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TaxTMI 
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2025 (2) TMI 1476
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....ttention to para 6.1 of the impugned order. The ld. DR vehemently argued that the order passed by the ld. CIT(A) is null and void ab initio and prayed to set aside the same. The ld. DR drew our attention to the relief claimed and prayed to restore the order of the Assessing Officer. 3. The ld. AR Shri C. Khathiravan, Advocate submits that the instant additional grounds are being raised against the jurisdictional issue by the Appellant - Revenue. He submits that the Revenue erroneously contended that the impugned order passed by the ld. CIT(A) is a nullity solely on the ground that it has been passed in the name of the deceased person and it is a settled principle of law that the order passed in the name of deceased person do not automatically become void, provided that the legal representative is available to continue the proceedings in accordance with section 159 of the Income Tax Act, 1961 ["Act" in short]. He drew our attention to sub-section 2 of section 159 of the Act and submits that the statute expressly provides that where a person dies before any proceeding is taken against them under the Act, such proceeding may be continued against the legal representative of the dece....
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....egal representative of the deceased person. When the legal representative is available to continue the proceedings, the mere mis-description in the name of the deceased person does not vitiate the impugned order. He referred to the doctrine of "actus curiae neminem gravabit" and argued that an act of the Court shall prejudice no one, is squarely applicable and the impugned order should not be rendered void on a mere technical ground when substantive justice has been served. 6. Heard both the parties and perused the material available on record. We note that there is no clear finding on the date of death of the assessee in the impugned order nor in the submissions of the ld. DR. It is true fact that the ld. CIT(A) recorded the death of the assessee and acknowledged filing of copy of legal heirs' certificate, the contention of the Appellant - Revenue is that the ld. CIT(A) having knowing fully, passed the impugned order in the name of the deceased person. The ld. AR submits that the ld. CIT(A) passed the impugned order by fulfilling the condition stipulated in sub-section (2) of section 159 of the Act and there is no flaw in the appellate order. He argued that the legal representa....
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.... 8. On merits, the Appellant - Revenue raised 2 grounds of appeal amongst which the only issue emanates for our consideration is whether the ld. CIT(A) is justified in deleting the addition, which was protectively made by the Assessing Officer in the facts and circumstances of the case. The ld. CIT(A) adjudicated the issue in detail and the same is reproduced herein below for ready reference: 6.1 The AR during the course of Appellate Proceedings has brought to the notice of the undersigned that the Appellant had passed away and the appeal of the Appellant is now pursued by the (Late) Appellant's son and mother. The AR also has filed the copy of Death certificate and Legal Heir Certificate. 6.2 The undersigned after having examined the assessment order passed by the AO, the written submission and additional written submission made substantiating the grounds of appeal and the additional grounds of appeal, the remand report of the AO and the rejoinder to remand report, the various grounds and additional grounds raised are adjudicated here as under: 6.3 At the outset, before going to adjudicate the various grounds raised, it is essential to bring on record t....
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....No 411/3, New Survey No. 411/4 to 7. The Power of Attorney executed is not supported by any consideration and the said attorney shall be able to render full and proper account to the owner M: Thangarajan Nadar. The purchaser Mr. Sethuprakasam was summoned u/s 131 and statement was recorded. The copy of the statement was not provided to the Appellant The AO has stated that Mr. Sethuprakasam (wrongly mentioned as sethupathy has admitted that he had purchased The land from Mr. Thangarajan Nadar, whereas a dispute has happened between Mr. Thangarajan Nadar and Mr Sedhupathy. He had paid some advance earlier to Thangarajan Nadar. But Mr. Thangarajan had refused to register the property. Hence, a common friend Mr. Eraavanan was engaged and Mr. Thangarajan Nadar accepted to register the said property. For that Mr. Thangarajan Nadar had gave a power to Mr. Eraavanan to sell the said property and also he stated that the amount was given only to Mr. Thangarajan Nadar. Hence, no amount was given to Mr. Eraavanan. As a friend of Mr. Sethupathy, the assessee Mr. Eraavanan was engaged in this activity and hence no amount was paid by way of commission/brokerage to Mr. Eraavanan. The AO h....
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....garajan Nadar. Hence, no amount was given to Mr Eraavanan. As a friend of Mr. Sethupathy, the assessee Mr. Eravanan was engaged in this activity and hence no amount was paid by way of commission/brokerage to Mr. Eravanan." 6.10 From the above observation made by the AO in the assessment order it is clear that the buyer of the land has paid the consideration to the owner of the property i.e. Shri. R. Thangarajan Nadar. The AO after having consciously observed that the Appellant has not received the sale consideration has chosen to make the addition in the hands of the Appellant by observing as under- "The assessee Shri Eravanan was asked to produce Mr. Thangarajan Nadar for verifying the statement given by Mr. Sethupathy. The assessee stated that due to old age and illness of Mr. Thangarajan Nadar, he was at present not able to produce him before the Department, but will be produced before the completion of the assessment. Upto 30.12.2011, no statement or letter or personal appearance of Mr. Thangarajan Nadar was effected by Mr. Eravanan. As no details of purchase deed and other details were furnished by the assessee, the benefit of Cost Inflation Index is not prov....
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....essment cannot survive and the protective assessment framed by AO without making the substantive assessment is not sustainable." 6.16 A similar view was taken by Mumbai Tribunal in the case of Suresh. K. Jajoe vs ACIT (39 SOT 514) as under: - "Protective assessment has to be done only after substantive assessment is done. An assessment can be considered as protective only when there is substantive assessment. The substantive assessment has to precede protective assessment" 6.17 In the case of Pegasus Property (Pvt) Ltd vs DCIT (193 ITD 514), Hon'ble ITAT Mumbai Bench has held as under "since no substantiate addition was made, the protective addition made in the hands of the assessee does not survive". 6.18 In the case of ITO, ward 1/Nagaon vs Keshava Nanda Kabti (2021) 133 taxmann.com.316, Hon'ble ITAT Guwahati Bench has held as under In the absence of substantive addition made in the hands of any other person protective assessment cannot be sustained in the hands of the assessee" 6.19 From the above judicial precedents, it can be seen that it is well settled in law that there cannot be a protective assessment w....
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....d that he is a power agent of one Mr. Thangarajan Nadar sold the property to one Mr. Sethupathy. The Assessing Officer recorded statement under section 131 of the Act of Mr. Sethupathy, wherein, it was stated that he purchased land from Mr. Thangarajan Nadar and paid sale consideration also to Mr. Thangarajan Nadar, which is evident from para 3 of the assessment order. Further, the Assessing Officer asked the assessee to produce Mr. Thangarajan Nadar to verify the statement of Mr. Sethupathy. The assessee stated his inability to produce Mr. Thangarajan Nadar because of old age and illness. For having no appearance of Mr. Thangarajan Nadar, the Assessing Officer assessed capital gains in the hands of the assessee protectively on behalf of Mr. Thangarajan Nadar. The ld. CIT(A), by placing reliance on the orders of the Tribunal, held no protective assessment is maintainable in the absence of substantive assessment in the hands of Mr. Thangarajan Nadar. When confronted, the ld. DR reported that no substantive assessment was made, but, however, referred to letter dated 27.01.2022 addressed to the ld. CIT(A) by the DCIT, Central Circle 2(2), Chennai requesting the ld. CIT(A) to consider ....