Madhusudhan Reddy L/R Of Late V. ... vs Assessee

ITA No.1490/Hyd/2014 : Assessment year 2009-10

Shri V.Madhusudhan Reddy, V/s. Income Tax Officer, L/R. of late V.Ramachandra Ward-1, Sangareddy Reddy, Ramachandrapuram, Medak Dist.

(PAN - AFAPV 2450 C)

(Appellant) (Respondent)

Applicant by : Shri Mohd. Afzal

Respondent by : Smt. Suman Malik DR Date of Hearing 22.1.2015 Date of Pronouncement 22.1.2015

ORDER

Per P.M.Jagtap, Accountant Member :

This appeal is preferred by assessee against the order of learned Commissioner of Income-tax(Appeals)-III, Hyderabad dated 21.8.2014 on the following grounds-

"1. The order of the learned Commissioner of Income Tax (Appeals) is against law, and probabilities of case.

2. The learned Commissioner erred in confirming the order of the Assessing Officer, wherein, merely on entering into a development agreement it was assumed that there is a transfer of property, without appreciating the meaning of the transfer as provided in section 2(47) r.w.s. 53A of the transfer of property Act.

3. The learned Commissioner erred in confirming the order of the Assessing Officer wherein an addition of RS.8,07,OOOI- is made as unexplained cash deposit without appreciating the explanation submitted during the course of assessment/Appeal proceedings.

2 ITA No.1490/Hyd/2014 Shri V.Madhusudhan Reddy, L/R. of late V.Ramachandra Reddy, Ramachandrapuram, Medak Dist.

4. The learned Commissioner of Income Tax erred in not following the rationale decided by the jurisdictional Hon'ble Income Tax Appellate Tribunal in the case of Miss K.Radhika & others Vs DCIT CC-2, Hyderabad (ITA NO.208 to 211/Hyd/2011), M/s Binjusaria Properties Pvt Ltd Vs ACIT CC-4, Hyd (ITA No.157/Hyd/2011) and Fibras Infratech Pvt Ltd, Hyderabad Vs ITO Ward-1(2), Hyderabad (ITA No.477/Hyd/2013).

5. The learned Commissioner of Income Tax ought to have appreciated that after entering into development agreement, the developer did not perform any obligation in pursuance of the development agreement and the land was as it is, as in its original state when the development agreement entered, therefore, section 2(47) (v) is not at all attracted.

6. The learned Commissioner erred in confirming the addition of Rs.10,01,500/- made as unexplained cash deposit without giving any reasons for stating that the explanation offered is not satisfactory.

7. The appellant craves leave to add to, amend or modify the above grounds of appeal either before or at the time of hearing of the appeal, if it is considered necessary. "

2. We have heard the arguments of both sides and also perused material available on record.

3. As submitted by learned counsel for the assessee at the outset, assessee has already expired way back on 1.8.2013 i.e., well before the impugned order came to be passed by learned CIT(A) on 21.8.2014. He has also filed a copy of death certificate issued by Greater Hyderabad Municipal Corporation showing the date of death of the assessee as 1st August, 2013. The impugned order passed by learned CIT(A) thus is in the name of a dead person and the same has been so passed because the intimation of death of assessee was not given to learned CIT(A) as agreed even 3 ITA No.1490/Hyd/2014 Shri V.Madhusudhan Reddy, L/R. of late V.Ramachandra Reddy, Ramachandrapuram, Medak Dist.

by learned Counsel for the assessee. In the case of CIT V/s. Dalumal Shyamumal (2005)276 ITR 62, the decision of the Tribunal holding the assessment order passed by Assessing Officer against a dead person to be a nullity was upheld by Hon'ble Madhya Pradesh High Court. It was further held by Hon'ble Madhya Pradesh High Court that the Tribunal should have remanded the case to the A.O. to ensure compliance of S.159 of the Act and for passing appropriate order of assessment, after due notice to the legal representative of the deceased assessee. Keeping in view the decision of Hon'ble Madhya Pradesh High Court in the case of CIT V/s. Dalumal Shyamumal (Supra), and having regard to the facts of the case, we set aside the impugned order passed by learned CIT(A) in the name of deceased-assessee holding the same as nullity and remit the matter back to him with a direction to pass a fresh order disposing of the appeal of the assessee after complying with the requirements of S.159(2). The legal representative of the assessee is also directed to extend all the possible cooperation to the learned CIT(A) by furnishing all the relevant particulars and details required by him for the purpose of disposal of the appeal.

4. In the result, appeal of the assessee is treated as allowed for statistical purposes.

Order pronounced in the court at the conclusion of hearing on 22nd January, 2015

Sd/- Sd/-

(Saktijit Dey) (P.M.Jagtap) Judicial Member Accountant Member

Dt/- 22nd January, 2015 4 ITA No.1490/Hyd/2014 Shri V.Madhusudhan Reddy, L/R. of late V.Ramachandra Reddy, Ramachandrapuram, Medak Dist.

Copy forwarded to:

1. Shri V.Madhusudhan Reddy, L/R. of late V.Ramachandra Reddy, (Ramachandrapuram, Medak Dist.)

2. Income Tax Officer Ward 1, Sangareddy

3. Commissioner of Income-tax(Appeals) III, Mumbai

4. Commissioner of Income-tax II, Hyderabad

5. Departmental Representative, ITAT, Hyderabad.

B.V.S