds which are independent and without prejudice to each other. Grounds challenging that the appellate order being passed Grounds challenging that the appellate order being passed Grounds challenging that the appellate order being passed without considering the additional grounds and additional without considering the additional grounds and additional without considering the additional grounds and additional evidence filed evidence filed by the appellant: a) The learned CIT a) The learned CIT-(A) erred in not adjudicating the additional ground (A) erred in not adjudicating the additional ground raised by the appellant during the appellate proceedings challenging raised by the appellant during the appellate proceedings challenging raised by the appellant during the appellate proceedings challenging the validity of the reassessment proceedings and notices being not the validity of the reassessment proceedings and notices being not the validity of the reassessment proceedings and notices being not issued to all the legal heirs issued to all the legal heirs of the deceased. b) The learned CIT b) The learned CIT-(A) erred in not considering the additional evidence (A) erred in not considering the additional evidence filed by the appellant during the appellate proceedings filed by the appellant during the appellate proceedings c) The learned CIT The learned CIT-(A) erred in not passing a speaking order despite (A) erred in not passing a speaking order despite filing all the factual details and legal a filing all the factual details and legal analysis vide submission dated 14 nalysis vide submission dated
14. August 2023, 26. August 2023, 26. November 2023,
09. February 2024. Grounds Grounds Grounds challenging challenging challenging the the the validity validity validity of of of the the the reassessment reassessment reassessment proceedings: d) The learned Assessing Officer erred in law'and facts and The learned Assessing Officer erred in law'and facts and The learned Assessing Officer erred in law'and facts and circumstances of the, case by not issuing and se circumstances of the, case by not issuing and serving notice under rving notice under section 148 to all the legal heirs (despite having knowledge of the same) section 148 to all the legal heirs (despite having knowledge of the same) section 148 to all the legal heirs (despite having knowledge of the same) in the case rendering the proceedings void in the case rendering the proceedings void e) The learned Assessing Officer erred in not issuing the notice under The learned Assessing Officer erred in not issuing the notice under The learned Assessing Officer erred in not issuing the notice under section 143(2) of the Act before passing the section 143(2) of the Act before passing the reassessment order, hence reassessment order, hence the order is bad in law. the order is bad in law. f) Erred in granting a mechanical approval by the learned CIT under Erred in granting a mechanical approval by the learned CIT under Erred in granting a mechanical approval by the learned CIT under section 151 of the Act with respect to satisfaction of reasons to believe section 151 of the Act with respect to satisfaction of reasons to believe section 151 of the Act with respect to satisfaction of reasons to believe by mentioning. Hence the reassessment proceedings are bad in la Hence the reassessment proceedings are bad in law. Grounds Challenging the merits of the case: Grounds Challenging the merits of the case: g) Without prejudice to the above, the learned AO erred in considering g) Without prejudice to the above, the learned AO erred in considering g) Without prejudice to the above, the learned AO erred in considering the stamp duty value for the year FY 2010 the stamp duty value for the year FY 2010-11 of Rs 1.53Cr instead of 1 11 of Rs 1.53Cr instead of 1. Oct 2005 of Rs. Oct 2005 of Rs. 54,02,000 h) Without prejudice to the above ground Without prejudice to the above grounds, the learned AO erred in s, the learned AO erred in taxing the entire gains in the hands of the appellant when there were taxing the entire gains in the hands of the appellant when there were taxing the entire gains in the hands of the appellant when there were two parties to the contract. two parties to the contract. i) Without prejudice to the above grounds, the learned AO erred in Without prejudice to the above grounds, the learned AO erred in Without prejudice to the above grounds, the learned AO erred in considering the entire capital gains in the hands of the one le considering the entire capital gains in the hands of the one le considering the entire capital gains in the hands of the one legal heir and not all five legal heirs. and not all five legal heirs. j) The learned AO erred in the computation of capital gains by not The learned AO erred in the computation of capital gains by not The learned AO erred in the computation of capital gains by not considering the indexed cost of acquisition considering the