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TMI Blog2017 (11) TMI 967X X X X Extracts X X X X X X X X Extracts X X X X ..... rtunity to the assessee was given to make submission in support of his return, as required under section 143(2). This assessment proceedings was set in motion by the AO when the assessee was alive. Fact of death of the assessee was brought to the notice of the AO at the very fag end i.e. vide letter dated 23.12.2011. The AO has, though taken cognizance of this letter, but failed to issue notice to the L/Rs. so that they can put their defence before him. There is no illegality committed by the AO. He only committed an irregularity and it is settled position that wherever any irregularity crept in the proceedings, the proceedings itself cannot be declared void, rather irregularity deserves to be rectified. Considering these aspects, we all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e letter dated 23.12.2011. In spite of that the AO has passed the assessment order in the name of a deceased person, therefore, the assessment order deserves to be declared null and void. 5. Considering the very nature of plea raised in the additional ground of appeal, more so, being a legal plea, we admit this ground of appeal, and proceed to dispose of the appeal on merit. 6. Brief facts of the case are that the assessee has filed its return of income on 29.5.2009 showing total income at ₹ 1,41,830/-. The case of the assessee was selected for scrutiny assessment and notice under section 143(2) was issued on 30.8.2010 which was duly served upon the assessee. In order to set assessment proceedings in motion, the ld.AO has issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure illegality which can be cured by issuance of notice to the L/Rs. 8. We have duly considered rival contentions and gone through the record carefully. Section 159 of the Income Tax has a direct bearing on the controversy in hand, therefore, it is imperative upon us to take note of this section. It reads as under: 159. (1) Where a person dies, his legal representative 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. (2) For the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to issue notice to the L/Rs. so that they can put their defence before him. As far as two case laws cited by the ld.counsel for the assessee before us is concerned, in the case of CIT Vs. Dalumal Shyamulal (supra) it reveals that the assessee died on 11.7.1991 and assessment order was passed on 24.2.1993. The time gap would suggest that notice under section 143(2) appears to have been served upon the assessee after his death. Similarly a gap of more than two years is available in the case of Akhter Noorudinahmed Saiyed (supra). Considering these two factors, assessment must have been declared null and void in those cases. Facts are quite distinguishable with the facts of the present case. Therefore, in our opinion, there is no illegality ..... X X X X Extracts X X X X X X X X Extracts X X X X
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