Between v. Suryanarayana Reddy

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH ATHYDERABAD THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAAND THE HON’BLE SRI JUSTICE K.C. BHANU I.T.T.A. No. 14 of 2013 DATE: 01.08.2013 Between: Dr. V. Suryanarayana Reddy … Appellant And The Assistant Commissioner of Income TaxCircle-1, Karimnagar. … Respondent This Court made the following: THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDTHE HON’BLE SRI JUSTICE K.C. BHANU I.T.T.A. No. 14 of 2013 JUDGMENT:(Per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is preferred against the impugned judgment and order ofthe learned Tribunal, dated 13.04.2011, in relation to the assessment year2002-03. It appears that as many as four appeals have been disposed of by thelearned Tribunal on the identical facts and circumstances. This appeal issought to be admitted by the appellant on the following suggested questionsof law. 1)On the facts and circumstances of the case, whether the orderof the Tribunal is not perverse in holding that the petitioner has notdischarged his onus of proving the fact that he received throughwill the amount of Rs.15,44,702/-? 2) Whether on the facts and circumstances of the case, theTribunal is correct in law in ignoring the fact that the petitioner’sgrandmother filed her returns of income and such returns doesdisclose the amount that are claimed to have been received bythe appellant through Will and thereby erred in holding that thepetitioner has not proved the factum of Will? 3)Whether on the facts and circumstances of the case, theappellate Tribunal is correct in law in holding that the appellant inthe appeal before the Commissioner (Appeals) accepted foraddition of Rs.6,28,000/- without appreciating the legal propositionthat an alternate plea does not amount to acceptance? A reading of the aforesaid suggested first two questions and going bythe law, it is absurd that the appellant could receive a sum of Rs.15,44,702/-on the strength of a Will and that testatrix of which is still alive. It is thefundamental law of testamentary succession that the benefit of the Will canbe derived only after the death of the testator or testatrix as the case may be. Here the testatrix is admittedly alive and she has filed her returns. Even if we hypothetically assume that the testatrix died, then it is an un-probated Willand under the provisions of Section 213 of the Indian Succession Act, 1925,no benefit can be derived from an un-probated Will. Here the probate cannotbe obtained, because the testatrix is still alive. Therefore, the attempt of theappellant by preferring the appeal is to unwillingly kill his grandmotherprematurely, who does not want to be killed. Therefore, the authority shouldhave considered this mixed legal and factual aspect. The appellant wantsthe authority including this Court to believe the absurd things. Insofar as the third ground is concerned the assessee through hisauthorized representative has agreed to the aforesaid addition. We justquote the relevant portion of the judgment and order of the Commissioner ofIncome Tax (Appeals), mentioned in paragraph 3.2, which reads as follows. “However, I agree with the alternative contention of the learnedAR that the addition should be restricted to Rs.6,28,000/- reflectingthe amounts introduced in the books of accounts of the appellantduring the year.” In our view the submission must have been made to concede theaforesaid amount before adding. That is why the Commissioner decided toaccept this submission. The learned Tribunal has further held that since thisbeing an agreed addition, we are not inclined to interfere with the order of theCommissioner of Income Tax (Appeals). In view of the aforesaid discussion, we do not find any reason tointerfere with the impugned judgment and order of the learned Tribunal andwe uphold the same. Hence, we dismiss the appeal, as no point is involvedto be decided by this Court. _____________________ K.J. SENGUPTA, CJ ________________ K. C. BHANU, J