AI Drafter 
TaxTMI 
TaxTMI 
2020 (7) TMI 396
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..../s 148 of the Income Tax Act, 1961 (in short 'Act') on a dead person. Therefore, first we take up the legal ground which reads as under : "2. The Learned CIT(A) is not justified in rejecting the plea of the appellant that the notice u/s 148 was issued in the name of M.Radha Mohan Raju (Dead Person) which is not valid in law." Brief facts of the case are that the assessee was an individual government employee, deriving income from pension after retirement and expired on 13.08.2010. The Assessing Officer (AO) had the information with regard to sale of plot of land located at Sy.No.275/30, Adarshnagar, Adavivaram Village & Taluk, Visakhapatnam for a consideration of Rs. 3,47,200/- to Smt. Reddy Karuna on 21.03.2007 vide registered sale deed document No.2419/07. The SRO value of the said plot of land was Rs. 9,96,000/-. Since the provisions of section 50C of the Act are applicable, the AO reopened the assessment by issue of notice u/s 148 on 26.03.2014. By the time the notice was issued the assessee had already expired. There Shri M.Raghurama Raju, L/R of Late Shri M.Radha Mohan Raju, Visakhapatnam was no compliance from the assessee to the notice within the time allowed....
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....48 on the assessee. Subsequently, after receiving the information regarding the death of the assessee the AO issued the notice u/s 142(1) to Shri Raghurama Raju, the legal heir of the assessee, hence, argued that notice issued u/s 148 cannot be held to be invalid. The Ld.DR relied on the decision of CIT Vs. Amarchand N.Shroff 1963 AIR 1448 and submitted that the Hon'ble Supreme Court held that the assessment cannot be made on a dead person, therefore, argued that since the case is squarely covered by the decision of Hon'ble Supreme Court, requested to uphold the notice as well as the assessment. 6. We have heard both the parties and perused the material placed on record. In the instant case, the AO had issued the notice u/s 148 on 26.03.2014. By the time, the notice was issued, the assessee had already expired. As per the information available on record, the assessee was expired on 13.08.2010. Though the assessee's son has brought on record, the information regarding the death of the assessee, the AO chose to continue the assessment proceedings by issue of notice u/s 142(1) in the name of the legal heir. The Ld.DR relied on the decision of CIT Vs. Amarchand N.Shroff, cited supra....
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....on 159 of the Act. For the sake of clarity and convenience, we extract relevant part of the provisions of section 159 which reads as under : 159. (1) Where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. (2) For the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of sub-section (1),- (a) any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased; (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) all the provisions of this Act shall apply accordingly. (3) The legal representative of the deceased sha....
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....epartment was justified in directing the petitioner to cooperate in the proceedings pursuant to the impugned notice. 16. The settled legal principle being that a notice issued in the name of the dead person is unenforceable in law. If such is the legal position, would the Revenue be justified in contending that they, having no knowledge about the death of the assessee, are entitled to plead that the notice is not defective. In my considered view, the answer to the question should be definitely against the Revenue. 17. This Court supports such a conclusion with the following reasons : Admittedly, the limitation period for issuance of notice for reopening expired on 31.3.2017. The impugned notice was issued on 30.3.2017 in the name of the dead person. On being intimated about the death, the Department sent the notice to the petitioner - his spouse to participate in the proceedings. This notice was well beyond the period of limitation, as it has been issued after 31.3.2017. If we approach the problem sans complicated facts, a notice issued beyond the period of limitation i.e. 31.3.2017 is a nullity, unenforceable in law and without jurisdiction. Thus, merely because ....
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.... issuance of notice under Section 147/148 of the Act was 31.3.2015 and on 02.7.2015 when the notice was issued, the assessee was already dead and if the Department intended to proceed under Section 147 of the Act, it could have done so prior to 31.3.2015 by issuing the notice to the legal heirs of the deceased and beyond that date, it could not have proceeded in the matter even by issuing notice to the legal representatives of the assessee. The decision in Vipin Walia fully supports the case of the petitioner herein. 22. The decision in the case of Vipin Walia was followed in the decision of the High Court of Gujarat in the case of Rasid Lala, in which, the re-assessment proceedings were initiated against the dead person, that too, after a long delay. The Court pointed out that even if the provisions of Section 159 of the Act are attracted, in that case also, the notice was required to be issued against and in the name of the heirs of the deceased assessee and under the said circumstances, Section 159 of the Act shall not be of any assistance to the Revenue. 23. In the decision of the Delhi High Court in the case of Spice Entertainment Ltd., one of the qu....