AKASH JAIN LEGAL HEIR SMT. RAJ RANI CHIMPIWARA,DEOBAND vs. ITO WARD-3(3)(4) , DEOBAND
No AI summary yet for this case.
Income Tax Appellate Tribunal, DELHI BENCH “SMC”: NEW DELHI
Before: SHRI KUL BHARAT & DR. B.R.R. KUMAR
1 ITA No. 2641/Del/2022 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “SMC”: NEW DELHI
BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND DR. B.R.R. KUMAR, ACCOUNTANT MEMBER
ITA No. 2641/DEL/2022 [Assessment Year: 2014-15
Akash Jain Vs Income-tax Officer, Legal heir Smt. Raj Rani Ward-3(3)(4),Deoband. Chimpiwara, Deoband.
PAN-DDWPR5874K APPELLANT RESPONDENT Assessee represented by Shri Ankit Gupta, Adv. Department represented by Shri Om Parkash, Sr. DR Date of hearing 19.09.2023 Date of pronouncement 27.09.2023
O R D E R PER KUL BHARAT, JM:
This appeal, by the assessee, is directed against the order of the learned
Commissioner of Income-tax (Appeals), Natioinal Faceless Appeal Centre
(NFAC), Delhi, dated 30.07.2022, pertaining to the assessment year 2014-15. The
assessee has raised following grounds of appeal:
“1. That the notice issued U/s 148 and re-assessment proceeding initiated U/s 147 are bad in law, without jurisdiction and barred by time limitation. The NFAC has erred in upholding the same.
2 ITA No. 2641/Del/2022 2. That the NFAC has erred in dismissing the appeal in exparty manner and also erred in upholding the reassessment order passed U/s 147/14A~by the assessing 1 officer, which is illegal, bad in law and without ] jurisdiction
That, the NFAC has erred in not passing appellant order on the deceased person, which is illegal, bad in law and without jurisdiction
3. That, the NFAC has erred in not deciding all the Ground of appeal raised and just decided the appeal of merits, which is illegal, bad in law and unjustified.
That, NAFC has failed to appreciate that the notice U/s 148 was issued and the re-assessment proceeding was conducted in the name and PAN No. of the assessee and the re-assessment was passed in the capacity of the Legal Heir of Shri. Ashok Kumar Jain, which is illegal, bad in law and without jurisdiction
That, NAFC has failed to appreciate that the no reason to belief was recorded, before the assumption of jurisdiction U/s 147/148 of the Act, hence, the same whole proceedings is illegal, bad in law and without jurisdiction
That, no proper approval as per the provision of section 151 of the Income Tax Act, 1961 has been taken and given by the Principle C1T, Dehradun, or if any approval is given, than the same is mechanical in nature and without application of mind, hence, the proceedings are bad in law and illegal. The NFAC has upholding the same
That, the NFAC has erred in upholding the action of the assessing officer, in completing the re-assessment on Income of Rs.38,33,369.00against the Return of Income declaring income of NIL. The additions/disallowances made at Rs.35,72,539.00on account of Long term capital gain are illegal, unjust, highly excessive
That, the NFAC and Assessing officer has erred in making the addition/disallowance of Rs.35,72,539.00on account of Long term Capital Gain which is highly arbitrary, unjustified and against the facts of the case.
3 ITA No. 2641/Del/2022 10. That, the assessing officer as well as NFAC has erred in taking the fair market value as per section 50C of the 10) ACT, without appreciating, that, the actual market value not morethan at Rs.50,66,667.00, hence, the provision of section 50C is not applicable to the ease of assessee
That, the assessing officer as well as NFAC has erred in disallowing, the deduction of section 54F at Rs. 10,00,000.00 without appreciating the fact, that, the 11) assessee has constructed residential house. The disallowance of deduction U/s 54F is purely based on surmises and conjecture without appreciating the facts and circumstances of the case
That, the assessing officer as well as NFAC has erred in 12) not allowing the Development Expenses of j Rs.25,68,399.00 incurred, during the previous years, which have been capitalized by the assessee appellant, without appreciating the actual facts and circumstances of the case.
