Jaya Rani Dhar, Kolkata vs Department Of Income Tax

आयकर अपील य अधीकरण, यायपीठ - "B", कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH : KOLKATA (सम ) ी महावीर संह, यायीक सद य एवं ी शामीम याहया , लेखा सद य [Before Hon'ble Shri Mahavir Singh, JM & Hon'ble Shri Shamim Yahya, AM ]

ITA No. 1406/Kol/2010 A.Y 2003-04

I.T.O Ward 41(2), Kolkata Vs. Jaya Rani Dhar PAN: ADMPD 6315N [Appellant] [Rrespondent] Appellant by : Shri Debasish Banerjee, JCIT/ld.DR Respondent by : Shri Miraj D.Shah, ld.ARR सुनवाई क तार ख/Date of Hearing : 27-02-2015 घोषणा क तार ख/Date of Pronouncement: 27-02-2015 आदेश /ORDER

ी शामीम याहया , लेखा सद य Shri Shamim Yahya, Accountant Member

This appeal is filed by the revenue against the order of the ld.CIT(A) dated 06-04- 2010 pertaining to assessment year 2003-04.

2. The issue raised by the revenue is that the ld.CIT(A) has erred in not upholding the addition to the tune of Rs.13,53,000/- on the ground of the undisclosed investment u/s. 69 of the Act, 1961.

3. We have heard both the counsel and perused the record. We note that the assessment in this case framed on a dead person namely late Jaya Rani Dhar. In our opinion the assessment on a dead person is not sustainable in law. It is not the case that the AO was not aware that the said assessee was dead. As a matter of fact, the assessment itself has been framed on late Jaya Rani Dhar. Hence, it is clear that the AO despite being aware that the assessee is dead did not bring on record the legal heir of the assessee and proceeded to pass an order on a dead person. Since the order has been passed on a dead person, the same is not a valid order and as such the same cannot be sustained. Hence, on this preliminary issue itself the appeal by the revenue is liable to be dismissed inasmuch as the original foundation of the assessment is bad/illegal inasmuch as the assessment has been framed on a dead person.

4. As regards the merit of the case the ld. Counsel of the assessee submitted that the ld.CIT(A) has passed a reasoned order that the addition was made in the hands of the assessee on account of investment made during the assessment year under consideration. However, he submitted that after examining the records the ld.CIT(A) has given a clear finding that the 2 ITA No.1406/Kol/10-B-AM Jaya Rani Dhar

amount for making investment in the assessment year in question originated from investment made in earlier year. Hence, the addition during the current year is clearly not sustainable. We find that this argument of the ld. Counsel of the assessee also bears sufficient cogency. However, since the impugned assessment has been made on a dead person, the assessment itself is invalid. In this view of the matter, in our considered opinion this appeal filed by the revenue is liable to be dismissed. Accordingly, the same is dismissed

5. In the result, this appeal filed by the revenue is dismissed.

Order pronounced in the open court on 27 02-2015

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Sd/- Sd/- [ महावीर संह, यायीक सद य] [शामीम याहया, लेखा सद य] [ Mahavir Singh, Judicial Member] [ Shamim Yahya, Accountant Member तार ख/ Dated: 27 /02/2015 आदेश क त ल प अ े षत/Copy of the order forwarded to:

1. अपीलाथ /Appellant- The ITO W 41(2) 18 Rabindra Sarani, Poddar Court, 4th Fl., Kol-1.

2 यथ / Respondent : Shri Shakti Pada Dhar L/H Late Jaya Rani Dhar 33/4 Murani Pukur Rd, Kol-67.

3. आयकर क मशनर/ CIT,

4. आयकर क मशनर (अपील)/CIT(A),

5. वभा गय तनीधी/DR, Kolkata Benches, Kolkata

*PP/SPS [स या पत त/True Copy]

आदेशानुसार/ By order, पंजीकार/Asstt Registrar