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2022 (9) TMI 362 - HC - Income TaxValidity of Reopening of assessment u/s 147 - notice u/s 148 issued upon a deceased assessee - HELD THAT - As it is clear that the settled position of law is that a notice under Section 148 issued upon a deceased assessee was void ab initio. Therefore, the notice issued on 13th April, 2021, which was impugned in the writ petition, has to be necessarily set aside. Pursuant to such notice an order of assessment had been passed against a dead person. Therefore, not only the notice issued under Section 148 but also the assessment order are liable to be set aside Respondent department should be granted liberty to proceed in accordance with the amended provisions namely, Section 148A of the Act, by proceeding against the legal representative of the deceased assessee, who had in fact submitted the legal heir certificate and other documents when the assessment was taken up which ultimately culminated in the assessment order dated 25th March, 2022. For the above reasons, the appeal is allowed and the order passed in the writ petition is set aside. The notice issued under Section 148 on 13th April, 2021 on a dead person and the consequential assessment order dated 25th March, 2022 are set aside - Decided in favour of assessee.
Issues:
1. Condonation of delay in filing appeal. 2. Validity of notice issued under Section 148 of the Income Tax Act, 1961 in the name of a deceased person. 3. Applicability of amended provisions under Section 148A of the Act. 4. Setting aside of notice and assessment order against a dead person. 5. Direction to proceed against the legal representative of the deceased assessee. Condonation of Delay: The High Court of Calcutta considered a delay of 91 days in filing an appeal and reviewed the affidavit filed for condonation of delay. The Court found sufficient cause for the delay and allowed the application for condonation of delay. Validity of Notice Issued to Deceased Person: The appeal challenged a notice issued under Section 148 of the Income Tax Act, 1961, on 13th April, 2021, concerning the assessment year 2014-15. The appellant contended that a notice issued in the name of a deceased person is void ab initio. Citing relevant case law, it was argued that such notices are invalid, and the Court agreed, setting aside the notice issued in this case. Applicability of Amended Provisions: Referring to a Supreme Court decision, it was argued that notices issued under Section 148 prior to an amendment are deemed validated under the new law. However, the Court emphasized that a notice issued upon a deceased assessee is void from the beginning. The Court directed the authorities to proceed in accordance with the amended Section 148A of the Act. Setting Aside Notice and Assessment Order: The Court concluded that not only the notice issued on 13th April, 2021, but also the assessment order dated 25th March, 2022, against a deceased person must be set aside. The respondent department was granted liberty to proceed against the legal representative of the deceased assessee as per the amended provisions, considering the legal heir certificate and other documents submitted during the assessment. Direction to Proceed Against Legal Representative: The Court allowed the appeal, setting aside the order passed in the writ petition. It directed the remand of the matter to the Assessing Officer to proceed in accordance with the law, specifically under the amended provisions of Section 148A of the Act. Consequently, the notice issued to the deceased person and the related assessment order were set aside, with instructions to proceed against the legal representative of the deceased assessee. Closing of Stay Application: The stay application related to the case was closed as a result of the judgment delivered by the High Court of Calcutta.
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