SHRI DEVENDRASINH RAMSINH RANA L/H OF LATE SHRI MAHENDRA RAMSINH RANA,BHGARUCH vs. INCOME TAX OFFICER, WARD - 1(3),, BHARUCH

At the outset, we note that appeals filed by the assessee, in for AY.2012-13 is barred by limitation by four (4)

ITA.310 & 311/SRT/2023/AY.2012-13 Devendrasinh Ramsinh Rana days and appeal filed by the assessee in AY.2012-13 is also barred by limitation by three (3) days. The Ld. Counsel for the assessee moved a petition for condonation of delay, requesting the Bench to condone the delay. In this respect, the written submission, made by the ld Counsel, before the Bench, are as follows: “1. Request for condonation of delay in filing of appeal The appeal in is delayed by 4 days and in ITA No. 311/Srt/2023 by 3 days. Affidavit explaining reasons for delay in filing of appeal has already been furnished on 08-08-2023. Brief facts due which appeal is delayed are given below: Sr. Particulars ITA No. 310/Srt/2023 ITA No. 311/Srt/2023 No. 1 Date of order of 26-02-2023 27-02-2023 CIT(A)/NFAC 2 Due date for filing of 27-04-2023 28-04-2023 appeal before the Hon’ble ITAT 3 Date on which appeal fees 24-04-2023 24-04-2023 paid 4 Date on which appeals 24-04-2023 24-04-2023 were sent to chartered accountant stationed at Ahmedabad 5 Date on which appeals 25-04-2023 25-04-2023 reached the office of chartered accountant stationed at Ahmedabad 6 Date on which Chartered 25-04-2023 25-04-2023 Accountant sent the appeal to the office of Tribunal through Speed Post 7 Date on which appeals 01-05-2023 0105-2023 reached the office of the Tribunal and got registered It is submitted that though the appellant is stationed at Bharuch which is nearer to the Surat, the appeals were sent to Ahmedabad to the Chartered Accountant by the appellant as per instructions given by Tax Practioner handling the case of Baroda and therefore, due to postal and transit reasons appeal got delayed. The delay being for without any malafide and bonafide reasons, the same is requested to be condoned. Relevant case laws as relied upon before the Ld. CIT(A) are appearing at Page 37-50 of Paper Book may kindly be considered.”

We have heard both the parties, on this preliminary issue and having regard to the reasons given in the petition for condonation of delay, we condone the minor delay of 4 days and 3 days, in filling these appeals, in and in respectively, and admit these two appeals for hearing.

The Ld. Counsel for the assessee, at the outset submitted that assessee had died long back on 12.11.2014 (vide death certificate attached by the assessee on paper book page No.34). However, assessment order was framed on 27.11.2019 in quantum proceedings. The various notices were sent by the assessing officer on the dead person during the assessment proceedings, and finally the assessment order was framed under section 144 r.w.s. 147 of the Act dated 27.11.2019. On appeal, before ld CIT(A), the legal heirs of the deceased assessee, filed the written submission and argued before the ld CIT(A), that assessment can not be framed on dead person therefore, assessment order passed by the assessing officer may be quashed/cancelled. However, ld CIT(A) did not consider the same.

On merit, ld Counsel submitted that sufficient opportunity was not given to the assessee during the assessment stage, therefore matter may be remitted back to the file of the assessing officer. Apart from the ld Counsel submitted before us written submission containing seven pages, wherein the ld Counsel stated that assessment order ITA.310 & 311/SRT/2023/AY.2012-13 Devendrasinh Ramsinh Rana cannot be framed on dead person. The relevant portion of the written submission, to the extent relevant for our analysis is reproduced below: “2.5 Under these circumstances, appellant requests the Hon’ble Bench to restore the matter back to the file of the Assessing Officer despite the fact that appellant had already expired on 28-10-2014 in the interests of justice or in alternate to allow appeal after taking cognisance of the explanation offered by the appellant/ appellant’s son in the course of assessment proceedings as well as in the course of appellate proceedings.”

On the other hand, Learned Departmental Representative (Ld. DR) for the Revenue submitted that assessee has himself wrote the letter during the assessment proceeding, therefore where is the question that assessee has died? The ld. DR for the Revenue invited our attention towards page no.34 of the paper book and stated that the death certificate was not submitted before the assessee. However, the death certificate was submitted before the ld CIT(A), therefore matter may be remitted back to the file of the assessing officer. On merit, ld DR argued that assessee has not submitted sufficient evidences/documents to prove its claim therefore addition made by the assessing officer may be sustained.

We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that assessee has produced death certificate before the ld CIT(A), which is reproduced below:

We note that during the appellate proceedings, the legal heirs of deceased assessee, have argued that since assessment was framed on dead person, therefore assessment order may be quashed. The relevant written submission filed by the legal heir before ld CIT(A) are reproduced below: “Appellant expired on 28th October, 2014 for which death was registered with the authorities on 12th November, 2014. Notice u/s 148 was issued on the deceased appellant on 29.03.2019 i.e. almost 4 ½ years after the death of the appellant Notice u/s 148 was issued on the appellant was not live on the case of issuance of notice u/s 148 and therefore, question of responding to such notice by the deceased appellant was out of place.”

It is a settled position of law that assessing officer cannot frame the assessment on dead person, for this reliance can be placed on the decision of the Coordinate Bench of ITAT, Surat in the case of M/s. Maloo Construction Pvt. Ltd, Vide & 402/SRT/2018, for Assessment Year 2007-08, wherein it was held that continuation of the legal proceeding under the Income Tax Act, in the name of dead person or company, is without authority of law. Thus, we note that assessment cannot be made on the person/company who has died/dissolved and this issue is no longer res integra. For this reliance can be placed on the judgment of the Hon’ble Supreme Court in the case of PCIT vs. Maruti Suzuki India Ltd. 107 Taxmann.com 375 (SC). Therefore, respectfully following the binding precedent of Hon`ble Supreme Court in the case of Maruti Suzuki India Ltd. (Supra), we quash the assessment order passed by the assessing officer, dated 27.11.2019.

In the result, appeal filed by the assessee in is allowed.

Now coming to assessee`s appeal in 2012-13. This appeal of the assessee relates to penalty under section 271(1)(c) of the Act. Since we have quashed the ITA.310 & 311/SRT/2023/AY.2012-13 Devendrasinh Ramsinh Rana quantum assessment, vide para No. 11 and 12 of this order, therefore the penalty under section 271(1)(c) of the Act, does not have any leg to stand, hence we delete the penalty.

In the result, appeal filed by the assessee in , is allowed.

In the combined result, both the appeals of the assessee are allowed.