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TMI Blog2020 (9) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... nvalid for want of valid notice as well as the assessment framed against the dead person. - Decided in favour of assessee. - ITA No. 671/JP/2019 - - - Dated:- 26-8-2020 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Sh. Ashish Sharma For the Revenue : 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 27.02.2019 wherein the assessee has taken the following grounds of appeal:- 1. That the authorities below have grossly erred in upholding the validity and sanctity of re-assessment notice issued u/s 148 to the person who had left for heavenly abode even before issuing the notice. 2. That the authorities below have failed to appreciate the fact of re-assessment notice and consequential re-assessment order having become null and void as have been issued to and passed in respect of non-est. person. 3. That the Commissioner of Income-Tax (Appeals) has grossly erred in sustaining the addition of ₹ 26,26,772/- on account of long term capital gains. 2. Briefly stated, the facts of the case are that the assessme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ost. 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 the reasons so recorded before the issuance of notice u/s 148, it was mentioned that the assessee has not filed his return of income for the year under consideration and was not even having any PAN. In absence of any details with the department except the fact that the assessee had sold an immoveable property, 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 was further submitted that there was no intimation about the death of the assessee to the Department and thereafter, for the first time on 17.10.2016, the son the deceased assessee produced the death certificate of the deceased assessee and thereafter, produced the particulars of the family members of the deceased assessee and has not raised any such objections during the course of reassessment proceedings and therefore, raising such objections at this stage of the proceedings cannot be allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard, 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 the ITO was to initiate proceedings under Section 147 of the Act against the deceased Assessee for AY 2008-09. The limitation for issuance of the notice under Section 147/148 of the Act was 31st March 2015. On 27th March 2015, when the notice was issued, the Assessee was already dead. If the Department intended to proceed under Section 147 of the Act, it could have done so prior to 31st March 2015 by issuing a n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out 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 without jurisdiction. Thus, merely because the Department was not intimated about the death of the assessee, that cannot, by itself, extend the period of limitation prescribed under the Statute. Nothing has been placed before this Court by the Revenue to show that there is a statutory obligation on the part of the legal representatives of the deceased assessee to immediately intimate the death ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 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 Government of Rajasthan. The AO has not mentioned anything about the service of the notice issued under section 148 in the name of the deceased assessee. Therefore, it appears that without valid notice, under section 148 as well as service and without noting the status and the reasons of non service of the said notice the AO proceeded to frame the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue 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 against a dead person after analysing the provisions of section 2(7), 2(29) read with sections 159 and 292B of the Act. He placed reliance on the following findings of the court in the said judgment: 16. On behalf of the revenue, it has been contended that issuance of the notice to the dead assessee is merely a technical defect which could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consequently, the provisions of section 292B of the Act would not be attracted. In the opinion of this court, the decision of this court in the case of Rasid Lala v. Income Tax Officer, Ward-1(3)(6) (supra) would be squarely applicable to the facts of the present case. Therefore, in view of the provisions of section 159(2)(b) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 pursuant to impugned notice, provisions of section 292A of the Act also would not be attracted and hence notice under section 148 of the Act has to be treated as invalid. 8. The facts in the present case are identical to the case of Chandreshbhai Jayantibhai Patel (supra), as in the facts of the present case also fath ..... X X X X Extracts X X X X X X X X Extracts X X X X
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