indexed cost of acquisition 2. Briefly stated, facts of the case are that Briefly stated, facts of the case are that Briefly stated, facts of the case are that in view of the information received by the Assessing Officer information received by the Assessing Officer that the assessee had that the assessee had sold sold sold immovable immovable immovable property property property value value value at at at a a a consideration consideration consideration of of of Rs.50,00,000/- and deposited Rs.2,00,000/ and deposited Rs.2,00,000/- in his bank account, in his bank account, but, he did not file the return of income, therefore after recording but, he did not file the return of income, therefore after recording but, he did not file the return of income, therefore after recording reasons to believe that income escaped assessme reasons to believe that income escaped assessment , he issued nt , he issued a notice u/s 148 of the Income notice u/s 148 of the Income-tax Act, 1961 (in short ‘the Act’) tax Act, 1961 (in short ‘the Act’) on 26.03.2018 in the name of in the name of Shri Gopal Arjan Patel. The notice Shri Gopal Arjan Patel. The notice issued u/s 148 of the Act was returned back by the postal issued u/s 148 of the Act was returned back by the postal issued u/s 148 of the Act was returned back by the postal authorities. Thereafter hereafter, the Assessing Officer serve the Assessing Officer served the notice at last known address of the assessee by way of affixture through of the assessee by way of affixture through inspector of his office. Thereafter, the Assessing Officer came to inspector of his office. Thereafter, the Assessing Officer came to inspector of his office. Thereafter, the Assessing Officer came to know another address of the assessee at Pune. Accordingly, the know another address of the assessee at Pune. Accordingly, the know another address of the assessee at Pune. Accordingly, the Assessing Officer issued notice u/s 142(1) of the Act dated Assessing Officer issued notice u/s 142(1) of t Assessing Officer issued notice u/s 142(1) of t 16.07.2018 on the new address. In response to the notice Shri 16.07.2018 on the new address. In response to the notice Shri 16.07.2018 on the new address. In response to the notice Shri Jayantilal Gopalbhai Patel Jayantilal Gopalbhai Patel, son of sh Gopal Arjan Patel submitted a Gopal Arjan Patel submitted a letter by post which was received office of the Assessing Officer on letter by post which was received office of the Assessing Officer on letter by post which was received office of the Assessing Officer on 14.08.2018, wherein he submitted that assessee Shri Gopal Arjan wherein he submitted that assessee Shri Gopal Arjan wherein he submitted that assessee Shri Gopal Arjan Patel had expired on 19.08.2017 and he also filed a copy of death Patel had expired on 19.08.2017 and he also filed a copy of death Patel had expired on 19.08.2017 and he also filed a copy of death certificate. Consequently, the Assessing Officer issued a notice to certificate. Consequently, the Assessing Officer issued certificate. Consequently, the Assessing Officer issued the assessee seeking details of the assessee seeking details of his legal heir and copy of the legal heir and copy of the agreement and copy of the bank statement of assessee ent and copy of the bank statement of assessee late Shri ent and copy of the bank statement of assessee Gopal Arjan Patel. In response, s In response, shri Narendra Patel, CA submitted a Narendra Patel, CA submitted a letter of authority signed by legal heir letter of authority signed by legal heir sh Jayantilal Gopal bhai patel sh Jayantilal Gopal bhai patel and filed copy of an acknowledgement of return filed for th an acknowledgement of return filed for th an acknowledgement of return filed for the year under consideration on 03.11.2018 declaring total income at under consideration on 03.11.2018 declaring total income at under consideration on 03.11.2018 declaring total income at Rs.1,54,010/- in response to notice u/s 148 of the Act. The return in response to notice u/s 148 of the Act. The return in response to notice u/s 148 of the Act. The return of income was signed by Shri Jayantilal Gopalbhai Patel, in the of income was signed by Shri Jayantilal Gopalbhai Patel, in the of income was signed by Shri Jayantilal Gopalbhai Patel, in the capacity of legal heir. The Assessing Officer also issued summon to capacity of legal heir. The Assessing Officer also issued capacity of legal heir. The Assessing Officer also issued other sons of the assessee namely Shri Keshavji Gopalbhai Patel, other sons of the assessee namely Shri Keshavji Gopalbhai Pate other sons of the assessee namely Shri Keshavji Gopalbhai Pate Himmatlal Gopal Bhai Patel, Mahendra Gopalbhai Patel and Haresh Himmatlal Gopal Bhai Patel, Mahendra Gopalbhai Patel and Haresh Himmatlal Gopal Bhai Patel, Mahendra Gopalbhai Patel and Haresh Gopalbhai Patel, however they did not comply and the authorized however they did not comply and the authorized however they did not comply and the authorized representative of the assessee Shri Narendra Patel submitted that representative of the assessee Shri Narendra Patel representative of the assessee Shri Narendra Patel those parties were not medically fit to attend. not medically fit to attend. The Assessing Officer The Assessing Officer noted that all the correspondence were made by Shri Mahendra noted that all the correspondence were made by Shri Mahendra noted that all the correspondence were made by Shri Mahendra Gopalbhai Patel son of Shri Jayantilal Gopalbhai Patel and the Gopalbhai Patel son of Shri Jayantilal Gopalbhai Patel and the Gopalbhai Patel son of Shri Jayantilal Gopalbhai Patel and the representative Shri Narendra Patel, CA who was du representative Shri Narendra Patel, CA who was duly authorized by ly authorized by Shri Jayantilal Patel in the capacity of the legal heir and Shri Jayantilal Patel in the capacity of the legal heir and Shri Jayantilal Patel in the capacity of the legal heir and accordingly, the Assessing Officer completed the accordingly, the Assessing Officer completed the assessment assessment in the name of the assessee through legal heir Shri Jayantilal Gopalbhai name of the assessee through legal heir Shri Jayantilal Gopalbhai name of the assessee through legal heir Shri Jayantilal Gopalbhai Patel. The Assessing Officer obtained the info Patel. The Assessing Officer obtained the information of the sale of rmation of the sale of the property from the Registrar Office of Bhayander, Mumbai and the property from the Registrar Office of Bhayander, Mumbai and the property from the Registrar Office of Bhayander, Mumbai and asked the assessee as why the long term capital gain on the sale of asked the assessee as why the long term capital gain on the sale of asked the assessee as why the long term capital gain on the sale of the property might not be considered keeping the sale consideration the property might not be considered keeping the sale consideration the property might not be considered keeping the sale consideration of Rs.1,53,55,000/- which was the market price of the property market price of the property recorded in the registere recorded in the registered sale agreement. In view of no d sale agreement. In view of no response, in assessment order dated 20.12.2018 passed u/s 147 r.w.s. 143(3) of assessment order dated 20.12.2018 passed u/s 147 r.w.s. 143(3) of assessment order dated 20.12.2018 passed u/s 147 r.w.s. 143(3) of the Act, the Assessing Officer considered the entire amount as long the Assessing Officer considered the entire amount as long the Assessing Officer considered the entire amount as long term capital gain on t term capital gain on the sale of the property. The assessee preferred The assessee preferred appeal before the Ld. CIT(A) and challenged the reassessment appeal before the Ld. CIT(A) and challenged the reassessment appeal before the Ld. CIT(A) and challenged the reassessment proceedings for the reason that other heirs were not made part of proceedings for the reason that other heirs were not made part of proceedings for the reason that other heirs were not made part of the reassessment proceedings. The assessee also challenged the the reassessment proceedings. The assessee also challenged the the reassessment proceedings. The assessee also challenged the addition on merit on three grounds on three grounds, firstly, the sale consideration of , the sale consideration of Rs.1,53,55,0000/- was received by the two seller part was received by the two seller part was received by the two seller parties and one confirming party and separate sale consideration were noted in the and separate sale consideration were noted in the and separate sale consideration were noted in the agreement in relation to both parties, agreement in relation to both parties, therefore, only part of therefore, only part of concerned sale consideration d sale consideration should have been assessed in the should have been assessed in the hands of the assessee because. hands of the assessee because. Secondly, in the agreement agreement, it is stated that first cheque was received on stated that first cheque was received on 25.10.2005; 25.10.2005; therefore property could be value property could be valued at the rate for financial year 2005 at the rate for financial year 2005-06 instead of valuation taken by the stamp duty authorities for valuation taken by the stamp duty authorities for valuation taken by the stamp duty authorities for financial year 2010- -11 i.e. corresponding to the assessment year 11 i.e. corresponding to the assessment year under consideration. under consideration. Thirdly, the Assessing Officer had not , the Assessing Officer had not considered the indexed cost of the acquisition of the property sold. considered the indexed cost of the acquisition of the property sold. considered the indexed cost of the acquisition of the property sold.
