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TMI Blog2021 (2) TMI 950X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the assessee on 9.6.2016, in response to which, the Authorised Representative of the assessee appeared before the AO and on 20.06.2016 certain written submissions were filed along with an affidavit of the son of the assessee stating that the assessee has passed away and that he had gifted the property to his son and daughter. The AO, therefore, completed the assessment bringing the capital gains to tax in the hands of his son. He applied the provisions of section 50C and brought the assessee's share of the sale consideration to tax. 3. Aggrieved, the legal heir of the assessee preferred an appeal before the CIT (A) stating that the assessee has passed away on 14.12.2015 and the notice u/s 148 dated 8.3.2016 issued on a dead person, was an invalid notice and therefore, the assessment order is not sustainable. However, The CIT (A) dismissed the assessee's appeal and the assessee is in second appeal before the Tribunal by raising the following grounds of appeal: "1. The order of the learned CIT (A) is against the law, weight of evidence and probabilities of case. 2. The learned CIT (A) ought to have appreciated that the notice u/s 148 is not served as per the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and to issue notices u/s 148 of the Act to the L/Rs. In fact, the notice u/s 148 has been issued on a dead person and therefore, it is an invalid notice and the consequent assessment on the LRs without issuing the notice u/s 148 to the LRs is not sustainable. Similar facts and circumstances existed in the case of Shri A Venkateswara Rao (Supra) and the Coordinate Bench at Visakhapatnam has held as under: "6. We have heard both the parties and perused the material placed on record. In the instant case, the assessee was expired on 03.11.2009, in support, death certificate is also enclosed in the paper book. Subsequent to the death of the assessee, reassessment proceedings were initiated and the notice u/s 148 was issued in the name of the dead person. In response to the notice issued by the AO) the wife of the deceased had intimated the death of the assessee. However, no effort was made by the AD to bring the legal heir on record, instead, the AO proceeded to complete the assessment in the name of the legal heir without issuing notice u/s 148. The Ld.AR relied on the provisions of section 159 of the Act. For the sake of clarity and convenience, we extract relevant part of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017. Hon'ble Madras High Court held that the notice issued on a dead person is invalid and cannot be enforced. For the sake of clarity and convenience 1 we extract No.14-23 which reads 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. Yeeroppan 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. Veeroppan 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 standby 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 bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not a curable defect for the Revenue to invoke Section 292B of the Act. 21. All the above reasons are fully supported by the decision in the case of Vipin Walia. In that case, the notice dated 27.3.2015 was issued under Section 148 of the Act to the assessee, who died on 14.3.2015. The validity of the said notice was put to challenge. The Income Tax Officer took a stand that since the intimation of death of the assessee on 14.3.2015 was not received by her, the notice was issued on Q dead person. However, the fact regarding the death of the assessee could not be disputed by the Department. The Department continued the proceedings under Section 147/148 of the Act and at that stage, the son of the deceased approached the High Court of Delhi. The High Court of Delhi pointed out that what was sought to be done by the Income Tax Officer was to initiate proceedings under Section 147 of the Act against the deceased assessee for the assessment year 2008- 09, for which, the limitation for issuance of notice under Section 147/148 of the Act was 31.3.2015 and on 02.7.2015 when the notice was issued, the assessee was already dead anti if the Department intended to proceed under Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent to the impugned notice being valid in law. Thus, a notice which has been issued in the name of the dead person is also not protected either by provisions of Section 292B or 292BB of the Act. This is so as the requirement of issuing a notice in the name of correct person is the foundational requirement to acquire jurisdiction to reopen the assessment. This is evident from Section 148 of the Act, which requires that before a proceeding can be taken up for reassessment, a notice must be served upon the assessee. The assessee on whom the notice must be sent must be a living person i.e legal heir of the deceased assessee, for the same to be responded. This in fact is the intent and purpose of the Act. Therefore, Section 292B of the Act cannot be invoked to correct a foundational / substantial error as it is meant so as to meet the jurisdictional requirement. Therefore, both the impugned notice dated 29.3.2018 and the impugned order dated 13.11.2018 are quashed and set aside. It is made clear that this order will not prohibit the Revenue from issuing a fresh notice for reassessment, if requirement of Sections 147/148 of the Act are satisfied, including the limitation period therein. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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