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TMI Blog2023 (7) TMI 501X X X X Extracts X X X X X X X X Extracts X X X X ..... 033/Del/2023 - - - Dated:- 10-7-2023 - Shri Pradip Kumar Kedia, Accountant Member And Shri Yogesh Kumar U.S., Judicial Member For the Appellant : Mr. Nitin Gulati And Mr.Amol Sinha, Advocates For the Respondent : Mr. K.K.Mishra, Sr. DR ORDER PER BENCH: The captioned appeals have been filed by Assessee against the separate orders dated 16/09/2020, 17/09/2020, 02/09/2020 and 02/09/2020 passed by the Learned Commissioner of Income Tax (Appeals)-30, New Delhi [ Ld. CIT(A) , for short], for Assessment Years 2001-02, 2004-05 to 2012-13 respectively. 2. Since, the issues involved in all these appeals are common in nature; hence, they are clubbed together and disposed off by this common and consolidate order for the sake of convenience. 3. The assessee has raised following common grounds(except differences in the amount). 1. That Learned Commissioner (Appeals) has upheld the order of the Assessing Officer which is Bad in law, non-speaking order, no justification provided and no notice has been issued. 2. That Learned commissioner appeals has upheld the order where Assessing Officer has not specified Concealment of Income or furnishing inaccurate p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the grounds either before time of hearing. 4. Since the issues involved in the above appeals have identical and considering the fact that the ld. CIT(A) has dealt and decided the issue involved in the Assessment Year 2001-2002 and followed the said decision in other Assessment years, for the sake of convenience, the brief facts of the case of Assessment Year 2001-2002 are taken for consideration which are as follows:- The assessment was completed u/s 143(3) read with Section 147 of the Income Tax Act ( Act for short) in the case of Sh. Ashok Malhotra and the reassessment was subject to revision vide order dated 30/03/2011 u/s 263 of the Act. In pursuance to the order u/s 263 of the Act, the reassessment was completed on 15/12/2011 u/s 253/143(3) of the Act against Sh. Ashok Malhotra at the income of Rs. 48,98,880/- against returned income of Rs. 2,82,384/- by making following additions:- S. No. Nature of addition Amount (Rs.) 1. Income from undisclosed sources 6,62,698 2. Purchase of car 8,32,3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isputed fact that on 30/06/2016 Sh. Ashok Malhotra passed away. The order of penalty came to be passed against a dead person on 31/03/2017. It is the specific case of the Department that the Department has not been informed regarding the death of the assessee, therefore the order against the dead person came to be passed. It is well settled law that an order cannot be passed against dead person and the order passed against dead person is null and void, irrespective of the fact that the officer who passed the order had the knowledge of the death of the assessee or not. 9. As per section 159(2) of the Act, mere initiation of penalty proceeding correctly is not sufficient, but the same should be completed and the order of the penalty should be passed in accordance with the said provisions. In other words, any proceedings initiated against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of death of the deceased. Therefore, when the penalty orders were passed against Sh. Ashok Malhotra, he had already died. Thus the penalty order is inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee, impugned reopening notice issued and subsequent reassessment order passed thereafter in name of mother of assessee and bringing on record assessee as a legal representative for all tax dues were invalid. 10. Further, it is also observed that in the assessment order as well as in the show cause issue notice u/s 274 of the Act, the specific limb of the penalty to be initiated against Sh. Ashok Malhotra has not been mentioned. In the assessment order passed u/s 253/143(3) of the Act, it has been mentioned as under:- Penalty notice u/s 271(1)(c) is being issued separately for concealment of income/furnishing inaccurate particular of income as discussed above. Whereas in the penalty show cause notice issued u/s 274 read with Section 271 of the Act, it has been mentioned as under:- * have concealed the particulars of your income .Furnished inaccurate particulars of such income. Thus, it was not clear as to whether the penalty proceedings have been initiated for concealment of income or furnishing of inaccurate particulars of income. 11. The identical issue as to whether the order of the penalty is sustainable which was initiated by issuing a defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the so-called ambiguous wording in the notice [has not] impaired or prejudiced the right of the assessee to a reasonable opportunity of being heard . It went onto observe that for sustaining the piea of natural justice on the ground of absence of opportunity, it has to be established that prejudice is caused to the concerned person by the procedure followed . Kaushalya doses the discussion by observing that the notice issuing is an administrative device for informing the assessee about the proposal to levy penalty in order to enable him to explain as to why it should not be done , 185. No doubt, there can exist a case where vagueness and ambiguity in the notice can demonstrate non-application of mind by the authority and/or ultimate prejudice to the right of opportunity of hearing contemplated under section 274. So asserts Kaushalya. In fact, for one assessment year, it set aside the penalty proceedings on the grounds of non-application of mind and prejudice. 186. That said, regarding the other assessment year, it reasons that the assessment order, containing the reasons or justification, avoids prejudice to the assessee. That is where, we reckon, the reasoning suffer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... napani Dei[ 75]. According to it, when by reason of action on the part of a statutory authority, civil or evil consequences ensue, principles of natural justice must be followed. In such an event, although no express provision is laid down on this behalf, compliance with principles of natural justice would be implicit. If a statue contravenes the principles of natural justice, it may also be held ultra vires Article 14 of the Constitution. 191. As a result, we hold that Dilip N. Shroff treats omnibus show cause notices as betraying non-application of mind and disapproves of the practice, to be particular, of issuing notices in printed form without deleting or striking off the inapplicable parts of that generic notice. Conclusion: We have, thus, answered the reference as required by us; so we direct the Registry to place these two Tax Appeals before the Division Bench concerned for further adjudication. 12. As could be seen from the above the Hon'ble Bombay High Court (Full Bench at Goa) in the case of Mr. Mohd. Farhan A. Shaikh v. ACIT [(2021) 434 ITR 1 (Bom)] while dealing with the issue of non-strike off of the irrelevant part in the notice issued u/s. 271(1)(c) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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