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TMI Blog2015 (9) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Can tax liability imposed upon the deceased assessee will be recovered from the rest of the legal representatives, who inherited the property, but did not participate in the proceeding, because they had not received any notice ? Section 292BB will not help the AO in this situation. Therefore, considering from all angles, we find that notice issued by the AO upon the deceased is defective notice and no valid assessment order could be passed. Respectfully following the order of the ITAT in the case of Sikandarlal Jain (2010 (12) TMI 623 - ITAT, Agra ), we allow the first ground of appeal and quash the assessment order. - Decided in favour of assessee. - IT(SS)A No.441/Ahd/2011 - - - Dated:- 13-8-2015 - SHRI RAJPAL YADAV AND SHRI ANIL CH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed receipt of onmoney from the purchaser of the flats. These details are not relevant for the purpose of adjudication of ground no.1 raised by the assessee. In order to narrate brief history, we have taken cognizance of the background. 4. The learned counsel for the assessee, at the outset, submitted a notice under section 158BD was issued on 29.4.2004. It was issued in the name of Kantilal B. Barot. In response to this notice, it was contended by the legal heir, Shri Hasmukhbhai K. Barot that Shri Kantilal had expired on 27th December, 2001. The first reply was given vide letter dated 6.6.2004. Thereafter, a detailed reply was sent on 26.6.2006. The legal heir has brought this fact to the notice of the AO. During the first round of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 158BD was issued upon a deceased person. The question before us, whether this inherent defect in the notice can be legalized with the help of section 292BB. The learned counsel for the assessee submitted that section 292BB was considered by the Special Bench of the ITAT in the case of Kuber Tobacco Vs. DCIT, 117 ITD 273 wherein it has been observed that this provision is prospective in nature. It was brought in statute w. E. F. 1.4.2008 and hence, it was not effective when the notice under section 158BD was issued. Therefore, the department cannot get any benefit from this section. Apart from this, we find that Third Member of the ITAT in the case of Sikandar Lal Jain (supra) has made lucid enunciation the law on this issue, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. Issuance of the notice to the assessee, as I have already held, is essential for valid proceedings. The assessee is defined under section 2, sub-section (7) which lays down as under : (7) assessee means a person by whom any tax or any other sum of money is payable under this Act, and includes- (a )every person in respect of whom any proceeding under this Act has been taken for the assessment of his income or assessment of fringe benefits or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person ; (b )every person who is deemed to be an assessee under any provision of this Act; (c )every ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it was categorically held that an individual under the Income-tax Act, 1961 means only a human being. The issuance of a valid notice is a foundation for the validity of the re-assessment. There is a clear cut distinction between the precedent and procedure. The defect in the procedure will not normally amount to lack of jurisdiction. The notice prescribed under section 148 for the purpose of initiation of reassessment proceedings is not a mere procedural requirement, but is a condition precedent to the validity of reassessment. If no notice is issued or if the notice issues is shown to be invalid, the proceed- ings initiated by the Assessing Officer would be invalid and void. The assessment framed on the basis of such invalid proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the notice was issued in this case. Only legal heir can be regarded to be the individual. In view of the clear mandates of the provisions of section 2(7) and sub-sections (1), (2) and (3) of section 159, I am of the opinion that the notice issued in the name of a dead person is not a valid notice. In the absence of issuance of a valid notice, the proceedings initiated under section 147 cannot be said to be valid one. Since both the parties have argued this issue extensively relying on a number of case laws claimed to be in their favour, I am bound to discuss all these case laws before giving any final verdict and accordingly these cases are discussed in the following paragraphs as under: .. 8. During the course of hearing, secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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