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TMI Blog2016 (4) TMI 1327X X X X Extracts X X X X X X X X Extracts X X X X ..... not only explained the reason for delay in filing the return of income but also brought to the notice of the Assessing Officer the fact that the assessee had expired on 20th March 2011 and also furnished a copy of his death certificate. In spite of the fact that the Assessing Officer was made aware that the assessee had expired on 20th March 2011, instead of bringing his legal heir on record, the Assessing Officer proceeded to pass the impugned penalty order in the name of deceased assessee. As rightly held by the learned Commissioner (Appeals), order passed against a dead person has no legal affect, hence, invalid in law. - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 139 of the Act, has to be held as invalid return of income, however, the income declared in such return of income has to be treated as undisclosed income. Accordingly, the Assessing Officer completed the assessment by treating the income declared in the original return of income of ` 1,01,33,980, as undisclosed income of the assessee. While doing so, the Assessing Officer also initiated proceedings imposition of penalty under section 271(1)(c). In response to the show cause notice issued by the Assessing Officer under section 271(1)(c) r/w section 274 of the Act, it was submitted by the learned Authorised Representative that assessee was keeping poor health for the past seven years which ultimately resulted in his death in March 2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, issue of notice to legal heir being a mandatory requirement of law having not been observed by the Assessing Officer, the penalty order is void ab initio. On the basis of the plea taken on behalf of the deceased assessee the learned Commissioner (Appeals) called for a remand report from the Assessing Officer. After perusing the remand report of the Assessing Officer as well as submissions made on behalf of the deceased assessee, the learned Commissioner (Appeals) deleted the penalty on the reasoning that no order can be passed against a dead person. The relevant observations of the learned Commissioner (Appeals) is extracted herein below:- 5.1 I have duly considered the report of the A.O. and the written submissions of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized by the legal heir, therefore, any submission made by the AR of the appellant, post his death, has no significance, unless authorized by his legal heir. The AO has not brought on record anything to suggest that the AR who represented before him was duly authorized by the legal heir of the deceased." 4. At the time of hearing, none appeared on behalf of the assessee. Therefore, we proceed to dispose off the appeal after hearing the learned Departmental Representative and on the basis of material on record. 5. On a perusal of the facts on record, it is evident that the assessee had filed his return of income for the impugned assessment year on 25th February 2009, declaring income from capital gain as well as house property and also paid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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