That, the assessing officer as well as NFAC has failed to appreciate, that, if there is any legitimate claim of the assessee under the provisions of ACT, than the assessing officer is bound to allow the benefit of the same to the assessee.
The NFAC has failed to appreciate the documentary evidences filed by the assessee and made the addition/ disallowances without any basis and reasons, which is highly presumptive, arbitrary, excessive and unjust
The NFAC has erred in making the several observations, in the assessment orders, which are purely based on presumption, surmises and conjectures and against the material available on record
That the explanation given and evidence produced, material placed and available on record have not been properly considered and judicially interpreted and the same do not justify the additions/ allowances made.
The Appellant craves leave to add, amend, alter and or modify the grounds of appeal of the said appeal.”
4 ITA No. 2641/Del/2022 2. Facts, in brief, are that in this case the assessment was reopened u/s 147 of
the Income-tax Act, 1961, hereinafter referred to as the “Act” and a notice u/s 148
of the Act was issued on 29.03.2018. In response to the notice the assessee filed
return of income. However, thereafter there was no compliance on behalf of the
assessee in respect of statutory notices. Therefore, the AO framed the assessment
u/s 144 read with Section 147 of the Act, making addition of Rs. 35,72,539/- on
account of long term capital gain. Aggrieved against this the assessee preferred
appeal before the learned CIT(A). Before the learned CIT(A) also there was no
representation on behalf of the assessee, therefore, the appeal of the assessee was
dismissed. Now the assessee is in appeal before this Tribunal.
The present appeal is being prosecuted on behalf of the legal heir of Shri
Ashok Kumar Jain.
Ground nos. 1 to 7 are against the legality of assessment order. Learned
counsel of the assessee at the outset submitted that the initiation of proceedings in
the present appeal is bad in law as the notice u/s 148 of the Act was issued on
29.03.2018 addressing Smt. Raj Rani in individual capacity. In response thereof
Smt. Raj Rani filed her return of income in individual capacity. The assessment
was framed in the capacity of legal heir. He, therefore, contended that the initiation
5 ITA No. 2641/Del/2022 itself is bad in law and, therefore subsequent proceedings would not survive, even
if the action is in accordance with law.
On the other hand, learned DR supported the orders of the authorities below.
However, he fairly conceded that the notice u/s 148 dated 29.03.2018, which also
finds mention in the assessment order, is addressed to Smt. Raj Rani w/o Shri
Ashok Kumar Jain. Learned DR submitted that it is a typographical error which
should not vitiate the entire proceedings.
We have heard learned representatives of the parties and perused the
material available on record. There is no dispute with regard to the fact that the
notice u/s 148 was issued in individual capacity and the assessment was framed in
the capacity of legal heir. Furthermore, interestingly, the AO in the reasons
recorded has categorically mentioned the assessee as “Smt. Raj Rani L/H Late Sh.
Ashok Kumar Jain”. However, in the notice u/s 148 the same AO writes “Raj Rani
w/o Ashok Kumar Jain” and the assessee in response to such notice filed her return
of income in the individual capacity. This fact is not rebutted by the Revenue.
Since the notice does not meet the requirement of law, therefore, we are of the
considered view that the re-opening of assessment is bad in law and the impugned
assessment made by the AO cannot be sustained. Accordingly, on facts and
6 ITA No. 2641/Del/2022 circumstances of the present case, we are constrained to quash the impugned
assessment.
Since the assessment has been quashed the remaining grounds qua merit of
addition have become academic nature only, same are not being adjudicated.
Consequently, appeal of the assessee is partly allowed. Before parting it is clarified
that we have quashed the assessment proceedings on the ground that notice u/s 148
of the Act, dated 29.03.2018, is bad in law. The Revenue would be at liberty to
issue a fresh notice against the legal heirs of assessee and pass assessment afresh if
permitted under law.
In the result, assessee’s appeal stands partly allowed.
Order pronounced in open court on 27.09.2023.
Sd/- Sd/- (DR. B.R.R. KUMAR ) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI
