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TMI Blog2024 (11) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... tion for the invocation of Section 292BB is absent in the case on hand. Section 292BB is in place to take care of contingencies where an assessee is put on notice of the initiation of proceedings, but who takes advantage of defective notices or defective service of notice on him. It is trite to point out that the purpose of issue of notice is to make the noticee aware of the nature of the proceedings. Once the nature of the proceedings is made known and understood by the assessee, he should not be allowed to take advantage of certain procedural defects. That was the purpose behind the enactment of Section 292BB. It cannot be invoked in cases where the very initiation of proceedings is against a dead person. Hence, the second contention cannot also be upheld. Decided in favour of assessee. - Smt. Kavitha Rajgopal, Judicial Member And Shri Gagan Goyal, Accountant Member For the Appellant : Shri Gajendra Golcha, Ld. AR For the Respondent : Ms. Rajeshwari Menon, Ld. DR ORDER PER GAGAN GOYAL, A.M: These appeals by assessee are directed against the order of National Faceless Appeal Centre (for short NFAC ) Delhi dated 18.12.2023 respectively passed u/s. 250 of the Income Tax Act, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to purchase units of mutual funds without appreciating that said transaction is duly explained and purchases are made in earlier years hence the addition of Rs. 22, 83,000/- be deleted. 6) The NFAC failed to appreciate that the Learned Assessing Officer has erred in adding an amount of Rs. 51,34,328/- being alleged unexplained transaction of Shares on National Stock Exchange without appreciating that said transactions are genuine and duly explained and hence the addition of Rs. 51,34,328/- may be deleted. 7) The NFAC failed to appreciate that the Learned Assessing Officer has erred in adding an amount of Rs. 3,01,660/- being alleged unexplained income of interest on bank deposits without appreciating that said income is already offered to tax and duly explained and hence the addition of Rs. 3,01,660/- may be deleted. 8) Appellant craves leave to add, amend or delete the grounds of appeal during the course of appellate proceedings. 3. As the matter involved pertains to the quantum addition and consequent penalty order also. As a logical corollary, we are disposing ITA No. 705/Mum/2024 first and then ITA No. 707/Mum/2024, being appeal against the consequential penalty. The brief fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted that the assessee Mr. Sankaralingam Sankar has expired before the start of the relevant A.Y. 2012-13 and as such issuing notice on a dead person is bad in law and the same needs to be quashed. And as such no assessment can be made on deceased person. It is observed that this fact was never placed on record by the assessee before the AO and the relevant evidence like death certificate etc. were also not produced before the Ld. CIT (A) but the same is produced before us also for our perusal so that after verification of the same relevant adjudication of the matter can be done by us. 6. It is further observed that assessee has taken ground before us through which he claimed that all the investments as added back by the AO pertains to earlier assessment years/duly explained/duly offered to tax. As claims made by the assessee before us are not substantiated by the relevant supporting which can help us to adjudicate the matter as per law. Still considering the fact that the original assessee is no more and the matter is being pursued by his legal heir, we deem it fit to examine the legal ground first raised by the assessee, i.e. ground nos. 3 and 4 as under: 3) The NFAC failed to ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutive authority, the High Courts have power to issue in a fit case 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 ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The want of valid notice affects the jurisdiction of the Assessing 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 prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e legal representatives to intimate the factum of death of an assessee 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, had filed without prejudice reply/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 repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of consistent, uniform and settled 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, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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