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TMI Blog2024 (4) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... URT] wherein it was held that in absence of a statutory provision, a duty cannot be cast upon legal representatives to intimate factum of death of assessee under section 148 of the Act, after his death and, in such a case, it could not have been validity served upon assessee, said notice being invalid, was to be quashed. As decided in the case of PCIT vs. Maruti Suzuki India Ltd [ 2019 (7) TMI 1449 - SUPREME COURT] held that where assessee company was amalgamated with another company and thereby lost its existence, assessment order passed subsequently in name of said non-existing entity, would be without jurisdiction and was to be set aside. In the present case of assessee, the information about the death of the assessee was available before the ld CIT(A), despite of this, CIT(A) issued the notices for hearings, during the appellate proceedings in the name of dead person, and also passed the order in the name of dead person, which is not tenable in the law, hence we quash the order passed by ld CIT(A). Assessee appeal allowed. - Shri Pawan Singh, JM And Dr. A. L. Saini, AM For the Assessee : Shri Sapnesh Sheth, CA For the Respondent : Shri Vinod Kumar, Sr. DR ORDER PER DR. A. L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest income was offered for taxation to the tune of Rs. 55,760/- only as per 26AS. In the computation of income, the assessee has further disclosed interest income to the tune of Rs. 74,949/-. Since, the assessee has offered interest income in response to notice u/s 148 of the I.T. Act, no further addition is made. However, penalty proceedings are initiated u/s 271(1)(c) of the I.T. Act and assessing officer in the penalty order imposed the penalty u/s 271(1) (c ) of the I.T. Act at Rs. 1,87,005/-. 4. Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A), who has confirmed the penalty imposed by the Assessing Officer. During the appellate proceedings, the legal heirs of the assessee, informed/ intimated to the ld CIT(A) that assessee had died, so no penalty should be imposed on the dead person. However, ld CIT(A) rejected the plea of the assessee and stated that legal heir of the assessee did not inform the assessing officer during the penalty proceedings about the death of the assessee. On merits also, the ld CIT(A) held that action of the assessing officer is justified in imposing the penalty. 5. Aggrieved by the order of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that assessee had died inspite of this, the ld. CIT(A) passed the order in the name of dead person which is not acceptable. We note that the Assessing Officer passed the penalty order in the name of assessee who has died on 12.02.2022. The information about the death has been given to the ld CIT(A) and in spite of this, the ld CIT(A) has passed the order in the name of dead person, which is not acceptable. Therefore, we find merit in the submission of the ld. Counsel for the assessee, to the effect that penalty order should not be passed on a dead person and ld CIT(A) should have considered this plea of the assessee, however, we note that ld CIT(A) failed to do so. Therefore, we note that the information about the death of the assessee was available before the ld CIT(A), despite of this, the ld CIT(A) issued the notices for hearings, during the appellate proceedings in the name of dead person, and also passed the order in the name of dead person, which is not tenable in the law. That is, ld CIT(A) should have issued the notices, on the legal heirs of the assessee and the order should have been passed in the name of legal heirs of the assessee, which the ld CIT(A) has failed to do s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences. 28. Mr Sastri mentioned more than once the fact that the Company would have sufficient opportunity to raise this question viz. whether the Income-tax Officer had reason to believe that underassessment had resulted from non-disclosure of material facts, before the Income-tax Officer himself in the assessment proceedings and if unsuccessful there before the appellate officer or the Appellate Tribunal or in the High Court under section 66(2) of the Indian Income-tax Act. The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. 29. In the present case the Company contends that the conditions precedent for the assumption of jurisdiction under section 34 were not satisfied and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer to proceed with the assessment and thus, affects the validity of the proceedings for assessment or reassessment. A notice issued under section 148 of the Act against a dead person is invalid, unless the legal representative submits to the jurisdiction of the Assessing Officer without raising any objection. 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. ALSO, NO NOTICE UNDER SECTION 148 OF THE ACT, 1961 WAS EVER ISSUED UPON THE PETITIONER DURING THE PERIOD OF LIMITATION. CONSEQUENTLY, THE PROCEEDINGS AGAINST THE PETITIONER ARE BARRED BY LIMITATION AS PER SECTION 149(1)(b) OF THE ACT, 1961. 28. Also, no notice under section 148 of the Act, 1961 was ever issued to the petitioner during the period of limitation and simply proceedings were transferred to the PAN of the petitioner, who happens to be one of the four legal heirs of the deceased assessee vide letter dated 27th December, 2019. Therefore, the assumption of jurisdiction qua the Petitioner for the relevant assessment year is beyond the period prescribed and consequently, the proceedings against the petitioner are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee 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 the assessee or take steps to cancel the PAN registration. 33. The judgment in Pr. Commissioner of Income-tax v. Maruti Suzuki India Limited (supra) offers no assistance to the respondents. In Pr. Commissioner of Income-tax v. Maruti Suzuki India Limited (supra) the Supreme Court was dealing with Section 170 of the Act, 1961 (succession to business otherwise than on death) wherein notice under section 143(2) of the Act, 1961 was issued to non-existing company. In that case, Department by very nature of transaction was aware about the amalgamation. However, the said judgment nowhere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /letter dated April 11, 2017. They had objected to the notice being issued in the name of the company, which had ceased to exist. However, the reading of the said letter indicates that they had understood and were aware, that the notice was for them. It was relied and dealt with by them. The Supreme Court while dismissing the SLP had also observed In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under section 292B of the Income-tax Act. 37. In any event, Section 292B of the Act, 1961 has been held to be inapplicable viz-a-viz notice issued to a dead person in Rajender Kumar Sehgal (supra), Chandreshbhai Jayantibhai Patel (supra) and Alamelu Veerappan (supra). In all the aforesaid cases, the judgment of Skylight Hospitality (supra) had been cited by the revenue. IN RAJENDER KUMAR SEHGAL (SUPRA) A COORDINATE BENCH OF THIS COURT HAS HELD THAT SECTION 292BB OF THE ACT, 1961 IS APPLICABLE TO AN ASSESSEE AND NOT TO A LEGAL REPRESENTATIVE. 38. This Court is also of the view that Section 292BB of the Act, 1961 is applicable to an assessee and not to a legal representative. Further, in the present c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettled position of law, to accept the submissions of the respondent would amount to unsettling the 'settled law'. In fact, in Pr. Commissioner of Income-tax v. Maruti Suzuki India Limited (supra), the Supreme Court speaking through Hon'ble (Dr.) Justice Dhananjaya Y. Chandrachud has succinctly observed as under:- 40. We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made in the expectation of consistency, uniformity and certainty. To detract from those principles is neither expedient nor desirable. 42. Keeping in view the aforesaid, the present writ petition is allowed and the impugned notice dated 31st March, 2019 and all consequential orders/proc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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