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TMI Blog2020 (7) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... in completing assessment proceedings u/s 147/144 without providing sufficient opportunity to the assessee. c. The learned Assessing Officer erred in making addition of Rs. 16,00,000/- as undisclosed income and erred in making addition of it to the total income of the assessee. d. The learned Assessing Officer erred in initiating penalty proceedings u/s 271(1)(c) of the Income Tax Act, 1961. 2. On the facts and in ci4rcumstances of the case and in law the learned Commissioner of Income Tax (Appeals) erred in not deleting the addition of Rs. 116,00,000/- made by the AO in respect of investment in mutual fund as undisclosed income. 3. The appellant craves leave to add, alter or amend the grounds of appeal before or at the time of hearing of appeal." The assessee has also raised an additional ground as under :- " Whether the notice issued under section 148 of the IT Act in the name of dead person and consequently the assessment order framed against a dead person is invalid and liable to be quashed." 2. We have heard the ld. A/R as well as the ld. D/R on admission of the additional ground. The additional ground raised by the assessee is purely legal in nature and does not re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d circumstances when the AO was not aware about the death of the assessee it falls in the ambit of section 292B of the Act. 5. We have considered the rival submissions as well as the relevant material on record. The AO has stated the fact regarding the issue of notice under section 148 in para 2 of the assessment order as under :- " 2. A notice u/s 148 of the I.T. Act, 1961 dated 14.03.2016 was issued to the assessee. In response to the same no one attended the proceedings and nor filed any return of income in response to the notice u/s 148 of the Income Tax Act. In the assessment proceedings, notice u/s 142(1) was issued on 28.10.2016 to the assessee to attend the proceedings on 09.11.2016. On 09.11.2016 no one attended the case. In this connection, a notice u/s 144 of the Income Tax Act, 1961 was issued to the assessee on the address of the assessee on 07.11.2016 with request to attend the assessment proceedings on 15.11.2016. No one attended the office or filed adjournment in response to the notices issued from time to timwe. In this connection one more notice u/s 144 of the Income tax Act was issued to the assessee on the address of the assessee with a request to attend the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce under section 148 the AO has proceeded on the basis of the invalid notice issued under section 148. Therefore, it is a jurisdictional issue as notice under section 148 gives the jurisdiction to the AO to initiate the reassessment proceedings. Once the notice itself is not valid as issued against the dead person, then the entire proceedings got vitiated. The Hon'ble Gujarat High Court in case of Durlabhbhai Kanubhai Rajpara vs. ITO, 114 taxmann.com 481 has considered this issue in para 5 to 11 as under :- ""5. Learned advocate Shri Bandish Soparkar for the petitioner submitted that the issue is no more res-integra inasmuch as this Hon'ble Court has on more than one occasion considered this issue and held that the notice under section 148 of the Act against a dead person is nullity and without jurisdiction and no proceedings can be continued pursuant to such notice. He relied upon the decision of this court in case of Chandreshbhai Jayantibhai Patel v. ITO [2019] 101 taxmann.com 362/261 Taxman 137/413 ITR 276 (Guj.) and decision in case of Rasid Lala v. ITO [2017] 77 taxmann.com 39 (Guj.) He also relied upon the decision of Madras High Court in case of Alamelu Veerapan v. IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, defect or omission in such notice if such notice, summons is in substance and effect in conformity with or according to the intent and purpose of the Act. 18. The question that therefore arises for consideration is whether the notice under section 148 of the Act issued against the deceased assessee can be said to be in conformity with or according to the intent and purposes of the Act. In this regard, it may be noted that a notice under section 148 of the Act is a jurisdictional notice, and existence of a valid notice under section 148 is a condition precedent for exercise of jurisdiction by the Assessing Officer to assess or reassess under section 147 of the Act. The want of a valid notice affects the jurisdiction of the Assessing Officer to proceed with the assessment and thus, affects the validity of the proceedings for assessment or reassessment. A notice issued under section 148 of the Act against a dead person is invalid, unless the legal representative submits to the jurisdiction of the Assessing Officer without raising any objection. Therefore, where the legal representative does not waive his right to a notice under section 148 of the Act, it cannot be said that the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever informed the respondent with regard to the demise of his father late Shri Kanubhai Nagjibhai Rajpara and names and addresses of legal representatives have never been furnished. He also submitted that the Permanent Account Number of late Shri Kanubhai Nagjibhai Rajpara remained active which indicated for the purpose of department that the taxpayer was alive. Moreover, he relied on provisions of section 159 of the Act to contend that unless information of deceased taxpayer has been provided and uploaded by the legal representatives, no action can be taken against the legal representatives and no notice can be issued against the legal representatives and, therefore, impugned notice under section 148 of the Act is validated pursuant to provisions of section 292B of the Act. It was submitted that mentioning the name of the deceased person in the notice is nothing but can only be said to be a mistake or omission and, therefore, such notice is a valid notice under section 148 of the Act and the proceedings pursuant to such notice are valid proceedings. 7. In the present case, the assessee-petitioner has at first point of time objected to the issuance of notice under section 148 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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