9911796707
TMI Blog2024 (3) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, inspite of this, AO framed the assessment order which is which is bad in law and should be quashed. Therefore, respectfully following the judgment in the case of Dharamraj [ 2022 (1) TMI 844 - DELHI HIGH COURT] we quash the assessment order framed u/s 143(3) of the Act - Assessee appeal allowed. - Shri Pawan Singh, JM And Dr. A. L. Saini, AM For the Assessee : Shri Rajesh Upadhyay, AR For the Respondent : Shri Vinod Kumar, Sr-D.R ORDER PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, pertaining to assessment year 2017-18, is directed against the order passed by the National Faceless Appeal Centre, Delhi (in short NFAC/Ld CIT(A) ) dated 20.11.2023, which in turn arises out of an assessment order passed by the Assessing Officer under section 143(3) of the Income-Tax Act, 1961 (hereinafter referred to as 'the Act') dated 29.12.2019. 2. The grounds of appeal raised by the assessee are as follows: 1. Ld. CIT[A], NFAC, Delhi has erred in law and on facts to upheld A.O s action to issue notice for assessment as well as to carry out and finalize assessment proceedings upon the deceased Shri Jayesh Kantilal Kansara. 2. Ld. CIT[A], NFAC, Delhi has erred in law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04,15,500 During the course of the assessment proceedings, the assessee was asked to furnish details explaining source of the cash deposit made during the demonetization period. In this regard, the assessee furnished Specified Bank Notes (SBN) certificate issued by the bank and submitted that there is cash deposit in SBN notes of Rs. 71,06,000/- in the SBI Bank by the assessee. Further, the assessee has also deposited SBN notes of Rs. 13,00,500/- in Bank of Baroda during demonetization period. Thus, the assessee has made a total cash deposit in SBN of Rs. 84,06,500/-(Rs.71,06,000 + Rs. 13,00,500) in the said banks. It may be noticed from the cash book as furnished by the assessee that opening cash-in-hand as on 09.11.2016 has been reported at Rs. 24,81,407/- only whereas there was cash deposit in SBN notes of Rs. 84,06,500/- during the demonetization period. In this connection, it was stated that during the demonetization period, petrol pump operated under the authorization of public sector oil marketing companies were authorized to sale diesel and petrol on receipt of SBN and not the Pvt. Sector oil marketing companies. 4. Therefore, the assessee was requested to furnish details o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also engaged in any other business which was eligible to accept SBN during the demonetization period. Therefore, Assessing Officer made addition of Rs. 59,56,500/- and added to the total income of the assessee, as unexplained cash credit u/s 68 of the Act and charged as per section 115BBE of the Act. 7. Aggrieved by the order of the Assessing Officer, the assessee carried the matter in appeal before NFAC/Ld.CIT(A), who has confirmed the action of the Assessing Officer. The ld CIT(A) noted that the claim of the assessee that the amount of Rs. 59,56,500/- deposited in bank accounts in OHD was from the sale of petrol and oil made during the demonetization period is not correct as the assessee was legally not authorized to do so. Therefore, ld CIT(A) upheld the addition made by the Assessing Officer. 8. Aggrieved by the order of NFAC/Ld.CIT(A), the assessee is in appeal before us. 9. At the outset, Shri Rajesh Upadhyay, Ld. Counsel for the assessee submitted that Assessing Officer framed the assessment on the dead person inspite of the fact that information of death of the assessee was intimated during assessment proceedings. Notwithstanding of this fact, the Assessing Officer fram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of Dharamraj vs. Income Tax Officer W.P.(C) 9227/2021 dated 17.01.2022 wherein, which was held as follows: 7. We have considered the submissions made by the learned counsels for the parties. 8. The issue of the validity of a notice and proceedings held subsequent thereto against a dead person is no longer res integra. This Court in Savita Kapila vs. Assistant Commissioner of Income-Tax, in W.P.(C) No.3258/2020 has held as under: AN ALTERNATIVE STATUTORY REMEDY DOES NOT OPERATE AS A BAR TO MAINTAINABILITY OF A WRIT PETITION WHERE THE ORDER OR NOTICEE OR PROCEEEDINGS ARE WHOLLY WITHOUT JURISDICTION. IF THE ASESSNIG OFFIE HAD NO JURISDICTION TO INITIATE ASSESSMENT PROCEEDINGS. THE MERE FACT THAT SUBSEQUENT ORDRS HAVE BEEN PASSSED WOULD NOT RENDER THECHALLENGE TO JURISDICTION INFRUCTUIOUS. 24. Further, the fact that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequent would have no legs to stand. If the notice goes, so does the order of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equeathed 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) [2008 (6) TMI 760 Madras High Court] 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 the assessee or take steps to cancel the PAN registration. xxxx 34. Consequently, the legal heirs are under no statutory obligation to intimate the death of the assessee to the Revenue. SECTION 292B OF THE ACT, 1961 HASBEENHELD TO BE INAPPLICABLE, VIS- -VIS, NOTICE ISSUED TO A DEAD PERSON IN RAJENDER KUMAR SEHGAL [2018(12) TMI 697 (DELHI)], CHANDRESHBHAI JAYANTIBHAI PATEL [2019 (1) TMI 353 GUJARAT HIGH COURT] AND ALAMELU VEERAPPAN [2018 (6) TMI 760 MADRAS HIGH COURT] 35. This Court is of the opinion that issuance of notice upon a dead person and non-service of notice does not come under the ambit of mistake, defect or omission. Consequently, Section 292B of the Act, 1961 does not apply to the present case. IN RAJINDE ..... X X X X Extracts X X X X X X X X Extracts X X X X
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