9911796707
TMI Blog2024 (6) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment. The legal heirs of the assessee (since deceased) had withheld the aforesaid information from the first appellate authority although the appeal was disposed of by him after 3 years (approximately) from the date of death of the assessee, i.e. on 28.02.2024. We find substance in the claim of the DR that as the CIT(A) had passed an order in the name of the deceased assessee as the legal heirs had failed to bring the said fact to his notice, therefore, the said order suffers from a fundamental defect. In a case where an assessee dies pending any proceedings before the department, the provisions of Section 159 of the Act get attracted. Accordingly, it is incumbent on the department to ensure compliance with Section 159 before any order is passed. An analogy can be drawn in Dalumal Shyamumal [ 2004 (11) TMI 57 - MADHYA PRADESH HIGH COURT] observed that as the A.O. had framed the assessment in the name of the assessee (since deceased), therefore, the 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 a nullity, then the Tribunal should have given a consequential direction as contemplated u/s. 159 to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of hearing. 2. Succinctly stated, the A.O. based on the information that the assessee had during the subject year made cash deposits of Rs. 36,88,875/- in his savings bank account but had not filed his return of income, initiated proceedings u/s. 147 of the Act. Notice u/s. 148 of the Act, dated 23.03.2018 was issued to the assessee. In compliance, the assessee had filed his return of income for A.Y.2013-14 on 23.04.2018 declaring an income of Rs. 2,33,110/-. 3. As is discernible from the assessment order, the A.O. called upon the assessee to justify his claim for deduction u/s. 54F of the Act. As the assessee had made an investment of Rs. 12 lac in a new house property during the period 10.10.2014 to 21.04.2015, i.e. after the lapse of a period of 2 years 4 months from the date of sale of the capital asset, and had neither utilized the sale consideration for the purchase or construction of a new house property before the due date of filing of his return of income nor deposited the same in the Capital gain account scheme, therefore, the A.O declined his claim for deduction of Rs. 14,25,715/- raised u/s. 54F of the Act. Accordingly, the A.O. vide his order passed u/s. 143(3) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2012) 344 ITR 641 (Chhattisgarh) (ii) CIT-5, Mumbai Vs. Jet Airways (I) Ltd. (2011) 331 ITR 236 (Bom) (iii) CIT-II Vs. Mohmed Juned Dadani (2014) 355 ITR 172 (Gujarat) (iv) CIT Vs. Shri Ram Singh, (2008) 306 ITR 343 (Rajasthan) It was, thus, the claim of the Ld. AR that as the addition/disallowance of the assessee's claim for deduction u/s. 54F of Rs. 14,25,715/- was not backed by a valid assumption of jurisdiction by the A.O, therefore, the same could not be sustained and was liable to be struck down. 7. Per contra, Shri Satya Prakash Sharma, Ld. Departmental Representative (for short 'DR') pointed out a fundamental defect in the order of the CIT(Appeals). It was submitted by the Ld. DR that a perusal of the record revealed that though the assessee had expired way back on 01.10.2020 but the said fact was withheld by the legal heirs of the deceased assessee and was neither brought to the notice of the department nor the CIT(Appeals). Carrying his contention further, the Ld. DR submitted that as there can be no order in the name of a deceased person, therefore, the order of the CIT(Appeals) suffers from a fundamental defect. 8. I have heard the Ld. Authorized Representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. (3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. (4) Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains undischarged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value of the asset so charged, disposed of or parted with. (5) The provisions of sub-section (2) of section-161, section-162 and section- 167, shall, so far as may be and to the extent to which they are not inconsistent with the provisions of this section, apply in relation to a legal representative. (6) The liability of a legal representative under this section shall, subject to the provisions of sub-section (4) and sub-section (5), be limited to the extent to which the estate is capable of meeting the liability. In a case where an assessee dies pending any proceedings before the department, the provisions of Section 159 of the Act get attracted. Accordingly, it is incumbent on the department to ensure complian ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
