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TMI Blog2011 (7) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... nd even the order under section 143(3) was passed in the name of dead person. 2. The facts of the case in brief are that the original return of income was filed by the assessee on 23.9.2004 declaring total income of ₹ 11,320. The return was processed u/s. 143(1) of the Income Tax Act, 1961 (the Act). During the course of assessment proceedings for the A.Y. 2005-06, the Assessing Officer, while examining the details relating to assessee's investment u/s.54EC bonds, noticed that the claim u/s.54EC made in the Assessment Year 2004-05 was not fully acceptable. Accordingly, he recorded the reasons as per the order sheet notings dt.24.12.2007 for reopening the assessment u/s.147 and thereafter issued notice u/s.148. In response to this notice, the assessee filed return of income on 24.1.2008 declaring the same income. In the original return of income, the assessee declared Long Term Capital Gains on grant of development rights of the property known as Ganga Vihar, more particularly described in the Schedule forming part of the Development Agreement dt.28.11.2003. The entire (100%) capital gain of ₹ 4,86,00,000 was offered to tax in the hands of the assessee. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person nor a notice can be issued on a deceased person. The decision of the Hon'ble Madhya Pradesh High Court in the case of CIT Vs. Dalumal Shyamumal 276 ITR 62 (M.P.) was brought to the notice of the learned CIT(A). It was submitted before him that the defect in passing of the order on the deceased person for the A.Y.2005-06 and issue of notice u/s.147 on a deceased person for A.Y. 2004-05 goes to the very jurisdiction and therefore the assessment order for both the years are liable to be quashed. 4.1 However, the learned CIT(A) was not convinced with the arguments advanced before him and dismissed the appeal of the assessee by holding as under : As per record it is seen that notice u/s.148 was issued on 27.12.2007 in the name of Ms. Sita Vinod Vyas. At the time of issue of notice, there is no intimation on record to indicate that the legal heirs had informed the Assessing Officer of the appellant's demise. In response to the notice return was filed on 24.01.2008, return was signed by Dr.AvinashVyas, L/H of late Sita Vyas. Notices issued by the Assessing Officer were complied with which shows that the L/H voluntarily submitted to the jurisdiction of the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manbhai C Munshaw (1981) 128 ITR 142 (Guj). Similarly, in Maharaja of Patiale Vs. CIT (1943) 11 ITR 202 (Bom) though notice was issued to the deceased, but another received the same filed the return and filed appeal against the assessment, the assessment though not made in the legal representative was held to be valid by the Bombay High Court. Thus this ground is dismissed. 5. The learned counsel for the assessee referring to the letter dt.24.12.2007 addressed to the Assessing Officer, (copy of which is placed at paper book pages 30 31) submitted that in the said letter, name of the assessee has been mentioned as Late Sita Vinod Vyas. Referring to page 39 of the paper book, the learned counsel for the assessee drew the attention of the Bench to the notice issued u/s.148 of the Act wherein the name is mentioned as Mrs. Sita Vinod Vyas. According to the learned counsel for the assessee, this notice u/s.148 was issued on a dead person. Referring to pages 41 42 of the paper book he submitted that in the return filed in response to notice u/s.148 the name of the assessee was mentioned as Late Sita Vinod Vyas and it was singed by Dr.Avinash V Vyas, legal heir of Mrs. Sita Vinod V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal heirs. He accordingly submitted since the reasons are recorded in notices u/s. 148, on a dead person, the notice issued u/s.143(2) on a dead person and the order u/s.143(3) has been passed on a dead person, therefore, the entire proceedings are a nullity. 6. The learned D.R., on the other hand, supported the order of the learned CIT(A). He submitted that this is a mere typographical error. The notices are usually prepared by the clerical staff and this mistake is not a mistake done by Assessing Officer. Much importance should not be given to the lapse of the technicalities. In view of the provisions of section 292B, this is a curable mistake and the assessment cannot be treated as null and void. 7. We have considered the rival submissions made by both the sides, perused the orders of the Assessing Officer and the CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. Admittedly in this case, the assessment was reopened by the Assessing Officer on the basis of examination of details furnished during the assessment proceedings for A.Y. 2005-06. The assessee vide letter dt.24.12.2007 addressed to the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continue the proceedings from where the irregularities intervened, if otherwise permissible under the law. 8. Since the assessee succeeds on this preliminary ground, we are not adjudicating the other grounds as well as the additional grounds raised by the assessee as these become academic in nature. 9. In the result the appeal filed by the assessee is allowed. ITA 3539/Mum/2010 10. The assessee in the grounds of appeal has challenged the order of the CIT(A) in confirming the addition of ₹ 63,081 made by the Assessing Officer on protective basis being proportional additional interest on REC Bonds. 11. After hearing both the sides, we find the assessee had claimed exemption u/s.54EC against the Long Term Capital Gains during the Assessment Year 2004-05 being investments made in REC Bonds and NABARD Bonds. Since the entire investment was made out of the funds belonging to the assessee, the Assessing Officer treated the interest from entire investment of ₹ 4,94,70,000 as income of the assessee. Since the assessee has offered to tax only interest income of ₹ 2,52,324 corresponding to REC Bonds of ₹ 3,95,76,020 in the revised return, the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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