9911796707
TMI Blog2016 (4) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... , the primary condition for the invocation of Section 292BB is absent in the case on hand. As we have pointed out earlier, the original order of assessment was a scrutiny assessment passed under Section 143(3) on 23.6.2011. After two years, the Commissioner sought to invoke Section 263. The assessee had died in the meantime on 13.6.2013. The show cause notice under Section 263 was issued on 6.9.2013.We can give the benefit to the Department that they were not aware of the death of the assessee on that date. But, this notice dated 6.9.2013, sent by post, returned with the endorsement that the addressee was dead. Thereafter, the Department served the very same notice on the legal heir through a messenger. Therefore, the Department cannot now take advantage of Sub-Section (3) of Section 159. If the Department had issued the notice addressed to the legal heir himself, by taking recourse to Section 159(3), the deeming fiction could have been taken advantage of by the Department. It is too late in the day for the Department to take advantage of the same. Thus the very initiation of the proceedings against the dead person and the continuation of the same despite having noticed the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the date of issue of the show cause notice, the assessee had passed away. He is stated to have died on 13.6.2013. 5. As a result, the show cause notice dated 6.9.2013, sent by post, was returned with the endorsement 'addressee deceased'. This fact was intimated by the Income Tax Officer to the Assistant Commissioner by a communication dated 23.9.2013. 6. It appears that thereafter the Department served the very same show cause notice on the son of the deceased assessee through a messenger. Left with no alternative, the son engaged the services of an authorised representative, who participated in the proceedings under Section 263. 7. Eventually, an order was passed by the Commissioner on 21.3.2014, sustaining the show cause notice, setting aside the scrutiny assessment order dated 23.6.2011 and remitting the matter back to the Assessing Officer to pass orders afresh. 8. Pursuant to the said order, the Assessing Officer passed a giving effect order computing the total tax payable as ₹ 29,01,959/-. As against the order passed under Section 263, the assessee filed an appeal to the Tribunal in I.T.A.No.1286/Mds/2014. This appeal was allowed by the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain circumstances. Where an assessee has appeared in any proceeding or co- operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was-- (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. 14. A cursory look at Section 292BB would show that the same would apply only to two types of proceedings namely (i) proceedings, in which, the assessee had appeared and (ii) any inquiry, in which, the assessee had cooperated. 15. In the case on hand, the assessee was dead. It was the assessee's son, who appeared and perhaps cooperated. Therefore, the primary condition for the invocation of Section 292BB is absent in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted with. (5) The provisions of Sub-Section (2) of Section 161, Section 162 and Section 167, shall, so far as may be, and to the extent to which they are not inconsistent with the provisions of this Section, apply in relation to a legal representative. (6) The liability of a legal representative under this section shall, subject to the provisions of Sub-Section (4) and Sub-Section (5), be limited to the extent to which the estate is capable of meeting the liability. 18. Sub-Section (1) of Section 159 would apply to a case where a liability has already crystallised. The death of an assessee would not absolve the legal heirs of the assessee of any liability that the assessee had incurred during his life time. In the case on hand, the liability, if any, would have arisen only after an order is passed under Section 263. Therefore, Sub-Section (1) of Section 159 will not apply to the case on hand. Sub-Section (2) of Section 159 deals primarily with two contingencies. The first is dealt with in Clause (a) of Sub-Section (2) of Section 159. This Clause (a) contemplates the contingency of a proceeding taken against the deceased before his death. 19. In this case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the original order of assessment was a scrutiny assessment passed under Section 143(3) on 23.6.2011. After two years, the Commissioner sought to invoke Section 263. The assessee had died in the meantime on 13.6.2013. The show cause notice under Section 263 was issued on 6.9.2013. 25. We can give the benefit to the Department that they were not aware of the death of the assessee on that date. But, this notice dated 6.9.2013, sent by post, returned with the endorsement that the addressee was dead. Thereafter, the Department served the very same notice on the legal heir through a messenger. Therefore, the Department cannot now take advantage of Sub-Section (3) of Section 159. If the Department had issued the notice addressed to the legal heir himself, by taking recourse to Section 159(3), the deeming fiction could have been taken advantage of by the Department. It is too late in the day for the Department to take advantage of the same. 26. Mr.M.Swaminthan, learned Standing Counsel drew our attention to the decision of the Madhya Pradesh High Court in Smt.Kaushalyabai Vs. CIT [238 ITR 1008] and contended that once the legal heir of the deceased assessee had participated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
