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TMI Blog2020 (9) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Advocate with Ms. Urvashi Sodhan AR For the Respondent : Shri L. P. Jain, Sr. D.R. ORDER PER MS. MADHUMITA ROY - JM: The instant appeal filed by the assessee is directed against the order dated 30.03.2016 passed by the Commissioner of Income Tax (Appeals) 4, Vadodara arising out of the order dated 24.03.2014 passed by the ITO, Ward-5(4), Baroda under Section 143(3) r.w.s 147 of the Income Tax Act, 1961 (hereinafter referred as to the Act ) for Assessment Year 2006-07. 2. There is a delay of 566 days in preferring the instant appeal before us. In support of the delay the Ld. Senior Counsel appearing for the assessee submitted before us that during the pendency of the re-assessment proceeding the assessee passed away on 06.08.2013. The notice under Section 142(1) of the Act was served subsequent thereto. It was the nephew of the assessee late Shri Ghanshyam H Parsana, since deceased, who was entrusted upon to approach the ITO to enquire about the proceeding pending. Ultimately the same was finalized against the assessee. The appellate order dated 30.03.2016 in rejecting the appeal preferred by the assessee was not received by the nephew of the assessee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s this that as to whether and assessment proceeding can be finalized in the name of dead person. In fact, very maintainability of the reassessment proceeding has been challenged by the assessee at the threshold of the matter. The relevant fact relating to the assessee is this that during the pendency of the appellate proceeding assessee left for his heavenly abode on 08.03.2013 which particular fact was brought to the notice of the Assessing Officer by his nephew, reflecting at Page 2 of the order passed by the AO. In spite of the same the matter was finalized against the assessee. The said fact was further brought to the notice of the Ld. CIT(A). In both the occasions the photocopy of the death certificate of the assessee Late Ghanshyam H Parsana, since deceased, was duly submitted by the nephew of the assessee before the authorities below. In spite of that the Ld. CIT(A) proceeded to finalize the matter and ultimately by and under the order dated 30.03.2016 the appeal was dismissed. It is the argument of the Ld. Senior Counsel appearing for the assessee that the assessment cannot be framed on a deceased person; the same is against the tenets of legal principle, and void ab initio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 1.9.2009 was there in the assessment record. This proves that the assessee s AR had brought to the notice of the AO the factum of the death of the assessee, Shri Vasudev Gordhandas Dapki. The AO, thereafter, instead of taking steps to bring the legal heirs on record, proceeded to frame the assessment of a dead person. Thus, this issue is covered by the decision of this Bench of the Tribunal in the case of ITO Vs. Shri Akhter Nooruddinahmed Saiyed (supra) wherein the Tribunal held as under: This is an appeal filed by the assessee against the order of the CIT(A), Valsad dated 27.12.2012 by taking the following grounds of appeal: 1. On the facts and circumstances of the case, and in law, the learned CIT(A) has erred in restricting the addition from ₹ 18,34,600/- to ₹ 1,66,949/- as G.P. @ 9.10% made on account of the undisclosed income. 2. On the facts and circumstances of the case, and in law, the learned CIT(A) has erred in deleting the addition made on account of disallowances of expenses of ₹ 7,78,364/-. 2. Notice was issued to the respondent assessee by Registered Post with Acknowledgement Due on 07.05.2014 which was returned by the posta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of Sub-section (1)- (a) Any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of deceased; (b) Any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) All the provisions of this Act shall apply accordingly. (3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. A study of Sub-section (1) of Section 159 clearly shows that it is by a legal fiction created in the provision that the legal representative of a deceased person had been made 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. The legal representative of the deceased, as has been laid down in Sub-section (3) of Section 159 are, by such legal fiction, deemed to be the assessees. Sub-section (2) of Section 159 lays down the conditions of applicability of the provisions of Section 159. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was reiterated by the Supreme Court in the case of First Addl. ITO v. Mrs. Suseela Sadanandan [1965] 57 ITR 168 where it was held that on the death of a person the Income-tax Officer has to proceed against the executor and/or legal representative of the deceased. The proposition laid down by the Supreme Court in the above cases was followed by the Calcutta High Court in the case of CIT v. Shantilal C. Mehta [1978] 113 ITR 79 where it was held that on the death of an assessee, his estate remains liable for payment of taxes accruing both before and after his death. After the death of the assessee, the assessment proceedings can only continue in the name of his legal representative. The Andhra Pradesh High Court in the case of CIT v. C.V. Raghava Reddy [1984] 148 ITR 385 following the same principle held that Under Section 159 a proceeding could be continued against the legal representative of the deceased assessee only if it had been initiated when the assessee was alive. It is thus well settled that an assessment made on a dead person would, on the face of it, be a nullity in law. 10. In the instant case, the Departmental Representative could not bring any material before us to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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