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TMI Blog2020 (12) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... HI, A. M. 1. These are three appeals filed by the assessee against the order of the ld. CIT (Appeals)-28, New Delhi, dated 20.02.2019 passed as a consolidated order for the Assessment Years 2008-09, 2009-10 and 2010-11. This is challenged by the assessee by the above three separate appeals. The assessee is challenging the re-opening of the assessment under Section 148 of the Income Tax Act, 1961 (the Act) issued in the name and under the PAN number of a deceased assessee. 2. The brief facts are required to be stated succinctly that one Shri Subhash Chandra Agarwal having Permanent Account Number AANMPA3967D passed away on 4th December, 2014. On 16th January, 2015 the Income Tax Officer, Investigation, issued a query letter in the name of deceased person Shri Subhash Chandra Agarwal raising certain queries. On 23rd January, 2015, Legal heir of Late Shri Subhash Chandra Agarwal, the wife of the assessee, namely, appellant in these appeals, Ms. Lalita Agarwal informed the Revenue about the demise of Shri Subhash Chandra Agarwal on 4th December, 2014 submitting the copy of death certificate. Such letter was duly acknowledged by the Revenue and this fact is evident from the first page o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned Authorised Representative challenges that notice issued under Section 148 in the name of deceased and importantly on the Permanent Account Number of the deceased is invalid and all subsequent proceedings is null and void. To support his contention, he relied on the decision of the Hon ble Delhi High Court in the case of Savita Kapila Vs. ACIT dated 16th July, 2020. He also submitted that in the present case the assessee informed the Revenue about the death of Mr. Subhash Chandra Agarwal on 23rd January, 2015. He otherwise stated that there is no statutory obligation on the legal heirs to intimate the death of the assessee to the Assessing Officer. He further stated that even otherwise the orders are not sustainable in law because the proceedings have been initiated against the deceased. The ld. AR also dealt with the issue by extracting from the site of the Department that what is the Permanent Account Number. He also dealt with the decision of the Hon ble Delhi High Court in Savita Kapila (supra) and submitted that the case is squarely covered by that decision in favour of the assessee. 7. The ld. Departmental Representative relied upon the order of the ld. CIT (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on December 21, 2018. The deceased-assessee is survived by two sons and two daughters. 4. Notice dated March 31, 2019 under section 148 of the Act, 1961, for the assessment year 2012-13 was issued, i.e., on the last date of limitation, in the name of the deceased-assessee, Shri Mohinder Paul Kapila with PAN : ASXPK1666P and sent at his last known address known to the Income-tax Department, i.e., Flat No. 286, 1st Floor, D Flats, Sector 9, Pkt-1, Dwarka, New Delhi 110075. The impugned notice could not and was never served upon Late Shri Mohinder Paul Kapila. Thereafter the Assistant Commissioner of Income-tax, Circle 43(1), Delhi (hereinafter referred to as Assessing Officer ) issued notices dated August 22, 2019, August 27, 2019 and September 18, 2019 to the deceased-assessee. The said notices were also neither served upon the assessee nor upon any of his legal heirs. 5. On October 10, 2019, a show-cause notice was issued to the deceased- assessee to explain why penalty under section 271(1)(b) of the Act, 1961, should not be imposed for failure to comply with notice issued under section 142(1) of the Act, 1961. 6. Pursuant to another notice issued under section 133(6) of the Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. (See Sumit Balkrishna Gupta v. Asst. CIT [2019] 414 ITR 292 (Bom) ; [2019] 2 TMI 1209-the Bombay High Court). Page No : 0511 27. In Chandreshbhai Jayantibhai Patel v. ITO [2019] 413 ITR 276 (Guj) ; [2019] (1) TMI 353-the Gujarat High Court has also held (page 290 of 413 ITR) : the question that therefore arises for consideration is whether the notice under section 148 of the Act issued against the deceasedassessee 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 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 perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 159 of the Act can be invoked only if the proceedings have already been initiated when the assessee was alive and was permitted for the proceedings to be continued as against the legal heirs. The factual position in the instant case being otherwise, the provisions of section 159 of the Act have no application . In Rajender Kumar Sehgal (supra), a Co-ordinate Bench of this court has held, (page 291 of 414 ITR) This court is of the opinion that the absence of any provision in the Act, to fasten revenue liability upon a deceased individual, in the absence of pending or previously instituted proceeding which is really what the present case is all about, renders fatal the effort of the Revenue to impose the tax burden upon a legal representative . There is no statutory requirement imposing an obligation upon legal heirs to intimate the death of the assessee. 32. This court is of the view that in the absence of a statutory provision it is difficult to cast a duty upon the legal representatives to intimate the factum of death of an assessee to the Income-tax Department. After all, there may be cases where the legal representatives are estranged from the deceased- assessee or the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been followed in the case of the respondent while dismissing the special leave petition for the assessment year 2011-12. In doing so, this court has relied on the decision in Spice Enfotainment. 34. Consequently, the legal heirs are under no statutory obligation to intimate the death of the assessee to the Revenue. Section 292B of the Act, 1961 has been held to be inapplicable, vis-a-vis, notice issued to a dead person in Rajender Kumar Sehgal (supra), Chandreshbhai Jayantibhai Patel (supra) and Alamelu Veerappan (supra). 35. This court is of the opinion that issuance of notice upon a dead person and non-service of notice does not come under the ambit of mistake, defect or omission. Consequently, section 292B of the Act, 1961 does not apply to the present case. 36. In Sky Light Hospitality (supra) notice was issued to Sky Light Hospitality Pvt. Ltd. instead of Sky Light Hospitality LLP. In that factual context, this court had observed, Noticeably, the appellant having received the said notice, had filed without prejudice reply/letter dated April 11, 2017. They had objected to the notice being issued in the name of the company, which had ceased to exist. However, the reading of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson. Hence, the second contention cannot also be upheld . 39. Even a Co-ordinate Bench of this court in Rajender Kumar Sehgal (supra) has held (page 291 of 414 ITR) : 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 notice was issued in her name- when she was no longer of this world, it is inconceivable that she could have participated in the reassessment proceedings, (nor is that the Revenue's case) to be estopped from contending that she did not receive it. The plain language of Page No : 0515 section 292BB, in our opinion precludes its application, contrary to the Revenue's argument . 40. Consequently, the applicability of section 292BB of the Act, 1961 has been held to be attracted to an assessee and not to legal representatives. Conclusion 41. To conclude, the arguments advanced by the respondent are no longer res integra and have been consistently rejected by different High Courts including this jurisdictional court. In view of consistent, uniform and settled position of law, to accept the submissions of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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