2017 (11) TMI 967

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....ngs under section 143(3) of the Income Tax Act, 1961, whereas in ITA No.918/Ahd/2014 assessee is impugning levy of penalty imposed under section 271(1)(c) of the Act. 3. First we take quantum appeal i.e. ITA No.919/Ahd/2014. 4. The ld.counsel for the assessee, at the very outset, submitted that he has raised additional ground of appeal, wherein it has been pleaded that late Shri Atulkumar Mansukhlal Shah expired on 4.7.2011 and this fact was brought to the notice of AO vide letter dated 23.12.2011. In spite of that the AO has passed the assessment order in the name of a deceased person, therefore, the assessment order deserves to be declared null and void. 5. Considering the very nature of plea raised in the additional ground of ap....

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....ions. 7. On the other hand, the ld.DR pointed out that a perusal of sub-clause (a) of Sub-section (2) and sub-section (3) of Section 159 would contemplates that if any proceedings taken against the assessee, who expired during the pendency of the proceedings, then the proceedings may be continued against legal representatives in the same capacity as if the assessee was alive, and the order could not be declared as nullity. At the most, it can be treated as a procedure illegality which can be cured by issuance of notice to the L/Rs. 8. We have duly considered rival contentions and gone through the record carefully. Section 159 of the Income Tax has a direct bearing on the controversy in hand, therefore, it is imperative upon us to take....

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....ld indicate that a notice under section 143(2) was issued on 30.8.2010 when Shri Atulkumar M. Shah was alive. An opportunity to the assessee was given to make submission in support of his return, as required under section 143(2). This assessment proceedings was set in motion by the AO when the assessee was alive. Fact of death of the assessee was brought to the notice of the AO at the very fag end i.e. vide letter dated 23.12.2011. The AO has, though taken cognizance of this letter, but failed to issue notice to the L/Rs. so that they can put their defence before him. As far as two case laws cited by the ld.counsel for the assessee before us is concerned, in the case of CIT Vs. Dalumal Shyamulal (supra) it reveals that the assessee died on ....