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26-11-2019, Bhura Ram, Section 144, 147, 159, Tribunal Jaipur

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1 week 5 days ago #11618 by amit
Section - 144, 147, 159, 159(2)(a), 148
Order Date - 26-11-2019
Favouring - Assessee
Court - Tribunal Jaipur
Appellant - Bhura Ram
Respondent - ITO
Justice - VIJAY PAL RAO, JM & VIKRAM SINGH YADAV, AM
Citation - 1219Taxpundit7
Appeal No. - ITA No. 989/JP/2015
Asstt. Year - 2006-07

Order

PER : VIKRAM SINGH YADAV, A.M.

This is an appeal filed by the assessee against the order of ld. CIT(A)-3, Jaipur dated 18.09.2015 for the assessment year 2006-07 wherein the assessee has taken the following grounds of appeal:-

“1. The very action taken u/s 147 r/w 148 is bad in law without jurisdiction and being void ab-initio, the same kindly be quashed. Consequently the impugned assessment framed u/s 144/148 dated 11.02.2014 also kindly be quashed.

2. The impugned additions and disallowances made in the order u/s 147/144 of the Act dated 11.02.2014 are bad in law and on facts of the case, for want of jurisdiction and various other reasons and hence the same kindly be deleted.

3.1 The ld. CIT(A) erred in law as well as on the facts of the case in confirming the assessment made u/s 144 by the AO without affording adequate and reasonable opportunity and even without complying with the mandatory statutory requirement of law. The impugned order so framed in gross breach of natural justice and confirmed by the Id. CIT(A), kindly be quashed.

3.2 The ld. CIT(A) erred in law as well as on the facts of the case in confirming the action of the AO alleging that notice/s u/s 142(1) was/were served upon the assessee which, remained un-complied. However, such allegation/s, is totally contrary to the facts in as much as no such notice was ever served upon the assessee or anyone else duly authorized by the appellant, in this behalf.

4. Rs.53,10,110 -: The ld. CIT(A) erred in law as well as on the facts of the case in confirming the addition made by the AO of Rs.53,10,110 - as Long Term Capital Gain. The addition so made and confirmed by the ld. CIT(A), is contrary to the provisions of law and facts of the case. Hence, the same kindly be deleted in full.

5. The AO & ld. CIT(A) both erred in law as well as on the facts of the case in charging interest u/s 234A, 234B, 234C & 234D of the Act. The appellant totally denies its liability of charging of any such interest. The interest so charged, being contrary to the provisions of law and facts, kindly be deleted in full.”

2. Briefly stated, the facts of the case are that the assessment in the case of deceased assessee was completed u/s 147 read with section 144 on 11.02.2014 wherein the long term capital gain on sale agricultural land amounting to Rs. 53,10,106/- was brought to tax by the Assessing Officer. In appeal, the same has been confirmed by the ld. CIT(A). Hence, the present appeal through the legal heirs of the deceased assessee which has come up for adjudication before us.

3. In ground Nos. 1 and 2, the legal heirs of the deceased assessee assessee have challenged the assumption of jurisdiction u/s 147 by issuing notice u/s 148 on the deceased assessee.

4. In this regard, the ld. AR submitted that the issuance of valid notice is a foundation for the valid re-assessment proceedings. The notice prescribed u/s 148 is not a mere procedural requirement, but is a condition precedent to the validity of reassessment proceedings If no notice is issued or if the notice issues is shown to be invalid, the proceedings initiated by the Assessing Officer would be invalid and void. In the instant case, it was submitted that the proceedings u/s 147 were initiated against the dead person who had expired on 26.11.2008 i.e. much prior to the issuance of notice u/s 148 on 20.03.2013. It was submitted that the impugned notice having been issued in the name of a dead person was an invalid notice and consequently such proceedings are void ab initio. It was further submitted that the AO did not issue any notice u/s 148 of the Act or 143(2) of the Act in the name of the legal heirs. Therefore, the assessment framed by the AO on the basis of the notice issued u/s 148 of the Act in the name of the deceased assessee was invalid and void ab initio.

5. Another contention raised by the ld. AR was that impugned notice u/s 148 dated 20.03.2013 was never served on the deceased assessee nor on his

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