TMI Blog2023 (2) TMI 259X X X X Extracts X X X X X X X X Extracts X X X X ..... essee. The notice of penalty was served in the name of dead person; no notice was served on the legal heirs of the deceased assessee. Such notices issued in the name of dead person, is not curable even by applying provisions of Section 292B as has been held in Sumit Balkrishna Gupta [ 2019 (2) TMI 1209 - BOMBAY HIGH COURT] and.Vikram Singh [ 2018 (1) TMI 1115 - DELHI HIGH COURT] and Rajendra Kumar Sehgal [ 2018 (12) TMI 697 - DELHI HIGH COURT] By referring the aforesaid decision, the ld. CIT(A) held that the penalty levied on deceased person is null and void. In our view the order passed by ld CIT(A) does not require any interference, which we affirm. - Decided against revenue. - ITA No. 218/Srt/2022 - - - Dated:- 30-1-2023 - Shri Pawan Singh, Judicial Member And Dr. Arjun Lal Saini, Accountant Member For the Department : Shri Vinod Kumar, Sr.DR For the Assessee : Shri Rasesh Shah, CA ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the Revenue is directed against the order of learned Commissioner of Income Tax (Appeals)-4, Surat (in short, the ld. CIT(A) dated 06/05/2022 for the Assessment year 2011- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Sec.271E of the Act on the ground that the penalty levied on the deceased person becomes null and void, without appreciating the fact that the legal heir of the deceased assessee has not raised any objections during the course of penalty proceedings and hence the issue of notice in the name of the deceased assessee was only a technical defect which would be corrected under Sec.292B of the Act. (v) On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in deleting the penalty levied of Rs.1,00,00,000/- under Sec.271E of the Act by observed that when the loan taken was assessed in the hands of the HUF, the penalty for repayment of such loan cannot be levied in the hands of the assessee i.e. Amritlal Patel (Individual) without appreciating the fact that the penalty was levied in respect of repayment of loan of Rs.1 Cr. and not in respect of cash loan of Rs.5 Cr. (vi) It is, therefore, prayed that the order the Ld. ClT(A)-4, Surat may be set aside and that of the AO may be restored to the above extent. (vii) The appellant craves leave to add, alter, amend and/or withdraw any ground(s) of appeal either before or during the course of hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment was filed. The assessee stated that despite the fact the assessment was framed in the name of legal heirs on 30/12/2017, show cause notice proposing levy of penalty under Section 271E was issued in the name of deceased on 05/03/2018. The assessee stated that penalty order in the name of deceased person is void ab initio and liable to be quashed. 4. The ld. CIT(A) after considering the submission of assessee noted that the assessee has expired on 30/01/2017 whereas the penalty order was passed on 30/08/2018. The assessment order under Section 143(3)/153A of the Act was passed on 30/12/2017 in the name of legal heirs of assessee. The notice was served in the name of dead person. In such cases, notice was to be issued and served on the legal heirs of the deceased assessee. Such notices issued in the name of dead person, is not curable even by applying provisions of Section 292B as has been held by the Hon ble Bombay High Court in Sumit Balkrishna Gupta Vs ACIT 103 taxmann.com 188 (Bom) and by the Hon ble Jurisdictional High Court in Vikram Singh Vs Union of India 401 ITR 302 and Hon ble Delhi High Court in Rajendra Kumar Sehgal Vs ITO 101 taxmann.com 233. By referring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 143(3) of the Act. No addition of cash loan was made in the hand of individual assessee. When the loan was taken in the hand of HUF, the penalty for repayment of loan cannot be levied in the hands of assessee individual. Therefore, the penalty was also deleted on merit. Further aggrieved by the order of ld. CIT(A), the Revenue has filed the present appeal before this Tribunal. 7. We have heard the submissions of the learned Senior departmental representative (ld. Sr. DR) for the revenue and the ld. AR of the assessee and have gone through the orders of the authorities below carefully. The ld. Sr. DR for the revenue submits that the representative of the assessee never informed about the death of assessee either at the time of issuance of show cause notice or during the penalty proceedings. Such fact was not brought to the notice of ld. JCIT, therefore, penalty was levied on the assessee. In para 6.1 of penalty order, it is clearly mentioned that repeated notice was issued and served and the ld. AR of the assessee sought adjournment instead of disclosing that the assessee has died. 8. On the other hand, the ld. AR of the assessee supported the order of ld. CIT(A). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. The reply of assessee was not accepted by the ld. JCIT. The ld. JCIT held that the name of assessee appeared in the master ledger of Asharam and balance was receivables Rs. 5.00 crores and on the basis of which the ld. JCIT held that repayment of Rs. 1.00 crore was on account of loan repayment which was made in cash which attracts provisions of Section 271E r.w.s. 269T of the Act. The ld. JCIT accordingly levied penalty of Rs. 1.00 crore i.e. equal amount of loan repaid in cash. The ld. CIT(A) deleted the penalty by taking a view that he has verified the submission of assessee regarding the taxing of the cash loans from Asharam Bapu Group. Out of Rs. 5.00 crores taken as cash loan, as found from the evidence seized during the course of search, the HUF of assessee offered Rs. 2.00 crores in IDS and balance of Rs. 3.30 crores were brought to tax under Section 69A in the hands of HUF of assessee in the assessment completed by ITO, Ward 1(3)(1), Surat order dated 21/12/2019 for A.Y. 2017-18 under Section 143(3) of the Act. No addition of cash loan was made in the hand of individual assessee. When the loan was taken in the hand of HUF, the penalty for repayment of loan cannot be l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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