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TMI Blog2019 (6) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... sequently a notice u/s 143(2) was issued in the name of Smt. Tanguturi Mahalakshmamma, L/R of the assessee and completed the assessment u/s 143(3) r.w.s. 147 of the Act on total income of Rs. 5,15,660/- and raised the tax demand of Rs. 1,15,580/-. 4. Aggrieved by the order of the AO, the assessee went on appeal before the CIT(A) and challenged the validity of issue of notice u/s 148 in the name of dead person and framing the assessment in the name of Smt. Tanguturi Mahalakshmamma, wife of the assessee. The Ld.CIT(A) held that since the notice u/s 143(2) was issued in the name of Smt. Tanguturi Mahalakshmamma , w/o Late Sri Tanguturi Venkata Subbayya, legal heir of the assessee, there is no infirmity in the action taken by the AO, accordingly upheld the validity of issue of notice u/s 148 and dismissed the assessee's appeal on this ground. 5. Against the order of the Ld.CIT(A), the assessee has filed appeal before this Tribunal. During the appeal hearing, the Ld.AR submitted that notice u/s 148 was issued in the name of deceased person Shri Tanguturi Venkata Subbayya who expired on 20.01.2011. Hence, argued that notice issued on a dead person is invalid, consequent assessment fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equent to the death of the assessee, reassessment proceedings were initiated and the notice u/s 148 was issued in the name of the dead person. In response to the notice issued by the AO, the wife of the deceased had intimated the death of the assessee. However, no effort was made by the AO to bring the legal heir on record, instead, the AO proceeded to complete the assessment in the name of the legal heir without issuing notice u/ 148. The Ld.AR relied on the provisions of section 159 of the Act. For the sake of clarity and convenience, we extract relevant part of the provisions of section 159 which 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 the legal representative in accordance with the provisions of sub-section (1),- (a) any proceeding taken against the deceased before his death shall be deem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.1.2010 is not in dispute. If this fact is not disputed, then the notice issued in the name of the dead person is unenforceable in the eye of law. 15. The Department seeks to justify their stand by contending that they were not intimated about the death of the assessee, that the legal heirs did not take any steps to cancel the PAN registration in the name of the assessee and that therefore, the Department was justified in directing the petitioner to cooperate in the proceedings pursuant to the impugned notice. 16. The settled legal principle being that a notice issued in the name of the dead person is unenforceable in law. If such is the legal position, would the Revenue be justified in contending that they, having no knowledge about the death of the assessee, are entitled to plead that the notice is not defective. In my considered view, the answer to the question should be definitely against the Revenue. 17. This Court supports such a conclusion with the following reasons : Admittedly, the limitation period for issuance of notice for reopening expired on 31.3.2017. The impugned notice was issued on 30.3.2017 in the name of the dead person. On being intimated about the death ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 147/ 148 of the Act and at that stage, the son of the deceased approached the High Court of Delhi. The High Court of Delhi pointed out that what was sought to be done by the Income Tax Officer was to initiate proceedings under Section 147 of the Act against the deceased assessee for the assessment year 2008-09, for which, the limitation for issuance of notice under Section 147/148 of the Act was 31.3.2015 and on 02.7.2015 when the notice was issued, the assessee was already dead and if the Department intended to proceed under Section 147 of the Act, it could have done so prior to 31.3.2015 by issuing the notice to the legal heirs of the deceased and beyond that date, it could not have proceeded in the matter even by issuing notice to the legal representatives of the assessee. The decision in Vipin Walia fully supports the case of the petitioner herein. 22. The decision in the case of Vipin Walia was followed in the decision of the High Court of Gujarat in the case of Rasid Lala, in which, the re- assessment proceedings were initiated against the dead person, that too, after a long delay. The Court pointed out that even if the provisions of Section 159 of the Act are attracted, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... responded. This in fact is the intent and purpose of the Act. Therefore, Section 292B of the Act cannot be invoked to correct a foundational / substantial error as it is meant so as to meet the jurisdictional requirement. Therefore, both the impugned notice dated 29.3.2018 and the impugned order dated 13.11.2018 are quashed and set aside. It is made clear that this order will not prohibit the Revenue from issuing a fresh notice for reassessment, if requirement of Sections 147/ 148 of the Act are satisfied, including the limitation period therein." The Ld.DR did not submit any other case law or the decision supporting the notice issued on a dead person is valid or to controvert the submissions made by the Ld.AR. Therefore, we hold that the notice u/s 148 on a dead person is invalid and accordingly quashed. Consequent assessments made u/s 144 r.w.s. 147 is annulled." 7.1. In the instant case, there is no dispute that the assessee had expired and notice was issued on dead person. Though subsequently, notice u/s 143(2) was issued in the name of his wife and the same cannot validate the invalid notice. The notice issued on a dead person is held to be invalid as discussed earlier in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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