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TMI Blog2024 (9) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... 016-17. 2. The assessee has raised following grounds of appeal:- (1) That the order passed by the Learned Principal Commissioner of Income Tax-12, Delhi under section 263 of the Act, is arbitrary, biased and bad in law and in facts of the case. (2) That the Learned Principal Commissioner of Income Tax has grossly erred in passing an order u/s 263 on a deceased person which order is a nullity and void ab-initio. (3) Without prejudice to ground no. 2, the assumption of jurisdiction by the Learned Principal Commissioner of Income Tax under section 263 of the Act is bad in law as the order passed by the Assessing Officer was neither erroneous nor prejudicial to the interest of the revenue. (4) That the Learned Principal Commissioner of Income Tax has grossly erred in passing an order under section 263 of the Act without making independent enquiry herself before assuming jurisdiction under section 263 of the Act, which order is not sustainable in law and facts of the case. (5) That the Learned Principal Commissioner of Income Tax has grossly erred in passing a pre-mediated order under section 263 of the Act without affording a fair and adequate opportunity to the assessee and in summari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w and facts of the case. (9) That the appellant craves leave to add, alter or delete the above grounds of appeal at the time of hearing. 3. Facts giving rise to the present appeal are that in this case, assessment u/s 147 r.w.s 144B of the Income Tax Act, 1961 ( the Act ), was framed vide order dated 24.03.2022 with DIN ITBA/AST/S/147/2021-22/1041932307(1), thereby assessing the income of the assessee at INR 5,30,190/-. Subsequently, vide impugned order dated 26.03.2024, Ld.Pr.CIT revised the assessment order therefore, he set aside the assessment order for want of proper inquiry and verification. 4. Aggrieved against the order of Ld. Pr. CIT, the Legal Heir of deceased assessee is in appeal before this Tribunal, challenging the correctness of action of Ld.Pr.CIT who by way of impugned order, has passed an order against a dead person, without bringing Legal Heir on record. Despite the fact of death was duly intimated to Ld.Pr.CIT. 5. Apropos to the grounds of appeal, Ld. Counsel for the assessee submitted that the impugned order has been passed by Ld. Pr.CIT against the dead person and such order is ex-facie, ab-initio void. He further re-iterated the submission as made in the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to another decision of Delhi ITAT in the case of Late Sh. Jp Aggarwal Through L/H Sh. Vishwanath Aggarwal vs ITO, Ward- 44(5), New Delhi in ITA no. 3133/DEL/2019 (Copy enclosed at page no. 13- 25 of the P.B.) wherein the Delhi Tribunal quashed the notice and order passed under section 263 order on a deceased person. 7) In the case of Late Sh. Jp Aggarwal Through L/H Sh. Vishwanath Aggarwal vs ITO, Ward-44(5), New Delhi in ITA no. 3133/DEL/2019, the PCIT issued notice under section 263 in the name of dead person and the order under section 263 also was passed in the name of a dead person. 8) The Tribunal vide Para 8 of its order held that as per the provisions of section 263, the PCIT is not empowered to pass an order under section 263 in the hands of the legal representative after the death of the assessee. It further held in Para 10 that following the decision of Gujrat High Court in the case of Bhupendra Bhikhalal Desai v. ITO [2021] 130 taxmann.com 196 (Gujarat) (Copy enclosed at page no. 57-73 of the P.B.) the order passed under section 263 in the hands of dead assessee is null and void. 9) Refer para 10 of the ITAT order which reads as under: Quote: Thus, in light of the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore 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. Unquote 15) Refer the decision of Ahmedabad Bench in the case of Hiraben Babubhai Patel v. PCIT in ITA appeal No. 700/Ahd/2019 wherein it was held by the Ahmedabad ITAT that since at the time when the notice under section 263 had been issued, the assessee had already expired, and the fact was brought to the notice of the PCIT, the notice issued / order passed in the name of a dead person is not a valid notice/ order. (Copy of judgement is enclosed at page no. 33- 41 of the P.B). Refer para 6.10 of the order at page 40-41 of the P.B. 16) The Tribunal in the case of Hiraben Babubhai Patel v. PCIT in ITA appeal No. 700/Ahd/2019 relied on the decisions of Supreme Court and Gujrat High Court in below mentioned cases to hold that the order passed under section 263 was not valid having been passed on a deceased person. 17) In the case of ITO v. Bhupendra Bhikhalal Desai [2021] 131 taxmann.com 40 (SC) (Copy enclosed at page no. 42 of the P.B.), the origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Apex Court in the case of PCIT v. Maruti Suzuki India Ltd 107 taxmann.com 375 has held that assessment order passed in the name of non- existing entity would be without jurisdiction and was to be set aside. 6. Ld. Counsel for the assessee submitted that the factum of death of assessee has been duly recorded by the Ld.Pr.CIT in para 7.1 of the impugned order. He submitted that Late Shri Madan Lal Kochar, the deceased assessee died on 12.09.2023 and proceedings u/s 263 of the Act were initiated against the deceased assessee. He drew my attention to the notice dated 05.01.2024 enclosed in the Paper Book at pages 1 to 4. He further submitted that impugned order ab-initio void and thus, cannot be upheld. 7. On the other hand, Ld. Sr. DR for the Revenue fairly conceded the fact that the order has been passed in the name of Late Shri Madan Lal Kochar who passed on 12.09.2023 and the proceedings u/s 263 of the Act was issued on 05.01.2024. 8. I have heard Ld. Authorized Representatives of the parties and perused the material available on record and gone through the orders of the authorities below. The Revenue has not controverted the fact that Late Shri Madan Lal Kochar died on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order is reproduced here in under: 2 The case was posted for hearing u/s. 263 of IT Act on 20.03.2014, wherein Sh. Rakesh Malhotra, authorized representative attended and filed reply. In his reply assessee has stated as under that the assessee Sh. Nirmal Kant Saini had expired on 21.01.2013. Thus, from the reading of the above observations by the CIT, it is explicitly clear that it was in the knowledge of CIT that Shri Nirmal Kant Saini had expired, still the CIT passed order u/s. 263 of the Act in the name of 'Nirmal Kant Saini'. It is not the case of revenue that the Department was not informed about the death of Shri Nirmal Kant Saini in proceedings u/s 263 of the Act. The Hon'ble Apex Court in the case of PCIT vs Maruti Suzuki India Ltd 107 taxmann.com 375 has held that assessment order passed in the name of non-existing entity would be without jurisdiction and was to be set aside. In the instant case, the CIT after having knowledge of death of Nirmal Kant Saini was mandatorily required to pass an order in the name of legal heir of the deceased, whereas, the order was passed in the name of Nirmal Kant Saini i.e. in the name of a dead person. The order passe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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