CIT(A) dismissed the grounds challenging validity of 3. The Ld. CIT(A) dismissed the grounds challenging validity of CIT(A) dismissed the grounds challenging validity of the reassessment observing as under: the reassessment observing as under:
“Findings and Decision “Findings and Decision 5.1 The main grounds of appeal taken by the appellant in the grounds of 5.1 The main grounds of appeal taken by the appellant in the grounds of 5.1 The main grounds of appeal taken by the appellant in the grounds of appeal are with regard to issue of validity of notice u/s 148 on a deceased appeal are with regard to issue of validity of notice u/s 148 on a deceased appeal are with regard to issue of validity of notice u/s 148 on a deceased person/appellant and addition of Rs. 1,53,55,000/ person/appellant and addition of Rs. 1,53,55,000/- on account of long on account of long term capital gains. Other grounds of a term capital gains. Other grounds of appeal are incidental and do not ppeal are incidental and do not require any separate adjudication. require any separate adjudication. 5.2 I have gone into the facts of the case. It is observed that an AIR have gone into the facts of the case. It is observed that an AIR have gone into the facts of the case. It is observed that an AIR information was received by the AO stating that the appellant has sold information was received by the AO stating that the appellant has sold information was received by the AO stating that the appellant has sold immovable immovable property property valued valued at at Rs.50,00,000/- Rs.50,00,000/ and and deposited Rs.2,00,000/- and above. The ITS details reflected that the appellant has and above. The ITS details reflected that the appellant has sold immovable property for an amount of Rs.50,00,000/ sold immovable property for an amount of Rs.50,00,000/-. The appellant . The appellant has not even filed his return and was a non has not even filed his return and was a non-filer. In the backdrop of these filer. In the backdrop of these facts, the Assessing off facts, the Assessing officer had every reason to believe that the income of icer had every reason to believe that the income of the appellant has escaped the assessment within the meaning of section the appellant has escaped the assessment within the meaning of section the appellant has escaped the assessment within the meaning of section 147 of the income tax act 1961. Accordingly, the AO issued notice u/s 148 147 of the income tax act 1961. Accordingly, the AO issued notice u/s 148 147 of the income tax act 1961. Accordingly, the AO issued notice u/s 148 dated 26.03.2018, which was received back as unserved. Afte dated 26.03.2018, which was received back as unserved. Afte dated 26.03.2018, which was received back as unserved. Afterwards, notice u/s 148 was a fixed at the last known address by the inspector. I notice u/s 148 was a fixed at the last known address by the inspector. I notice u/s 148 was a fixed at the last known address by the inspector. I have carefully gone into the assessment records containing the have carefully gone into the assessment records containing the have carefully gone into the assessment records containing the submissions made by the appellant in response to various notices issued submissions made by the appellant in response to various notices issued submissions made by the appellant in response to various notices issued during the assessment proceedings and ha during the assessment proceedings and have noted that the appellant has ve noted that the appellant has not fully and truly disclosed the material facts necessary for his not fully and truly disclosed the material facts necessary for his not fully and truly disclosed the material facts necessary for his assessment for the year under consideration. assessment for the year under consideration. In view of the above observations, I do not find any infirmity with the In view of the above observations, I do not find any infirmity with the In view of the above observations, I do not find any infirmity with the reopening of assessment proceedings by t reopening of assessment proceedings by the AO u/s 147 of the Act. Hence, he AO u/s 147 of the Act. Hence, the ground of appeal of the appellant on the issue is hereby dismissed. the ground of appeal of the appellant on the issue is hereby dismissed. the ground of appeal of the appellant on the issue is hereby dismissed.”
4. As far as ground concerning, the merit of the addition the Ld. As far as ground concerning, the merit of the addition the Ld. As far as ground concerning, the merit of the addition the Ld. CIT(A) directed the Assessing Officer CIT(A) directed the Assessing Officer for computing long term computing long term capital gain keeping i capital gain keeping in view objection of the assessee raised in n view objection of the assessee raised in appellate proceedings. The relevant finding of the Ld. CIT(A) is appellate proceedings. The relevant finding of the Ld. CIT(A) is appellate proceedings. The relevant finding of the Ld. CIT(A) is reproduced as under: reproduced as under:
“5.4 I have gone into the findings of the AO as well as contentions and have gone into the findings of the AO as well as contentions and have gone into the findings of the AO as well as contentions and pleas taken by the appellant. As gathered from the fact pleas taken by the appellant. As gathered from the facts indicated in the s indicated in the assessment order, despite affording number of opportunities, the appellant assessment order, despite affording number of opportunities, the appellant assessment order, despite affording number of opportunities, the appellant failed to adduce any documentary evidence in support of his submissions. failed to adduce any documentary evidence in support of his submissions. failed to adduce any documentary evidence in support of his submissions. However, if the appellant failed to submit any information in compliance to However, if the appellant failed to submit any information in compliance to However, if the appellant failed to submit any information in compliance to the notice issued by the AO, the AO cannot frame assessment arbitrarily. It sued by the AO, the AO cannot frame assessment arbitrarily. It sued by the AO, the AO cannot frame assessment arbitrarily. It is incumbent upon the AO to frame best judgement in accordance with the is incumbent upon the AO to frame best judgement in accordance with the is incumbent upon the AO to frame best judgement in accordance with the provisions of Section 144 of the income Tax Act, 1961. The AO should have provisions of Section 144 of the income Tax Act, 1961. The AO should have provisions of Section 144 of the income Tax Act, 1961. The AO should have explored every possibility to determine the ind explored every possibility to determine the indexed cost of the property exed cost of the property sold by the appellant by obtaining the information from revenue authorities sold by the appellant by obtaining the information from revenue authorities sold by the appellant by obtaining the information from revenue authorities regarding the cost of acquisition in the same area during the same time regarding the cost of acquisition in the same area during the same time regarding the cost of acquisition in the same area during the same time period when the said property was purchased by the appellant. It is period when the said property was purchased by the appellant. It is period when the said property was purchased by the appellant. It is indisputable fact that the entire market value in no way can be treated as act that the entire market value in no way can be treated as act that the entire market value in no way can be treated as income from capital gains. The AO is, therefore, directed to compute the income from capital gains. The AO is, therefore, directed to compute the income from capital gains. The AO is, therefore, directed to compute the long term capital gain on the basis of share of property and hence sale long term capital gain on the basis of share of property and hence sale long term capital gain on the basis of share of property and hence sale consideration based on the fair market value attri consideration based on the fair market value attributable to the appellant butable to the appellant after allowing deduction on account of indexed cost of acquisition as well after allowing deduction on account of indexed cost of acquisition as well after allowing deduction on account of indexed cost of acquisition as well as improvement if any incurred by the appellant. Since all correspondence as improvement if any incurred by the appellant. Since all correspondence as improvement if any incurred by the appellant. Since all correspondence was done by the Authorised Representative through Power of Attorney of was done by the Authorised Representative through Power of Attorney of was done by the Authorised Representative through Power of Attorney of Shri Jayantilal Gopalbhai Patel, the assessment order was passed in the ilal Gopalbhai Patel, the assessment order was passed in the ilal Gopalbhai Patel, the assessment order was passed in the name of Shri Jayantilal Gopalbhai Patel (Legal Heir of Late Shri Gopalbhai name of Shri Jayantilal Gopalbhai Patel (Legal Heir of Late Shri Gopalbhai name of Shri Jayantilal Gopalbhai Patel (Legal Heir of Late Shri Gopalbhai Arjan Patel) Further, the appeal order is being passed on the same line as Arjan Patel) Further, the appeal order is being passed on the same line as Arjan Patel) Further, the appeal order is being passed on the same line as all the correspondence during the appellant p all the correspondence during the appellant proceedings has been done by roceedings has been done by the AR in the name of Shri Jayantilal Gopalbhai Patel Legal Heir of Late the AR in the name of Shri Jayantilal Gopalbhai Patel Legal Heir of Late the AR in the name of Shri Jayantilal Gopalbhai Patel Legal Heir of Late Shri Gopal Arjan Patel. Shri Gopal Arjan Patel.”
Before us, the Ld. counsel for the assessee mainly challenged Before us, the Ld. counsel for the assessee mainly challenged Before us, the Ld. counsel for the assessee mainly challenged the validity of the reassessment proceedings and submitted that the the validity of the reassessment proceedings and submitted that t the validity of the reassessment proceedings and submitted that t Ld. CIT(A) should have issued notice u/s 148 Ld. CIT(A) should have issued notice u/s 148 to all the legal heirs all the legal heirs of the diseased and therefore, not issuing and service notice u/s of the diseased and therefore, not issuing and service notice u/s of the diseased and therefore, not issuing and service notice u/s 148 of the Act to all the legal heirs 148 of the Act to all the legal heirs, has rendered the assessment has rendered the assessment proceedings void. He further submitted that the Ld. . He further submitted that the Ld. CIT(A) has not . He further submitted that the Ld. considered the additional evidence filed by the assessee during the considered the additional evidence filed by the assessee during the considered the additional evidence filed by the assessee during the assessment proceedings. He also assailed the impugned order and assessment proceedings. He also assailed the impugned order and assessment proceedings. He also assailed the impugned order and submitted that the impugned order is not a speaking order despite submitted that the impugned order is not a speaking order despite submitted that the impugned order is not a speaking order despite filing of the factual details. filing of the factual details.
On the contrary, the Ld. Departmental Representative (DR) contrary, the Ld. Departmental Representative (DR) contrary, the Ld. Departmental Representative (DR) relied on the order of the lower authorities. relied on the order of the lower authorities.
