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TMI Blog2022 (5) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... and void, it is not for the adjudicating authority to advise the Commissioner as to what should he do Hence, in the absence of any opportunity to the assessee, for which the fault is attributable squarely to the PCIT is fatal and such defect being incurable, the revisionary order passed under Section 263 of the Act is also required to be quashed independently on this ground also - Decided in favour of assessee. - I.T.A. No. 1853/DEL/2021 - - - Dated:- 3-3-2022 - SHRI AMIT SHUKLA, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER Appellant by: Ms. Swati Talwar, Adv. Respondent by: Shri Ajay Kumar, Sr.D.R. ORDER PER PRADIP KUMAR KEDIA, A.M.: The captioned appeal has been filed at the instance of the legal heir and wife of the deceased-assessee (Vas Dev) against the revisional order of the Principal Commissioner of Income Tax, Faridabad ( PCIT in short) dated 28.03.2021 passed under Section 263 of the Income Tax Act, 1961 (the Act) whereby the assessment order passed by the Assessing Officer dated 15.11.2018 under Section 143(3) read with Section 147 of the Act was sought to be set aside for reframing the assessment in terms of supervisor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the said due date, then your personal attendance is not required. You also have the option to file your submission from the e-filing portal using the link: incometaxindiaefiling.gov.in The assessment in this case was completed u/s 143(3)/147 vide order dated 15.11.2018 by the Assessing Officer and returned Income of Rs.1,35,682/- was accepted. 2. On perusal of the assessment records of the aforesaid assessee for the A.Y. 2011-12, following discrepancies are noticed: The assessee had not filed Income Tax Return for A.Y. 2011-12. Later on the case was selected for scrutiny under 148 as the assessee has deposited cash of Rs. 1,00,01,000/- on various dates in his bank accounts maintained with State Bank of Patiala. Subsequent to service of Notice u/s 148, the assessee filed ITR declaring income of Rs. 1,35,682/-. From the records, it is observed that the assessee submitted bank statement which depicted cash deposits of Rs.50,01,000/- received against sale of land. The assessee submitted that the land in consideration was agricultural land and not a capital asset as population of Farrukhnagar MC in last census was only 9521 which is less than defined in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e., after the expiry of the limitation on 31.03.2021. However, the aforesaid show cause notice was later modified and the fresh notice dated 25.03.2021 was issued through e-mail and the matter was fixed for hearing on the immediate next date on 26.03.2021 in grave violation of principle of natural justice. There was no participation on behalf of the deceased-assessee in the proceedings and no further opportunity was given to the assessee/legal heir to defend his case. The revisional order was summarily passed on 28.03.2021 whereby the assessment order in question and the revision was set aside for fresh consideration. It was submitted by the ld. counsel for the assessee that the revisional order is not sustainable in law in the absence of mandatory requirement of opportunity enshrined in Section 263 itself. It was thus urged for cancellation of the revisional order passed under Section 263 of the Act in question. 7. Ld. Sr.DR, on the other hand, relied upon the contents of the revisional order. 8. We have heard the rival submissions and perused the material placed before us and case laws cited. Firstly, we consider it expedient to address ourselves on legality of show cause n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should be issued in the name of the correct person. This requirement of issuing notice 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 Commissioner of Income Tax, Circle 16(2), Mumbai Ors., (2019) 2 TMI1209- Bombay High Court], 27. xxxxx Consequently, in view of the above, a reopening notice under Section 148 of the Act, 1961 issued in the name of a deceased assessee is null and void. XXXX.XX AS IN THE PRESENT CASE PROCEEDINGS WERE NOT INITIATED/PENDING AGAINST THE ASSESSEE WHEN HE WAS ALIVE AND AFTER HIS DEATH THE LEGAL REPRESENTATIVE DID NOT STEP INTO THE SHOES OF THE DECEASED ASSESSEE. SECTION 159 OF THE ACT. 1961 DOES NOT APPLY TO THE PRESENT CASE. 30. Section 159 of the Act, 1961 applies to a situation where proceedings are initiated/pending against the assessee when he is alive and after his death the legal representative steps into the shoes of the deceased assessee. Since that is not the present factual scenario, Section 159 of the Act, 1961 does not apply to the present case. 31. xxxxx THERE IS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequently, the applicability of Section 292BB of the Act, 1961 has been held to be attracted to an assessee and not to legal representatives. 9. The above judgment was followed by this Court in W.P.(C) No.2678/2020 titled Mrs. Sripathi Subbaraya Manohara L/H Late Sripathi Subbaraya Gupta vs. Principal Commissioner of Income Tax 22, N.Delhi Anr. 10. In the present case also, as the notice under Section 148 of the Act was issued against a dead person, the same is null and void and all consequent proceedings/orders, including the assessment order and the subsequent notices, being equally tainted, are liable to be set aside. 11. Consequently, the impugned notice dated 30.03.2019 issued under Section 148 of the Act is set aside along with all consequential proceedings/notices/assessment orders. 12. The petition is allowed. There shall be no order as to costs. 9. In terms of the explicit observations made in the judgment of the Hon ble Delhi High Court, we find considerable merit in the plea on behalf of the legal heir for the assessee that the entire proceedings beginning from issue of show cause notice and culminating in revisional order under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oid order by remitting it back to the Commissioner for giving a fresh opportunity of passing the order, after giving the assessee an opportunity of hearing, cannot be given. In a case, where it is possible for the Commissioner to pass a fresh order at this stage in accordance with the scheme of the Act, he can very well do so but in case the time limit for passing such order has already expired, such time limit cannot be extended by directing him to pass the order after giving an opportunity of hearing to the assessee. Otherwise, this would tantamount to giving premium to the authority committing default. The finality of the assessment cannot be disturbed for the failure of the PCIT to obdurately adhere to the explicitly prescribed requirement of opportunity to assessee. 13. Hence, in the absence of any opportunity to the assessee, for which the fault is attributable squarely to the PCIT is fatal and such defect being incurable, the revisionary order passed under Section 263 of the Act is also required to be quashed independently on this ground also. 14. Hence, looking from any angle, the impugned revisional order passed under Section 263 of the Act is set aside and quashed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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