FALGUN KANTIBHAI PATEL REPRESENTED BY L/H MINAXI FALGUN PATEL,VADODARA vs. INCOME TAX OFFICER, WARD - 2(1), BHARUCH

Aggrieved by the order of penalty, the legal heir of assessee/appellant filed appeal before the ld. CIT(A). Before the ld. CIT(A), legal heir of assessee/appellant submitted that the assessee died on 18/05/2019, copy of death certificate was attached. The legal heir of assessee/appellant submitted that the penalty was being levied against a dead person and such penalty order is not sustainable. On merit, the Falgun Kantibhai Patel Vs ITO legal heir of assessee/appellant submitted that the assessee has already applied for Vivad Se Vishwas Scheme, 2020 for which Form No. 5 has already been issue and prayed for setting aside the order of penalty.

The ld. CIT(A) after considering the submission of legal heir of assessee/appellant held that Form-5 was issued on27/04/2021 in respect of disputed tax and not in respect of disputed penalty under Section 271(1)(b) of the Act and confirmed the penalty. Further aggrieved, the legal heir of assessee/appellant has filed present appeal before this Tribunal.

Notice of appeal was served upon the legal heir of assessee/appellant. The legal heir of assessee/appellant has filed their written submission and prayed to decide the appeal on the basis of their written submission.

I have seen the submission of legal heir of assessee/appellant. In her written the appellant submitted that the ld. CIT(A) has not considered the submission which was coupled with the various evidences. The penalty order as well as order of ld. CIT(A) was passed in haste. The legal heir of assessee/appellant specifically stated that the assessee died much before the date of penalty order. The assessee expired on 18/05/2019 and such fact was informed to the Assessing Officer vide letter dated 31/05/2021 i.e. before passing order on 13/09/2021. The assessee relied upon the decisions of Hon'ble Jurisdictional High Court in Jaydeepkumar Dhirajlal Thakkar Vs ITO in Special Civil Application No. Falgun Kantibhai Patel Vs ITO 17186 of 2017 dated 19/09/2017 and in Rasid Lala Vs ITO in Special Civil Application No. 18987 of 2016 dated 15/11/2016. The legal heir of assessee/appellant also submitted that in the quantum assessment, the assessee subsequently complied and assessment order was passed under Section 143(3) of the Act.

On the other hand, the ld. Sr. DR for the revenue supported the orders of the lower authorities.

I have considered the submissions of both the parties and perused the record carefully. I find that a very short point in involved in the present appeal. There is no dispute that the assessee informed the ld. CIT(A) about the death of assessee which has been recorded in para 4 of his order. Though, the appellant in her submissions specifically submitted that the assessing officer was also informed about the death of assessee, however, copy of such application is not filed on record. Facts remained the same that before ld CIT(A) the appellant in her statement of facts as well as in grounds of appeal raised specific plea that the assessee died much before the passing of penalty order, yet the ld CIT(A) has not taken any remedial action. Admittedly, the assessee died much before passing of penalty order. The assessee died on 18/05/2019, however, the penalty order was passed on 13/09/2021. It is settled position under law that order passed against a dead person is