Late Shri Narayansingh Maheshwari, ... vs Department Of Income Tax

Income Tax Officer-12(1)(1) Late Shri Narayansingh Room No. 115, 1st Floor Maheshwari Vs. Aayakar Bhavan, M.K. Marg 106, Gulab Building, 237 P.D. Mumbai 400020 Mello Road, Mumbai 400001 PAN - AAEPM3980D Appellant Respondent

Appellant by: Shri V.K. Bora Respondent by: None

Date of Hearing: 05.03.2015 Date of Pronouncement: 05.03.2015

ORDER

Per D. Manmohan, V.P.

This appeal by the Revenue is directed against the order passed by the CIT(A)-23, Mumbai and it pertains to A.Y. 2009-10.

2. Only ground urged by the Revenue reads as under: -

"On the facts and in the circumstances of the case and in law, the Ld CIT(A) erred in quashing the assessment order passed/s 143(3) of the I.T. Act being void ab initio without appreciating the fact that the assessment is either on the deceased or the actual beneficiaries and even in the case of assessment according to the procedure u/s 159 of the Act the incidence of tax is on the estate. In such a situation due to the correlation of Section 159 and Section 168 of the Act, the two separate assessment for the same year would not make the assessees to be two distinct entities."

3. Assessee is an individual having income from rent, capital gains, interest, etc. He expired on 05.10.2008. Income of the deceased was declared by the L/R by filing a separate return for the period from 01.04.2008 to 05.10.2008. After the death the income cannot be said to be earned by the deceased and hence a separate return was filed for the period 2 ITA No. 3878/Mum/2013 Late Shri Narayansingh Maheshwari

06.10.2008 to 31.03.2009. According to the AO the income for the period 01.04.2008 to 31.03.2009 has to be assessed by clubbing the income earned on the estate, post-death also.

4. Aggrieved, assessee contended before the CIT(A) that income tax is leviable on the person who earns income. In the instant case Shri Narayansingh Maheshwari was alive only upto 05.10.2008 and for that period whatever income was earned the legal representative declared the income as income of late Shri Narayansigh and for the subsequent period it cannot be said to have been earned by the deceased and a separate return was filed, which is assessable in the hands of the executor/executors. It was contended before the CIT(A) that as per provisions of section 168(3) of the Act the first assessment should be made from 1st April till the date of death and the separate assessment will be from the date of death till 31st March.

5. Having regard to the circumstances of the case the learned CIT(A) accepted the plea of the assessee and observed in this regard as under: -

"2.3 I have considered the assessment order, submission made for the appellant and the material available on record. The contention of the appellant is found to be in order. There should have been two assessments as submitted by the appellant, one in the hands of the legal representative upto the date of death. And other would be u/s 168 in the hands of the executor or executors. The Assessing Officer had made only one assessment which is not correct as per the provisions of law. Accordingly, the assessment made under section 143(3) of the I.T. Act is hereby quashed as being void ab initio. This ground is allowed."

6. Aggrieved, Revenue is in appeal before us. Section 168(3), which is relevant in this context, reads as under: -

" 168 (3) Separate assessments shall be made under this section on the total income of each completed previous year or part thereof as is included in the period from the date of the death to the date to the date or complete distribution to the beneficiaries of the estate according to their several interests."

7. The learned D.R. has not placed any material/case law or any other provision under the Act to show that even after death the income for the period of 12months should be assessed in the hands of the deceased.

3 ITA No. 3878/Mum/2013 Late Shri Narayansingh Maheshwari

8. Having regard to the circumstances of the case we do not find any infirmity in the order passed by the learned CIT(A) and, therefore, dismiss the appeal filed by the Revenue.

Order pronounced in the open court on 5th March, 2015.

Sd/- Sd/- (Chandra Poojari) (D. Manmohan) Accountant Member Vice President

Mumbai, Dated: 5th March, 2015

Copy to:

1. The Appellant 2. The Respondent 3. The CIT(A) - 23, Mumbai 4. The CIT- 12, Mumbai City 5. The DR, "B" Bench, ITAT, Mumbai

By Order

//True Copy// Assistant Registrar ITAT, Mumbai Benches, Mumbai n.p.