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TMI Blog2020 (10) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... see as unexplained deposit. The appellant craves leave to add, amend, alter, delete or modify any of the above grounds of appeal before or at the time of hearing." The hearing of the appeal is concluded through Video Conference due to prevailing condition of COVID 19 pandemic. Ground No. 1 is regarding validity of notice issued under section 148 in the name of the deceased assessee. 2. The assessee late Shri Sanwarlal Choudhary died on 12.06.2012. He was retired Government employee and was having income from Pension besides Agricultural Income. The AO received the information about the deposit of cash in the bank account of the assessee during the previous year relevant to assessment year 2011-12 of Rs. 10,99,500/- in Savings Bank account and Time Deposit of Rs. 5,00,000/-. Accordingly, the AO issued notice under section 148 on 28th March, 2018 in the name of deceased assessee. The legal representative of the assessee raised the objection against the validity of notice under section 148 vide letter dated 05.07.2018 which was disposed off by the AO vide order dated 21st November, 2018. Consequently, the AO completed the assessment under section 143(3) read with section 147 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the invalid notice issued under section 148 into valid one. Though the AO has stated that a letter was written to the assessee to explain the source of cash and time deposit in the bank account of the assessee, however no reference of date of letter is mentioned by the AO. Therefore, in the absence of any details or copy of the letter these averments made by the AO are very vague. Further, once the notice under section 148 was issued in the name of the deceased assessee and subsequently the AO came to know that the assessee had already expired, then it was incumbent upon the AO to serve a fresh notice under section 148 on the Legal Heir, if limitation for issuing the notice is available. In the case in hand it is apparent that the notice under section 148 was issued in the name of the deceased assessee on 28th March, 2018 and the AO has not issued any further notice to the Legal Representative of the deceased assessee. It is also not in dispute that the Legal Representative of the assessee raised the objection against the notice issued under section 148 vide letter dated 05.07.2018 which was disposed off by the AO vide order dated 21st November, 2018 and the issue regarding validi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 re-computation 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 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 the 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. (4) Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n regard to the issuance of notice, to a deceased individual, is, in the opinion of this court, untenable. The phraseology of Section 292BB precludes the contention. That provision reads as follows: "292BB. Notice deemed to be valid in certain circumstances.-Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this Act that the notice was- (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner: Provided that nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment." 9. If the original assessee had lived and later participated in the proceedings, then, by reason of Section 292BB, she would have been precluded from saying that no notice was factually served upon her. When the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Blue Moon [2010] 188 Taxman 113/321 ITR 362 (SC). 12. In view of the foregoing conclusions, the impugned reassessment notice and all consequent proceedings- including the reassessment order-have to be and are, hereby quashed. The writ petition is accordingly allowed, but without order on costs." The Hon'ble High Court has held that a notice issued under section 148 in the name of the deceased person suffers from illegality which is not a curable defect. Similarly, this Tribunal in the case of late Shri Bhura Ram vs. ITO (supra) has considered this issue in para 8 to 11 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 in the name of deceased assessee. Further, we find that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." The Tribunal after considering the decision of Hon'ble Delhi High Court in case of Vipin Walia vs. ITO (supra) as well as the decision of Hon'ble Madras High Court in case of Alamelu Veerappan vs. ITO, 95 taxmann.com 155 (Madras) has held that notice issued under section 148 in the name of the deceased assessee is a nullity in the eyes of law. Consequently, the proceedings initiated under section 147/148 are vitiated and liable to be quashed. Accordingly in the facts and circumstances of the case and following the decisions as discussed above, we hold that the no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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