9911796707
TMI Blog2024 (9) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... neous 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 summarily dismissing the submissions made by the assessee during the course of proceedings under section 263 of the Act which order is not sustainable in law and facts of the case. (6) That the Learned Principal Commissioner of Income Tax has grossly erred in assuming jurisdiction under section 263 of the Act misleading herself in incorrectly stating that the assessee failed to furnish the narration of bank transactions despite specific requirement of the Assessing Officer whereas the Assessing Officer vide his questionnaire dated 29.12.2021 had only directed the assessee to furnish the copy of bank statements which was duly furnished ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 written synopsis. For the sake of clarity, the relevant contents of the written synopsis are reproduced as under:- 1) "The assessment of the assessee was completed by the National Faceless Assessment Center vide order dated 24.03.2022 under section 147 r.w.s. 144B of the Act at returned income of Rs. 5,30,190/- on being satisfied with the reply of the assessee made during the assessment proceedings. 2) The proceedings under section 263 of the Act were initiated by the PCIT vide show-cause notice dated 05.01.2024 to show cause to the assessee (who had expired on 12.09.2023) as to why the assessment may not be reframed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal 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 decision of the Hon'ble Gujarat High Court (Supra), it can be said that the action of the PCIT by passing order u/s 263 of the Act in the hands of the deceased is outside the scope of law provided w/s 159 of the Act. Unquote: 10) The Delhi Tribunal in the above case also referred to the question whether in such circumstances proceedings under section 159 of the Act could be invoked against the representative assessee. It held that the provisions of section 159 of the Act are applicable only if the proceedings had been initiated when the assessee was alive. 11) Reference is also invited to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 original assessee, namely 'B', passed away on 23-4-2017. The Assessing Officer issued a notice under section 153C in name of 'B' on 29-3-2019. After receiving said notice legal heir informed Assessing Officer that his father, B had passed away and requested to drop proceedings as notice was issued to a dead person. The Supreme Court held that the notice issued on a dead person was not valid. 18) The SLP filed by the revenue before the Hon'ble Supreme Court against above judgement of High Court was also dismissed by the Supreme Court. Copy enclosed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 12.09.2023 and the due intimation was given by the assessee to Ld. Pr. CIT vide communication dated 17.01.2024. Admittedly, the Revenue has not proceeded against the Legal Heir of the assessee. Ld. Pr. CIT did not take any step for bringing the Legal Heir of the assessee on record and failed to proceed against him. The relevant contents of the order of Ld. Pr. CIT is reproduced as under:- 7.1 "In reply, it is mentioned that Sh. Madan Lal Kochar (the assessee) passed away on 12.09.2023. A copy of his death certificate is enclosed. Sh. Sahil Kochar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 passed in the name of a dead person is illegal and bad in law. Hence, any subsequent proceedings arising there from are non-est." 10. Further, reliance was placed on the decision of Co-ordinate Bench of the Tribunal in the case of Late Shri J P Aggarwal through L/H Shri Vishwanath Aggarwal vs ITO in ITA No.3133/Del/2019 vide order dated 23.06.2023. 11. The law is well settled by various authoritative judicial pronouncements that any proceedings initiated and order passed against a dead person would be nullity. The Revenue could not controv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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