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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 ..... a deceased person. 3. Brief facts of the case are that that a search and seizure operation under section 132 of the Act was carried out at the business of premises of Ohm Organisers, Surat on 29.10.1999. Some incriminating material were found and seized. The AO having jurisdiction over M/s.Ohm Organizers noticed that investments in purchase of plots/shops were made by the buyers after payment over and above disclosed in the sale deed. The assessee, Shri Hasmukhbhai Barot had also purchased flat bearing no. A/801 in Yogi Complex, Rander Road, Surat. An assessment order was passed under section 158BC r.w.s. 158BD on 29.6.2006 determining total income of the assessee at Rs. 8,90,000/-. The issue travelled upto the Tribunal, and the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) (TM). 6. The learned DR, on the other hand, contended that section 292BB has been brought on statute w. E. F. 1..2008, which provides that if an assessee has participated in the proceedings, then he will be precluded to raise any objection viz. (a) notice not served upon him, or (b) not served upon him in time; or (c) served upon him in an improper manner. He pointed out that the assessee has participated in the proceedings, and therefore, he cannot take objection to the services of notice upon him. 7. We have considered rival contentions and gone through the record carefully. We find that the AO had issued notice under Section 158BD on 21.6.2004 upon Shri Kantilal B. Barot. Copy of the notice is available at page no.25. His legal heir, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessment year 2002-03. His return for assessment year 2003- 04 was filed on 26-3-2004 by his wife Smt. Uma Rani Jain as his legal heir. The said return was processed by the Assessing Officer on 2-7-2004 and refund was granted in the name of Smt. Uma Rani Jain as legal heir of the assessee. Thus, the fact regarding the death of the assessee was very much in the record of the Assessing Officer. Under these facts, the Assessing Officer initiated the proceedings in the name of Shri Sikandar Lal Jain by recording the reasons as well as issuing of the notice under section 148 dated 21-3-2005. For a valid initiation of the proceedings under section 147, in my opinion, issuance of a valid notice within the limitation period as well as rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expired, can be regarded to be a human being so as to fall within the definition of 'individual'. Notice in this case is not issued in the name of the legal representatives of the assessee but issued in the name of an individual who has already expired on 17-11-2002. Therefore, it cannot be said that there was an individual in existence in the name of Shri Sikandar Lal Jain in whose name notice is issued as on the date when the proceedings under section 147 was initiated or the notice under section 148 was issued. Under the 1922 Act, the word "individual" did not necessarily refer to a natural human being but also included a juristic person like a Hindu idol, but under the 1961 Act definition, there is a separate appropriate specification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntatives shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. Similarly, section 159(2) also empowers the Assessing Officer to take the proceedings against the legal representatives which he should have taken against the deceased if he had survived. Section 159(2) nowhere authorizes the Assessing Officer to take the proceedings against the individual who has already expired, that is why the legal representative under section 2(7) are regarded to be assessee. It emanates that the assessee in the case of a deceased person will be the person who are regarded to be the legal heirs of the deceased as they can be regarded to be the human bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mple, viz. an assessee died leaving behind four legal representatives. The AO issued notice on the deceased. One of the legal representatives participated in the proceedings and the AO passed assessment order. All the four legal representatives had inherited property of the deceased. 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 followi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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