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TMI Blog2024 (5) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... ailed to implead his legal heir and framed the assessment in the name of the deceased assessee. In a case where an assessee dies pending any assessment proceedings, the provisions of Section 159 of the Act get attracted. Accordingly, it is incumbent on the A.O to ensure compliance with sub-section (2) of Section 159 before any order is passed. As decided in DALUMAL SHYAMUMAL [ 2004 (11) TMI 57 - MADHYA PRADESH HIGH COURT] as the A.O had framed the assessment in the name of the assessee (since deceased), therefore, assessment so framed was a nullity. However, once the assessment order was held to be nullity, then the Tribunal should have given a consequential direction as contemplated u/s. 159 of the Act to the A.O so that proper assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the facts and circumstances of the case and in law, assessment made u/s. 147 on 28-3-22 is invalid as it is passed on the deceased person, who died on 11-9-21 duly intimated to the Ld. AO on 15-3-22; assessment u/s. 147 would be liable to be quashed." 2. Succinctly stated, the assessee had filed his return of income for A.Y. 2015-16 on 31.03.2016, declaring an income of Rs. 5,80,750/- along with an exempt income of Rs. 8,67,760/-. Based on information that the assessee had traded in a penny scrip of M/s. Mahavir Advance Remedies Limited, and, thus, had raised a bogus claim of long term capital gain (LTCG) which was sought as exempt (having been subjected to payment of securities transaction tax), the A.O reopened his case u/s. 147 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stock company providing accommodation entries. The appellant has not brought anything on record in support of his claim that the amount added by the AO was in the nature of genuine LTCG exempt u/s 10(38) of the Act. I, therefore, find no reason to interfere with the Order of the AO and hence the same is upheld and the ground of appeal raised by the appellant is dismissed." 5. The legal heir of the assessee (since deceased) being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before me. 6. Shri Sunil Kumar Agrawal, Ld. Authorized Representative (for short 'AR') for the assessee at the threshold assailed the validity of the order passed by the A.O u/s. 147 r.w.s 144B of the Act dated 28.03.2022 in the hands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Officer, Writ Petn. Nos. 29157 & 29162 of 2023, dated 10.10.2023; (ii) Commissioner of Income Tax Vs. M. Hemanathan, (2016) 384 ITR 177 ( Mad.) 7. Per contra, the Ld. Departmental Representative (for short 'DR') relied on the orders of the lower authorities. On being confronted with the fact that though the assessee had expired, and the said fact was brought to the notice of the A.O but the assessment had been framed in the name of the deceased assessee, the Ld. DR did not controvert the same. 8. I have heard the ld. authorized representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed 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 purpose of making an assessment (including an assessment, reassessment or re-computation under section-147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of sub-section (1),-- (a) any proceeding taken 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 the death of the deceased; (b) any proceeding which could have been taken against the deceased if he had survive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Vs. Dalumal Shyamumal (2005) 276 ITR 62 (MP). The Hon'ble High Court had observed that as the A.O had framed the assessment in the name of the assessee (since deceased), therefore, assessment so framed was a nullity. However, the Hon'ble High Court was of the view that once the assessment order was held to be nullity, then the Tribunal should have given a consequential direction as contemplated u/s. 159 of the Act to the A.O so that proper assessment order could be passed. For the sake of clarity, the observations of the Hon'ble High Court are culled out as under: "In our opinion, the Tribunal while deciding the appeal ought to have taken note of section 159 ibid and should have accordingly, remanded the case to assessing officer for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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