TMI Blog2023 (12) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... essee (Late Smt. Sita) was only beneficiary and as per provision of law AO cannot taxed the notional income in the hands of the assessee. The similar finding is confirmed by the ITAT, where in the Coordinate Bench in favour of the assessee (Late Smt. Sita) holding that the notice u/s 148 of the Act has not been served to the legal heirs of the deceased and the said defect is not curable. Therefore, even after taking on record the legal heirs of assessee (Late Smt. Sita) the moot question will remain same. Nothing to deviate from the finding of the coordinate bench already recorded and the revenue here also in a very causal approach not assisted to the bench and therefore, at this stage we record the legal heirs of late Smt. Sita and confirm the earlier order. Thus, the decision of the Bench taken vide order dated 19.03.2018 will not require any reconsideration. Even though after taking on record the legal heirs presently, as per direction of the Hon ble High Court. We do not see any scope of making any error in that finding on the judgment of the Coordinate Bench and in the light of fact as per direction of the Hon ble jurisdictional High Court the legal heirs are placed on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er substitution of the person representing the estate of the deceased if any, in accordance with law. 8. The appeal so also the application (No. 2/19) stand disposed of accordingly. 2. The brief fact in this case is that a notice u/s 148 of the Act was issued on 20.06.2012 after recording reason and was served to legal heirs Smt. Sita L/H of Shri Jethmal Binawara. Thus, it is noted that the case of late Shri Jethmal Binwara was reopened wherein the legal heirs was considered Smt. Sita. The assessment was finally made upon the Smt. Sita as a legal heir she filed an appeal before the ld. CIT(A). The appeal filed by Smt. Sita was allowed wherein this finding the ld. CIT(A) is as under:- 7. Even on merits also, I find that the AO failed to bring on record any evidence whatsoever which could even remotely suggest that the appellant had some benefit on account of transaction entered by late Sh. Jethmal Binawara, It is fact that as per court's order dated 31-07-2009, the appellant and her sister Smt. Sanjana only received Rs. 21,355/- which was equally divided between both of them. Nothing substantial has been received by the appellant from the property of Sh. Jethmal Binaw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TA No. 720/Jodh/1993 wherein vide order dated 07.01.2004 reported in 83 TTJ 590, the ITAT Jodhpur Bench had held that notice u/s 148 must be issued to all the legal heirs so as to make the consequent assessment valid. The Ld. Commissioner of Income Tax (A) has also noted that the Assessing Officer had failed to bring on record any evidence whatsoever which could even remotely suggest that the assessee had received some benefit on account of transaction entered into by late Shri Jethmal Binwara. Ld. Commissioner of Income Tax (A) has noted that as per the Court's order dated 31.07.2009, the assessee and her sister Smt. Sanjana only received Rs. 21,355/- which was equally divided between both of them and nothing substantial has been received from the property of Shri Jethmal Binwara. The Ld. Commissioner of Income Tax (A) has also observed that no inquiry was conducted by the Assessing Officer as to who was the actual beneficiary of the transaction entered into by Shri Jethmal Binwara and further that the entire assessment has been framed in a very casual manner without establishing that the assessee being the legal heir was the only beneficiary. 5.2 On facts, we find no reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter is remanded to the ITAT to pass the order afresh after substitution of the person representing the estate of the deceased if any, in accordance with law. 5. Before us when the matter is listed for hearing. From the side of Late Smt. Sita Badoliya in accordance with the direction of the Hon ble Jurisdictional High Court, the content of the application reads is as under:- Sub:- Application for bringing the legal heirs of late Smt. Sita on record. Ref:- Direction of Hon ble Jurisdictional High Court of Rajasthan, Hon ble Sir s In compliance to direction of Hon ble Jurisdictional High Court of Rajasthan, I have the honour to submits as under:- 1. That after death of Smt. Sita, the following legal representative of late Smt. Sita:- a. Shri Parkash Chand Son b. Shri Nemi Chand Son c. Smt Manju W/o Late Rajendra Kumar Wife of late sons d. Smt. Mangala W/o Late Prem Chand Wife of late sons e. Smt. Santosh Daughter f. Smt. Leela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jethmal Binwara (deceased) and the notice u/s. 148 of the Act was served upon the L/H Smt. Sita Badoliya and finally assessment was completed on 12.03.2014 u/s. 147 r.w.s. 143(3) of the Act. Smt. Sita Badoliya filed an appeal and contended that she is not only the legal heirs and has not received any benefit from late Shri Jethmal Binwara. The ld. CIT(A) allowed the appeal of the assessee by observing that 7. Even on merits also, I find that the AO failed to bring on record any evidence whatsoever which could even remotely suggest that the appellant had some benefit on account of transaction entered by late Sh. Jethmal Binawara, It is fact that as per court's order dated 31-07-2009, the appellant and her sister Smt. Sanjana only received Rs. 21,355/- which was equally divided between both of them. Nothing substantial has been received by the appellant from the property of Sh. Jethmal Binawara. No proper inquiry has been conducted by the AO to find out the truth of the matter that who was the actual beneficiary of the transaction entered into by Sh. Jethmal Binawara. Entire assessment has been framed in a very casual manner without establishing that the assessee being le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of them and nothing substantial has been received from the property of Shri Jethmal Binwara. The Ld. Commissioner of Income Tax (A) has also observed that no inquiry was conducted by the Assessing Officer as to who was the actual beneficiary of the transaction entered into by Shri Jethmal Binwara and further that the entire assessment has been framed in a very casual manner without establishing that the assessee being the legal heir was the only beneficiary. 5.2 On facts, we find no reason to interfere with the findings so arrived at by the Ld. Commissioner of Income Tax (A) and we also note that the issue is squarely covered in favour of the assessee by the order of ITAT, Jodhpur Bench in the case of ACIT vs. Late Shri Mangilal through the legal heir Shri Badri Prasad Bhatia (supra) wherein ITAT Jodhpur Bench held that the defect of not sending notices to all the legal representatives is not curable under the Act. The ITAT Jodhpur Bench has also noted that the issuance of notice u/s 142(1)/142(2) is different from the notice issued u/s 148 of the Act and that the processing of return u/s 143(3) simpliciter and the one processed u/s 148 of the Act after assuming jurisdiction t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