We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the We have heard rival submission of the parties and perused the relevant material on record. In our opinion, the order of the Ld. relevant material on record. In our opinion, the order of the Ld. relevant material on record. In our opinion, the order of the Ld. CIT(A) is not sustainable i CIT(A) is not sustainable in law because of the following reasons n law because of the following reasons: (i) the Ld. CIT(A) has passed the impugned order in the name of the the Ld. CIT(A) has passed the impugned order in the name of the the Ld. CIT(A) has passed the impugned order in the name of the assessee Shri Gopal Arjan Bhai Patel assessee Shri Gopal Arjan Bhai Patel, whereas the assessee had whereas the assessee had already demised and was being represented by the legal heir Shri already demised and was being represented by the legal heir Shri already demised and was being represented by the legal heir Shri Jayantilal Gopalbhai Jayantilal Gopalbhai Patel, thus order passed on nonexistent or thus order passed on nonexistent or dead person is liable to set aside dead person is liable to set aside (ii) as far as issue on merit is (ii) as far as issue on merit is concerned, the Ld. CIT(A) has restored the issue to the file of the the Ld. CIT(A) has restored the issue to the file of the the Ld. CIT(A) has restored the issue to the file of the Assessing Officer with the directions to dispose off the issue keeping Assessing Officer with the directions to dispose off the issue keeping Assessing Officer with the directions to dispose off the issue keeping in view objections of the assessee. In our opinion under the of the assessee. In our opinion under the provisions of section 250 of the Act, the Ld. CIT(A) does not have provisions of section 250 of the Act, the Ld. CIT(A) does not have provisions of section 250 of the Act, the Ld. CIT(A) does not have any authority for restoring the issue back to the Assessing Officer any authority for restoring the issue back to the Assessing Officer any authority for restoring the issue back to the Assessing Officer for adjudication on merit. I for adjudication on merit. If required the Ld. CIT(A) could have f required the Ld. CIT(A) could have called for a remand report called for a remand report from the Assessing Officer on the from the Assessing Officer on the additional evidences which were filed by the assessee following rule additional evidences which were filed by the assessee following rule additional evidences which were filed by the assessee following rule 46A of income-tax Rules, 1962 tax Rules, 1962, (iii) the Ld. CIT(A) has not disposed , (iii) the Ld. CIT(A) has not disposed off the legal objection ra off the legal objection raised by the assessee and ised by the assessee and summarily rejected without proper ed without proper reasoning on the grounds raised by the the grounds raised by the assessee, particularly, non particularly, non-service of the notice on other legal heir service of the notice on other legal heirs. Though in view of the the fact that Shri Jayantilal Patel has filed return Shri Jayantilal Patel has filed return of income in the capacity of legal heir of income in the capacity of legal heir, so we do not find any we do not find any irregularity in completing the assessment in the name of the irregularity in completing the assessment in the name of the irregularity in completing the assessment in the name of the assessee through legal heir Shri Jayantilal Patel assessee through legal heir Shri Jayantilal Patel and a and at maximum tax liability in the hand of Shri Jayantilal Patel may be restricted to tax liability in the hand of Shri Jayantilal Patel may be restricted to tax liability in the hand of Shri Jayantilal Patel may be restricted to the extent of the share the extent of the share of the property received by him, however, perty received by him, however, since entire facts in relation of intimation to the other legal heirs since entire facts in relation of intimation to the other legal heirs since entire facts in relation of intimation to the other legal heirs and whether return was filed by Shri Jayantilal Gopalbhai Patel and whether return was filed by Shri Jayantilal Gopalbhai Patel and whether return was filed by Shri Jayantilal Gopalbhai Patel after consent of other legal heirs etc are not available on record, we after consent of other legal heirs etc are not available on record, we after consent of other legal heirs etc are not available on record, we feel it appropriate to set aside the order of the Ld. CIT(A) and restore r of the Ld. CIT(A) and restore the matter back to the file of the Ld. CIT(A) for deciding the issue of the matter back to the file of the Ld. CIT(A) for deciding the issue of the matter back to the file of the Ld. CIT(A) for deciding the issue of the validity of the reassessment as well as issue on merit afresh in the validity of the reassessment as well as issue on meri the validity of the reassessment as well as issue on meri accordance with law, without being biased by any of our accordance with law, without being biased by any of our accordance with law, without being biased by any of our observation above.
In the result, the appeal of the assessee is allowed for 8. In the result, the appeal of the assessee is allowed for In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on nounced in the open Court on 27/08/2024. /08/2024.