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TMI Blog2020 (5) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 in name of deceased assessee viz; Shri Navinchandra Sakalchand Dalai (who had expired on 3-112013) (ii) There was prima facie no new material or information, particularly as registered sale deed is always within public domain right at the time of processing ROI (iii) In any case, FMV of property sold as at 1-4-1981 has not been subject matter of "reasons recorded" u/s 148 3.1 The CIT(A)/the AO failed to appreciate that (i) The appellant was imperfect owner of property on several counts, entire property sold was in occupation of old tenants / subtenants/sublessees (since last more than 20 years) /encroachers, the property sold suffered from mandatory limitations and several adversities, have imperfect titles, subject to several riders such as pending vacation and civil suits, illegal encroachments, Urban Land Ceilings (and Regulations) Act, 1976 (ULCJ acquisition of land area of 5023 sq. mts., Gujarat HC granting injection against the appellant/the buyer to maintain status quo in ULC matter and SLP there against still pending before SC. (ii) ULC Authority could not demarcate its acquired land area and hence the buyer effectively bought the property (4292 sq. mtrs.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee namely Shri Navinchandra S Dalal (now deceased assessee) filed his return of income dated 28-03-2013 declaring total income at Rs. 64,570/- which was processed under section 143(1) of the Act dated 06-052013. The AO subsequently found that the sale consideration Rs. 1.34 crore shown by the assessee in the income tax return on the basis of sale deed was less than the value adopted for the purpose of for stamp duty amounting to Rs. 3,30,35,360/-. Accordingly, the AO was of the view that the assessee was required to adopt the sale consideration as adopted for the purpose of the stamp duty in pursuance to the provisions of section 50C of the Act. But the assessee has not done so. As a result the income of the assessee has escaped assessment. Thus the AO issued notice under section 148 of the Act upon the assessee dated 28.01.2015. 5. The legal representative of the deceased assessee namely Shri Deepak N. Dalal in response to such notice submitted that the original return filed dated 28.03.2013 should be treated as the return filed under section 148 of the Act. 6. The assessee before the AO challenged the validity of the proceedings initiated under section 148 of the Act for vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under his WILL executed on 261-2013 and he had inherited all the estate left by my deceased father. On coming to know the same, the appellant addressed letter dt. 11-82016 to ITO Ward-5(2)93) A'bad narrating all facts with evidence and requested AO to implead his brother Sh Dilip Dalai as LR of the deceased and continue the proceedings against him and also recover the demand from him because the appellant had not received any property from his father. The appellant again informed AO vide letters dt. 5-3-2018 and 17-3-2018 to take up the proceedings for recovery against his brother. However no reply or action was taken in this direction by AO. Therefore the appellant has raised in this contention in the present proceedings. 2.4 The appellant contends that the presnt proceedings should be restored back to the file of AO for the following reasons: (i) Firstly, the AO has failed to appreciate that in order to continue any proceedings against the deceased, the notice has to be issued to all the iegal heirs/representatives as held in case of Chooharmal Wadhuram ( 80 ITR 3GO)(Guj) wherein it is held that: "Where a person dies leaving more than one legal representatives, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the other legal representatives, the assessment was null and void and that fresh assessment could have been ordered only if law permitted and there was no bar, (iii) Thirdly, it is submitted that in case the failure to issue notice on all the LRs as irregularity, the entire assessment is liable to be set aside and the AO should be directed to make fresh assessment after issuing notice to appellant's brother who has be bequeathed all the estate of the deceased father. The appellant had time & again requested to take proceedings against his brother but neither any order was passed on said applications nor any inquiry was made to ascertain who had received the estate of the deceased. (iv) Lastly, it is submitted that direction may be given to AO to issue notice and implead said son-Sh Dilip Dalai as LR which is material and relevant for the purposes of assessment u/s 159(4) and it is not for excluding income from one person and include in the income of another. The person to be assessed is one- deceased but the proceedings are continued against such LR who inherits the assets of the deceased." 9. On the other hand the learned DR vehemently supported the order of the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs under section 147 of the Act about the death of the assessee. 14. Now the question arises whether the AO has available time limit to issue fresh notice under section 148 when he comes to know the fact that the assessee is deceased? In this the provision of section 149 (1) reads as under: 149. (1) No notice under section 148 shall be issued for the relevant assessment year,- (a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b) or clause (c); (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year; 15. On perusal of the provision of the clause (b) of sub-section 1 of the section 149, we note that the AO has available time of six years from the end of relevant assessment year i.e. 31.03.2013 which ends as on 31.03.2019. Admittedly, the assessee died dated 03-11-2013 and the notice was issued upon him under section 148 of the Act dated 28.01.2015. In this connection we note that the AO was not aware about the death of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r defect may render the order made irregular depending upon the nature of the provision not complied with, but certainly not void or illegal. The appeals were, accordingly, allowed and the judgment of the High Court was set aside. In view of the above, we do not find any merits in the ground of appeal raised by the assessee. Hence we dismiss the same. However, it is also pertinent to note that the provisions of section 159 of the Act require to implicate all the legal heirs in the proceedings initiated under section 147 of the Act. The provisions of section 159 of the Act reads as under: Legal representatives. 11 159. (1) Where a person dies, his legal representative shall be liable to pay any sum12 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. In view of the above, we set aside the entire assessment framed under section 147 of the Act to the AO to frame the same afresh in the name of all the legal heirs as per the provisions of law. 16. As we have set aside entire proceedings to the file of the AO for fresh assessment, we refrain ourselves from adjudicating the issue on merit. Hence, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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