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TMI Blog2019 (11) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... the death of the party. As discussed above, the deceased assessee late Rathindranath Bhattacharya left a WILL giving effect to the same after his death declaring that all his immovable and movable properties would devolve on the TRUST and nothing of his estate devolved on Smt. Sumita Bhattacharya (Das), alleged legal heir. It is noted from the WILL that he is a bachelor having intended to create a TRUST after his death in the name of his deceased father for the activities discussed therein. Therefore, it clearly shows that late Rathindranath Bhattacharya died executing a WILL declaring all his immovable and movable properties to be devolved in the said TRUST after his death. It is established that he died testate and when he died testate decided declaring the said TRUST would succeed to his estate and the question of legal heir does not arise. Therefore, Smt. Sumita (Bhattacharya) Das cannot be said to his legal heir. Thus, we find no infirmity in the order of CIT(A) and it is justified. Ground nos. 1 to 4 raised by the Revenue involving the issue are dismissed. - ITA No.2347/Kol/2017 - - - Dated:- 6-9-2019 - SH. J.SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SH.S.S.VISWA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Difference (MV-SC) 1 1-04242 of 2013/05068 of 2013/1606L000009881 of 2013 ₹ 21,00,000/- ₹ 55,70,000/- 34,70,000/- 2 1-04243 of 2013/05069 of 2013/1606L000009884 of 2013 ₹ 18,00,000/- ₹ 55,70,000/- 37,70,000/- 3 1-04241 of 2013/05067 of 2013/1606L000009885 of 2013 ₹ 21,00,000/- ₹ 55,70,000/- 34,70,000/- Total Difference(Market Value-Sale Consideration) 1,07,10,000 5. The AO asked the alleged legal heir to show cause why the above mentioned difference should 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 details is therefore not maintainable in law. As can be seen from copy of the instrument of WILL or final testament dated 20.03.2015, which is made seven days prior to his death, Shri Rathindra Nath Bhattacharya mentioned that he was a bachelor and both his brothers were dead and that there were two sons and two daughters of his elder brother and one son and one daughter of his younger brother. The said will nowhere clearly mentions that Smt. Sumita Bhattacharya(Das) (Bhattacharjee) shall be his legal heir after his death. In fact in the said will Shri Rathindra Nath Bhattacharya categorically mentioned that all his properties after his death shall vest in a TRUST in the name of his d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Bhattacharya. We note that the said alleged legal heir contended before the CIT(A), the assessment made in the hands of alleged legal heir is not maintainable in the absence of any evidence such as legal heir certificate from Court of law, legal heir certificate from any local revenue authorities, the surviving family member certificate issued by any authority, registered WILL and pension certificate issued by the State or Central Governments. There is no dispute that the AO having no such evidence on record the assessment was made in the hands of Smt. Sumita Bhattacharya(Das), the alleged legal heir. The CIT(A) also held the assessment which is made in the hands of Smt. Sumita Bhattacharya(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 allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity 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 the Act explains that where a person dies, his legal representatives shall be liable to pay any sum which the deceased have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. As discussed above there is no evidence in the hands of the AO to treat Smt. Sumita Bhattacharya(Das) as the legal representative of the deceased assessee. The definition of legal representative is provided in sub- Section 11 of Section 2 of Code of Civil Procedure. Legal representative means a person who in law represents the estate of a deceased person in a representative character the person on whom the estate devolves on the death of the party. As discussed above, the deceased assessee late Rathindranath Bhattacharya left a WILL giving effect to the same after his death declaring that all his immovable and movable properties would devolve on the TRUST and nothing of his estate devolved on Smt. Sumita Bhattacharya (Das), alleged legal heir. It is noted from the WILL that he is a bachelor having intended to create a TRUST ..... X X X X Extracts X X X X X X X X Extracts X X X X
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