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TMI Blog2023 (6) TMI 1131X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the scope of law provided u/s 159 of the Act. We set aside the order framed u/s 263 by the PCIT in the name of a deceased person as bad in law. Appeal of assessee allowed. - ITA No. 3133/DEL/2019 - - - Dated:- 23-6-2023 - Shri N.K. Billaiya, Accountant Member, And Shri Challa Nagendra Prasad, Judicial Member For the Assessee : Shri Sudesh Garg, Adv, Ms. Bhavya Garg, Adv For the Department : Ms. Sapna Bhatia, CIT-DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- This appeal by the assessee is preferred against the order dated 20.02.2019 framed u/s 263 of the Income-tax Act, 1961 [the Act, for short] by the PCIT, Delhi - 5 pertaining to A.Y 2014-15. 2. The assessee has raised the following grounds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for A.Y 2016-17 was filed by the L/H on 29.03.2017. With these undisputed facts on record, we find that the PCIT issued notice u/s 263 of the Act on 14.12.2018 in the name of the dead person. The order u/s 263 of the Act, pursuant to the proceedings, was also framed in the name of a dead person. 6. The Hon'ble Gujarat High Court in the case of Late Bhupendra Bhikalal Desai, through his L/H Shri Raju Bhupendra Desai, in Special Civil Application No. 22441 of 2019 with Ors order dated 08.03.2021, had an occasion to consider a similar grievance and held as under: 27. A lot has been argued by Mr.M.R.Bhatt, the learned senior counsel appearing for the Revenue, by submitting that the department was not intimated about the death of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal position, would the Revenue be justified in contending that they, having no knowledge about the death of the assessee, are entitled to plead that the notice is not defective. In my considered view, the answer to the question should be definitely against the Revenue. 17. This Court supports such a conclusion with the following reasons: Admittedly, the limitation period for issuance of notice for reopening expired on 31.3.2017. The impugned notice was issued on 30.3.2017 in the name of the dead person. On being intimated about the death, the Department sent the notice to the petitioner - his spouse to participate in the proceedings. This notice was well beyond the period of limitation, as it has been issued after 31.3.2017. If we app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. Undoubtedly, the issue relating to limitation is not a curable defect for the Revenue to invoke Section 292B of the Act. 7. The SLP filed by the Revenue before the Hon'ble Supreme Court was dismissed by the Hon'ble Supreme Court vide order dated 03.09.2021 in Special Leave to Appeal (C) No. 13061/2021. 8. In light of the aforesaid judgment of the Hon'ble High Court of Gujarat, it would be pertinent to consider the provisions of section 159(1) and 159(2) of the Act, which reads as under: (1) Where a person dies, his legal representatives shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. 2) For the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 deceased assessee may have bequeathed his entire wealth to a charity. Consequently, whether PAN record was updated or not or whether the Department was made aware by the legal representatives or not is irrelevant. In Alamelu Veerappan (supra) it has been held nothing has been placed before this Court by the Revenue to show that there is a statutory obligation on the part of the legal representatives of the deceased assessee to immediately intimate the death of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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