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TMI Blog2020 (9) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... y in the case hence the entire proceeding are abinitio void. 4. On the facts & circumstances of the case & in law also ld. AO grossly erred in passing the ex-party order u/s 144 of the Income Tax Act 1961. 5. That the reasons recorded were vague, because as per reasons recorded assessee has deposited cash of Rs. 30,00,000/- in bank account whereas the assessment has been made for unexplained cash deposit of Rs. 3 lacs only. Ld. CIT(A) also erred in confirming the same. 6. On the facts & circumstances of the case ld. AO grossly erred in making addition of Rs. 3,00,000/- on account of Unexplained income (cash deposit into bank). Ld. CIT(A) also erred in confirming the same. 7. On the facts & circumstances of the case & in law also Ld. AO grossly erred in not giving the proper opportunity of hearing to the legal heirs of assessee. 8. On the facts & circumstances of the case & in law also Ld. AO grossly erred in not providing the details of cash deposit into bank even after written request vide letter dated 22/11/2017. Even name of bank was not communicated to the legal heirs." 2. The hearing of the matter was scheduled for today through video conferencing in view of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ory requirement under section 148(1) of the Act. In support, reliance was placed on the decision of the Hon'ble Madras High Court in case of Alamelu Veerappn vs ITO (writ petition no. 30060 of 2017) and the decision of the Hon'ble Rajasthan High Court in case of Kesar Devi vs CIT 321 ITR 341 besides the decision of Hon'ble Delhi High Court in case of Rajendra Kumar Sehgal and Vipin Walia. 6. Per contra, the ld. DR submitted that on the basis of the information available on record, action u/s 147 was initiated in the case of assessee and after taking prior approval from the competent authority, notice u/s 148 was issued on 31.03.2017 and served through registered post. Therefore, the proceedings initiated were as per law and which has also been confirmed by the Ld. CIT(A). It was further submitted that in absence of any details with the department except the fact that the assessee had deposited certain sum of money in his bank account, it was not possible for the AO to ascertain the existence of status of the assessee. Therefore, the notice u/s 148 was rightly issued in the name of the assessee and proceedings were as per law, as mentioned by the AO in his reassessment order. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded on 15.03.2013 and thereafter the notice u/s 148 was issued in the name of assessee on 20.03.2013. Therefore, at the time of issuance of the notice u/s 148, the assessee had already expired and the notice was thus issued in the name of deceased assessee. Further, we find that there is no subsequent notice u/s 148 which has been issued by the Assessing Officer on the legal heirs of the deceased assessee. In this regard, we refer to the decision of Delhi High Court in case of Vipin Walia vs. ITO (supra) wherein referring to the provisions of section 159 of the Act, it was held as under: "11. Section 159(2) of the Act makes a specific reference to a reassessment proceeding under Section 147 of the Act. While Section 159(2)(a) of the Act talks of a proceeding already taken against an Assessee 'before his death'. Section 159(2)(b) of the Act envisages any proceeding which could have been taken against the deceased if he had survived. It permits such a proceeding to be taken against the LRs of the deceased Assessee even if it had not taken while the Assessee was alive. Section 159(2)(b) is relevant as far as the present case is concerned. 12. What was sought to be done by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of the assessee and that therefore, the Department was justified in directing the petitioner to co-operate 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, the Department sent the notice to the petitioner - his spouse to participate in the proceedings. This notice was well beyond the period of limitation, as it has been issued after 31.3.2017. If we approach the problem sans complicated facts, a notice issued beyond the period of limitation i.e. 31.3.2017 is a nullity, unenforceable in law and witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assessment proceedings on 30.11.2016 which is reproduced as under :" Thus it is clear that the AO issued the notice under section 148 on 14.03.2016 whereas the assessee was already died on 25th April, 2015 as per the Death Certificate issued by the Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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. ITO (order dated 7.6.2018 in Writ Petition No.30060/2017). Relying upon the judgment in case of Chandreshbhai Jayantibhai Patel (supra), he contended that this Court have dealt in detail with regard to the issue of notice under section 148 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 notice issued against the dead person is in conformity with or according to the intent and purpose of the Act which requires issuance of notice to the assessee, whereupon the Assessing Officer assumes jurisdiction under section 147 of the Act and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubhai 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 the Act and has not participated or filed any return pursuant to notice. Therefore, legal representatives not having waived requirement of notice under section 148 of the Act and not having submitted to the jurisdiction of the Assessing Officer pursu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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