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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Uday H. Sanghavi Income Tax Officer Legal Heir of late shri Ward 30(1)(4) harshadray V. Sanghavi 302 C-10, Pratyakshkar Bhvan, BKC Indraprastha A-1, Raheja Bandra (E) Vs. Township Jitendra Rd. Malad Mumbai-51 (W) Mumbai-57 PAN No. ABEPs9527M Appellant .. Respondent Assessee by .. Shri Sanjay R. Parikh, AR Revenue by .. Shri Purushottam Kumar, DR Date of hearing .. 24-05-2017 Date of pronouncement .. 07-06-2017 O R D E R PER MAHAVIR SINGH, JM:
This appeal by the assessee is arising out of the order of CIT(A)-41, Mumbai, in appeal No. CIT(A)-41/IT-194/15-16 dated 27-01-2017. The Assessment was framed by ITO Ward 30(1)(4), Mumbai for the A.Y. 2008-09 vide order dated 14-03-2015 u/s 143(3) read with section 147 of the Income Tax Act, 1961 (hereinafter ‘the Act’).
At the outset, the learned counsel for the assessee stated that the assessment order framed by the AO is bad in law as the same is passed on dead person. For this he raised following ground: -
“A) Holding that Order not Bad in law
1) The learned Commissioner of Income Tax (Appeals) - 41, Mumbai [CIT(A)] erred on facts and in law in holding that the order passed by the Income Tax Officer - 30(1)(4), Mumbai (AO) in the name of the deceased
Uday H. Snghavi A.Y: 09-10 assesse i.e. Late Shri Harshadray V. Sanghavi was not bad in law.
2) The appellant prays that your honour hold that the assessment order passed in the name of Late Shri Harshadray V. Sanghavi is bad in law.”
Brief facts narrated by the assessee are that the assessee Shri Harshadray V. Sanghvi died on 27-12-2014 as per the finding recorded by the CIT(A) in Para 7.1 which reads as under: -
“7.1 The assessee expired on 27/12/2014. It is a fact that the A/R of the assessee has informed the AO regarding death of the assessee vide order sheet noting dated 12-01-2015. In response, the AO asked the AI vide order sheet noting dated 12/01/2015 to file details of legal heir along with necessary documents. Next date of hearing was fixed on 23/01/2015.”
According to the assessee, the AO was informed regarding death of assessee and he noted this fact vide order sheet dated 12-01-2015. Finally, assessment was framed under section 143(3) read with section 147 of the Act vide order dated 04-03-2015. Despite the fact that the AO was aware that the assessee is no more assessment was frame don dead person and even the demand notice under section 156 is in the name of dead person dated 04-03-2015. The CIT(A) after considering these facts and held it to be typographically mistake by observing in Para 7.8 and 7.9 as under: -
“7.8 The assessment order has been passed in the name of " Harshadray V. Sanghavi". The only irregularity is that it should have been in the name of" Late Harshadray V. Sanghavi through legal heir -------------- ". The details of the legal Heirs was not Page 2 of 4
Uday H. Snghavi A.Y: 09-10 filed before the AO in spite of specific direction. Therefore, the AO was not in a position to mention the same. Moreover, this was only a typographical mistake. In all fairness, the Assessing Officer intended to make assessment on the assessee through its legal heir and for that purpose he asked the details of legal heir along with necessary documents which was not filed by the A/R. In absence of details, it would be difficult to write name of anyone.
7.9 Since it was an inadvertent and typographical mistake committed by the Assessing Officer, the assessment made by the Assessing Officer is hereby treated as an assessment on Late Harshadray V. Sanghavi through legal heir Uday H. Sanghvi. The error is only a technical irregularly and it is worthwhile to mention here that the CIT(A)'s powers are coterminous with that of Assessing Officer and therefore C1T(A) has all powers to make rectification required to correct any technical mistake in the assessment order by the AO. In view of above, the Additional ground raised by the appellant to treat the assessment order in the name of deceased, as bad in law is hereby rejected.”
Aggrieved, now assessee is in appeal before Tribunal.
I have heard the rival contentions and gone through the facts and circumstances of the case. Admittedly, the assessee died on 27-12-2014 and this was informed to the AO and he recorded this fact vide order sheet note dated 12- 01-2015. Finally, on 04-03-2015, the AO passed an order on dead person and even demand notice under section 156 of the Act was also in the name of dead persons Harshadray V. Sanghvi. In such circumstances, I am of the view that the Uday H. Snghavi A.Y: 09-10 assessment order passed on dead person is bad in law and hence, the same is quashed. The appeal of the assessee is allowed on this issue.
Since, I have already quashed the assessment framed on dead person, I need not go into the merits of the case.
In the result, the appeal of assessee is allowed. Order pronounced in the open court on 07-06-2017.