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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 ..... e : Ms. Chanchal Meena (ACIT) ORDER PER: VIKRAM SINGH YADAV, A.M. This is an appeal filed by the assessee against the order of ld. CIT(A)-22, Alwar dated 09.10.2018 wherein the assessee has taken the following grounds of appeal:- 1. On the facts circumstances of the case ld. AO grossly erred in initiating reassessment proceedings U/s 147 of the Act. 2. On the facts circumstances of the case and in law also ld. AO grossly erred in resuming jurisdiction without serving notice u/s 148 on the appellant assessee as notice issued u/s 148 could not be served on the appellant because assessee has expired on 10/10/2015 and even no notice under 148 has been issued and served in the name of legal heirs of the assessee. Therefore, resuming jurisdiction is unlawful. 3. On the facts circumstances of the case in law also ld. AO grossly erred in not taking prior approval of superior authority 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the issuance of valid notice is a foundation for the valid re-assessment proceedings. The notice prescribed u/s 148 is not a mere procedural requirement, but is a condition precedent to the validity of reassessment proceedings. If no notice is issued or if the notice issued is shown to be invalid, the proceedings initiated by the Assessing Officer would be invalid and void. In the instant case, it was submitted that the proceedings u/s 147 were initiated against the deceased assessee who had expired on 10.10.2015 i.e. much prior to the issuance of notice u/s 148 on 31.03.2017. It was submitted that the impugned notice having been issued in the name of a deceased assessee was an invalid notice and consequently such reassessment proceedings are void ab initio. It was further submitted that such a notice could not have been served on the assessee as he had expired by that time and the notice has also not been served on the legal heirs which is a mandatory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for issue of notice u/s 148 had expired on 31.03.2017 and beyond such limitation period, no notice can be issued in the name of the legal Heirs. It is a settled legal proposition that the notice issued u/s 148 in the name of the deceased assessee is a nullity in the eyes of law. Consequently, the present reassessment proceedings initiated by issuance of notice in the name of the deceased assessee and consequent reassessment proceedings is hereby quashed for want of jurisdiction. Similar view has been taken by this Bench in case of Late Shri Bhura Ram, Jaipur vs ITO, Jaipur (ITA No. 989/JP/2015 dated 26/11/2019) and the relevant findings read as under: 8. We have heard the rival contentions and perused the material available on record. The undisputed facts are that the assessee, Shri Bhura Ram had expired on 26.11.2008 as per death certificate dated 11.02.2009 issued by Jaipur Municipal Corporation. The reasons for reopening the assessment u/s 147 were recorded 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w has been taken by the Hon ble Madras High Court in case of Alamelu Veerappan vs ITO (supra), following the decision of the Hon ble Delhi High Court in case of Vipin Walia, wherein it was held as under: 14. The issue, which falls for consideration, is as to whether the impugned notice under Section 148 of the Act issued in the name of the dead person - the said Mr.S.Veerappan is enforceable in law and the subsidiary issue being as to whether the petitioner, being the wife of the said Mr.S.Veerappan, can be compelled to participate in the proceedings and respond to the impugned notice. The fact that the said Mr.S.Veerappan died on 26.1.2010 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 co-operate in the proceedings pursuant to the impugned notice. 16. The settled legal prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitation is not a curable defect for the Revenue to invoke Section 292B of the Act. 12. In view of the aforesaid legal proposition so laid down by the various Courts, in the instant case, the notice issued u/s 148 in the name of the deceased assessee is a nullity in the eyes of law. Further, no notice u/s 148 has been issued in the name of the legal heirs and therefore, the provisions of section 159 cannot be invoked in the instant case. Consequently, the present reassessment proceedings initiated by issuance notice on the deceased assessee are being quashed for want of jurisdiction. In view of the above, rest all grounds taken by the assessee have become academic in nature and the same are dismissed as infructuous. 8. Similarly, this Bench in latest case of Shri Ramesh Kumar Jain vs ACIT, Circle 4, Jaipur (ITA no. 228/JP/2019 dated 15.05.2020) has held as under: 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not issued the notice to the address given in Form No. 35. Without going into the issue of ex parte order issued by the ld. CIT (A), we note that the AO has issued the notice under section 148 in the name of the deceased assessee and, therefore, the notice issued under section 148 itself is not a valid notice. It is not a question of service of the notice but the issuance of notice under section 148 itself is invalid as the same issued and sent in the name of the deceased assessee. In case due to unawareness of death of the assessee, if the notice issued in the name of dead person is properly followed up by the AO then the AO could have issued another notice in the name of the legal representative of the deceased assessee but without taking any steps to issue a valid and legal notice 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 Durlab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no point of time participated in the proceeding by filing the income tax return in response to the notice issued under section 148 of the Act. Had the petitioner responded to the notice by filing return of income, he could have been said to have participated in the proceedings, however, merely because the petitioner has informed the Assessing Officer about the death of the assessee and asked him to drop the proceedings, it cannot, by any stretch of imagination, be construed as the petitioner having participated in the proceedings. 17. Insofar as reliance placed upon section 292B of the Act is concerned, the said section, inter alia, provides that no notice issued in pursuance of any of the provisions of the Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a valid notice, the Assessing Officer has no authority to assume the jurisdiction under section 147 of the Act and, hence, continuation of the proceeding under section 147 of the Act pursuant to such invalid notice, is without authority of law. The impugned notice as well as the proceedings taken pursuant thereto, therefore, cannot be sustained. 6. On the other hand, learned advocate Shri Nikunt Raval with learned advocate Ms. Kalpana Raval reiterated what is stated in the orders dated 25.7.2018 and 8.8.2018 whereby the respondent has rejected the objections raised by the petitioner and held that notice under section 148 of the Act is validated as per the provisions of section 292B of the Act. He also referred to the relevant portion of the affidavit-in-reply to contend that the petitioner has never 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 reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the return of income and on that basis it cannot be presumed that the assessee is alive, more particularly, when the department is made to know about the death of the assessee prior to issuance of the impugned notice. 10. In view of the aforesaid settled legal proposition that no valid notice can be issued against a dead person, the impugned notice is required to be quashed and set aside. 11. For the foregoing reasons, petition succeeds and is accordingly allowed. Resultantly, impugned notice dated 28.3.2018 issued by the respondent under section 148 of the Act as well as further proceedings thereto are quashed and set aside. The said decision was challenged by the revenue before the Hon ble Supreme Court, however, the SLP filed by the revenue has been dismissed by the Hon ble Supreme Court vide order dated 18th October, 2019 reported in 114 taxman.com. 482. Accordingly, in the facts and circumstances of the case, when the notice issued under section 148 against the deceased person as well as the assessment framed by the AO in the name of the deceased assessee then the impugned assessment order passed by the AO is invalid for want of valid notice as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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