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TMI Blog2020 (12) TMI 159X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri A. K. Garodia, Accountant Member And Smt. Beena Pillai, Judicial Member For the Assessee : Shri. Narendra Sharma, Advocate For the Revenue : Shri. Priyadarshi Mishra, JCIT (DR) ORDER PER A. K. GARODIA, ACCOUNTANT MEMBER: This appeal is filed by the assessee and the same is directed against the order of learned CIT(A)-3, Bengaluru, dated 18.11.2019, for Assessment Year 2008-09. The grounds raised by the assessee are as under: 1. The Order of the learned Commissioner of Income Tax [Appeals] 3, Bengaluru, passed under section 250 of the Act dated 18/11/2019 in so far as it is against the appellant is opposed to law, equity, weight of evidence, probabilities and the facts and circumstances in the Appellant' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of a deceased person i.e., Late Sri. M. N. Harinath even though when the department was in knowledge about the demise of the Appellant on the facts and circumstances of the case 6. Without prejudice, the learned Commissioner of Income Tax [Appeals], erred in confirming the addition of Short Term Capital Gains amounting to ₹ 1,30,00,000/- made by the learned assessing officer in the course of assessment proceedings by holding the impugned land conveyed to be a capital asset and invoking provisions of Section 50C of the Act thereof on the facts and circumstances of the case. 7. Without further prejudice to the above, the learned Commissioner of Income Tax [Appeals] failed to appreciate that the impugned land sold by the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.06.2015 were issued in the name of the deceased person i.e. person i.e., late Shri. M. N. Harinath even though the Department was in knowledge about the death of the assessee and therefore, such notices are bad in law and consequent Assessment Order is also bad in law. In support of this contention, he placed reliance on the following judicial pronouncements: a) Tribunal order of Delhi Bench of the Tribunal rendered in the case of ITO Vs. late Shri. Somnath Malhotra through Smt. Raj Rani Malhotra in ITA No.519/Del/2013 dated 02.07.2015 available on pages 28 to 34 of the Paper Book. b) Judgment of Hon ble Delhi High Court rendered in the case of Rajender Kumar Sehgal Vs. ITO as reported in 101 taxmann.com 233 (Del) copy available on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N. Harinath had expired on 31.03.2009 and copy of the death certificate was enclosed. Thereafter, he pointed out that on page 20 of the Paper Book is another letter dated 11.06.2012 issued by ITO, Ward-2(3), Bengaluru, to Mr. M. N. Harinath on 11.06.2012 asking for some details and in reply to this letter submitted with the Department on 18.07.2012, copy available on page 21 of the Paper Book also, the legal heir of the said deceased assessee has intimated the Department that Mr. M. N.Harinath had had expired on 31.03.2009 due to heart problem. He submitted that from these facts, it is apparent that the Department was in knowledge of the death of the assessee but inspite of this, the notices under section 148 and 143(2) of the Act were issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of these facts, now we examine the applicability of the various judgments cited by the learned AR of the assessee. As per the Tribunal order on which reliance has been placed by the learned AR of the assessee having been rendered in the case of ITO Vs. Late Shri. Somnath Malhotra through Smt. Raj Rani Malhotra (supra), it was noted by the Tribunal in that case that notice under section 148 of the Act was issued on 31.03.2010 in the name of the deceased assessee who had already expired on 06.12.2002 and therefore, the notice issued under section 148 was invalid and the assessment framed on the basis of the said invalid notice was void-ab-initio. In the case of Rajender Kumar Sehgal Vs. ITO (supra), it was noted by Hon ble Delhi High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 263 was issued in the name of the dead assessee. Hon ble Madras High Court has duly considered the provisions of section 292BB of the IT Act and held that the very initiation of the proceedings against the dead person and the continuation of the same despite having notice of factum of the death of the assessee cannot be approved. Hence, it is seen that all these judgments support the case of the assessee that the notice under section 148 issued by the AO in the name of the deceased assessee is not valid and the Assessment Order in pursuance to such invalid notice has to be quashed. Regarding the judgments on which the learned DR of the Revenue sought to rely upon but copy not filed before us, we would like to observe that thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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