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TMI Blog2019 (8) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... ise of the assessee by legal heir are common situations and therefore, it is for the Income Tax Department to ensure that adequate updation is made in the software in this regard. That puts an end to the first of the threefold submissions pertaining to software. Curable defect u/s 292-B - Learned counsel for writ petitioner pressed into service some orders to say that this Court has held that proceedings against a dead person are nullity, but learned Revenue Counsel says that these orders are distinguishable on facts as they pertain to notices whereas the instant writ petition is one assailing an assessment order made u/s 143(3) - it may not be necessary to delve into those aspects of the matter further and it would serve the purpose t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. An assessment order made by respondent being 'assessment order dated 28.12.2018 bearing Order No.ITBA/AST/S/ 143(3)/2018-19/1014624990(1) pertaining to PAN No.ABNPT3323R for the assessment year 2016-2017' (hereinafter referred to as 'impugned assessment order' for brevity) has been called in question in the instant writ petition. 6. Challenge to impugned assessment order is predicated on the sole ground that it has been made in the name of a dead person. There is no disputation or disagreement that impugned order has been made in the name of one Kanniappan Thiruvengadam and that said Kanniappan Thiruvengadam died on 11.10.2015. To be noted, impugned assessment order is dated 28.12.2018. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to the aforementioned counter-affidavit submitted that the response of the respondent is of three fold and they are as follows: (a) Impugned assessment order is software generated and the respondent cannot change certain details which appear above the caption 'assessment order'. (b) Impugned assessment order being issued in the name of a dead person or in other words in the name of an assessee post demise, is only a curable defect and the same is curable under Section 292-B of IT Act. (c) Writ petitioner has alternate remedy, as a statutory appeal to the Commissioner of Income Tax Appeals (hereinafter 'CIT Appeals' for brevity) will lie under Section 246-A of the IT Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pass the impugned order on 28.12.2018 erroneously once again in the name of dead person only. Therefore, it is contended that the impugned assessment order cannot be sustained in the eye of law. 4. The learned counsel for the petitioner further contended that even though a statutory appeal was filed on 07.01.2019 against the assessment order, since the very order of assessment cannot be sustained on the sole reason that the same was passed against the dead person, pursuing such appeal on merits of the assessment before the Appellate will be futile and therefore, the petitioner is willing to withdraw the said appeal. 5. Perusal of the notice dated 27.11.2018 and the reply submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory appeal by the writ petitioner is pursuant to the orders and proceedings of this Court made by predecessor Hon'ble Judge and therefore, the alternate remedy plea pales into insignificance. 14. With regard to the first of the threefold submissions pertaining to software, suffice to say that it is for the Income Tax Department to update data software to make allowance for such situations. In the considered view of this Court, such situations may not be infrequent and isolated. In other words, situations wherein returns are filed post demise of the assessee by legal heir are common situations and therefore, it is for the Income Tax Department to ensure that adequate updation is made in the software in this regard. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petitioner, namely, T.Palani. This Court is of the considered view that this is untenable as it would lead to a proposition that a decree can be obtained against a dead person and the name of the judgment-debtor alone can be changed to that of the legal heir. No elucidation or elaboration is required to highlight that such a proposition is clearly not tenable. 19. Therefore, in the light of the narrative thus far, this Court deems it appropriate to set aside the impugned assessment order being assessment order dated 28.12.2018 bearing Order No.ITBA/AST/S/143(3)/2018-19/1014624990(1) pertaining to PAN No.ABNPT3323R for the assessment year 2016-2017 and the respondent is directed to redo the assessment after putting the w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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