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TMI Blog2022 (9) TMI 1189X X X X Extracts X X X X X X X X Extracts X X X X ..... r (AY) 2017-18 vide order u/s. 143(3) dated 23/12/2019. 2. The appeal is delayed by 09 days, which though has been satisfactorily explained by the appellant per her affidavit dated 29/04/2022. The appeal was, accordingly, admitted and heard. 3. We shall take up the assessee's legal challenges to the impugned revision order, setting aside the assessment under reference for de novo consideration, first. The first such is the revision being invalid as the notice u/s. 263 dated 30/12/2021 was issued in the name of a deceased person; Shri Rama Rao Kapale (RK) having expired on 14/02/2021 (PB pgs.42). No fresh notice u/s. 263 was issued on the appellant, the legal representative (LR) and daughter of RK, i.e., on her informing the ld. Pr. CIT of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question of whether the notice on a dead person is a nullity or is a procedural irregularity was, in its view, rendered academic under the circumstances. The correspondence with the facts in the instant case is striking. Non-acceptance of the said decision in Hemanathan (M.)(supra) by the Hon'ble Madras High Court would not make it any less binding on us. In CIT vs. Premium Capital Markets & Investment Ltd. [2005] 275 ITR 260 (MP), the participation by the assessee in the assessment proceedings, stretching to over a year, and without raising any issue qua the service of notice u/s. 143(2), was construed by the Hon'ble Court as a valid service and, in any case, as disentitling the assessee to raise the issue of service of the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect of ceasure to exist of amalgamating company (Pr. CIT vs. Mahagun Realtors (P.) Ltd. [2022] 443 ITR 194 (SC)), the same would continue to hold qua a valid assumption of jurisdiction. The issue thus boils down to a valid assumption of jurisdiction and grant of proper opportunity. Our reference to "service of notice‟ hereinbefore is only toward the latter, which aspect is not in dispute in the instant case. 4.2 On the aspect of jurisdiction, reference during hearing was made to CIT vs. Amitabh Bachchan [2016] 384 ITR 200 (SC). It stands clarified therein, as had been earlier by the Apex Court in Gita Devi Aggarwal v. CIT [1970] 76 ITR 496 (SC) and CIT vs. Electro House [1971] 82 ITR 824 (SC), also referred to by it, that it was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dents, including by the Apex Court, where there is no lack of jurisdiction, the proceedings cannot be questioned where the LR is impleaded or otherwise joins the proceedings, and is allowed opportunity of being heard before passing the order under reference; the defects in procedure - except where fundamental, affecting the jurisdiction, being saved by sec. 292B. Reference therein is also made to Estate of Late Rangalal Jajodia v. CIT [1971] 79 ITR 505 (SC), which has a bearing on the effect of a defect in the assessment arising out of want of notice to the LR and mis-description or mistake of name in the assessment order. Section 159, it explains, does not bear upon the jurisdiction of the taxing authority, but deals with matters incidenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintainable, both on facts and in law. This is as agricultural income is surely one of the sources of cash deposited by the assessee, to verify which the return was selected for scrutiny. Two, that the assessee does not own any agricultural land is an admitted fact. It is only where the land is either owned or taken on rent (as per revenue record), that the income from agricultural activity could be said to be agricultural. The AO ought to have, therefore, exceeded his ambit to verify the veracity of the claims as to agricultural income, exempt u/s. 10, i.e., besides being in explanation of the source of the cash deposit. He having not done so, by seeking the approval of his range head, as enjoined upon him by the Board Circular, binding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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