TaxTMI 
TaxTMI 
2019 (11) TMI 263
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....IT(A) justified in deleting the addition made by the AO on account of difference between sale consideration and market value of properties in the hands of alleged legal heir of deceased assessee in the facts and circumstances of the case. 3. The brief facts emanating from the record leading to the issue on hand are that the deceased assessee i.e. Rathindranath Bhattacharya while he was alive filed his return of income declaring total income of Rs. 2,60,030/- on 11.08.2014 and he expired on 27.03.2015. According to AO, scrutiny notice dated 28.08.2015 U/s 143(2) of the Income Tax Act, 1961 (hereinafter 'the Act') was served on the deceased assessee on 03.09.2015. A notice dated 04.05.2016 U/s 142(1) of the Act was served on the alleged le....
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....not be added to the total income. We note that the AO observed in his assessment Order that the legal heir vide reply dated 29.07.2016, accepted the difference as found by him of the said three properties in respect of sale consideration and market value and accordingly, he proposed to add the said difference to an extent of Rs. 1,07,10,000/- to the total income of the assessee. 6. Further, to the above, he received an information from AIR that the deceased assessee Rathindranath Bhattacharya sold another property having market value of Rs. 39,36,000/- for a consideration of Rs. 20,00,000/- and found difference between market value and sale consideration of Rs, 19,36,000/- (Rs. 39,36,000 - Rs. 20,00,000). It is noted that in reply to the....
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.... made by the AO for the reasons as under: "I have gone through the copy of death certificate of the assessee issued by Bidhannagar Municipality that the assessee had expired on 27.03.2015. As can be clearly seen from copy of the notice U/s 143(2) issued by the A.O. on 28.08.2015, that the said notice is in the name of Shri Rathindra Nath Bhattacharya. Therefore, on the day of issuance of notice in the name of the assessee the person ceased to exist having expired back on 27.03.2015. Such notice is therefore null and void ab-initio and the subsequent proceeding based on the said notice is also liable to be quashed. The fact that in response to the said notice one A.K. Chakraborty appeared as the A/R of the assessee and produced the ....
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....s 142(1) of the IT. Act, 1961, dated 4.5.2016 issued on Smt. Sumita Bhattacharya(Das) (Bhattacherjee) to be the legal heir of Late Rathindra Nath Bhattacharya is invalid and bad in law as the said flat has not been established/certified by any Court of law or by any WILL of the deceased or by any other means. Therefore, Ground No.2, 3 & 4 of the appeal of the assessee are upheld and therefore, the order passed U/s 143(3) is void ab-initio." 8. Heard both parties and perused the material available on record. The contention of the ld. AR is that the notice issued by the AO on 28.08.2015 is not maintainable for the fact that late Rathindranath Bhattacharya was no more as on 28.08.2015 as he expired on 27.03.2015. We note that the CIT(A) exa....
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....tacharya(Das) is not maintainable to the fact that in the absence of any evidence or whatsoever establishing that Smt. Sumita Bhattacharya(Das) is the legal heir of late Rathindranath Bhattacharya. 10. In view of the discussions made herein above, the issue stands for our consideration is as to whether Smt. Sumita Bhattacharya(Das) is heir to the estate of the deceased assessee late Rathindranath Bhattacharya. 11. There is no dispute that the deceased assessee and alleged legal heir Smt. Sumita Bhattacharya(Das) are the Hindus. It is pertinent to note that the succession opens when a hindu male or female dies intestate i.e. without executing a WILL or final declaration regarding the succession to their estate. The Hindu Succession Act....
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.... Pal as the joint executors of the said WILL. On perusal of the said WILL we note that the entire immovable and movable properties shall devolve on the TRUST created by the deceased assessee and nowhere he intended that Smt. Sumita Bhattacharya(Das), the alleged legal heir is to be his heir to succeed his estate. Therefore the finding of the AO that Smt. Sumita Bhattacharya(Das) is the legal heir of deceased Rathindranath Bhattacharya is not based on any evidence and therefore she cannot be said to be the legal heir of late Rathindranath Bhattacharya in the absence of any evidence. 13. The liability in special cases regarding legal representatives is provided in Section 159 in chapter XV of the Income Tax Act. The provision U/s 159 of th....