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2020 (9) TMI 142
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...., the facts of the case are that the assessment in this case was completed by the Assessing officer u/s 147 read with section 144 vide order dated 16.12.2016 wherein the long term capital gain on sale of an immovable property amounting to Rs. 26,26,772/- was brought to tax. In appeal, the same has been confirmed by the ld. CIT(A). Hence, the present appeal through the legal heir, Smt Lalita Rawat, wife of the deceased assessee which has come up for adjudication before us. 3. In ground Nos. 1 and 2, the legal heir of the deceased assessee has challenged the assumption of jurisdiction u/s 147 by issuing notice u/s 148 on the deceased assessee and consequent reassessment order passed u/s 147 r/w 144 of the Act. 4. In this regard, the ld. AR submitted that the issuance of valid notice is a foundation for the valid re-assessment proceedings. The notice prescribed u/s 148 is not a mere procedural requirement, but is a condition precedent to the validity of reassessment proceedings. If no notice is issued or if the notice issued is shown to be invalid, the proceedings initiated by the Assessing Officer would be invalid and void. In the instant case, it was submitted that the proc....
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....s stage of the proceedings cannot be allowed. She accordingly supported the findings of the AO and the ld CIT(A). 6. We have heard the rival contentions and perused the material available on record. The undisputed facts are that the assessee, Shri Gopal Lal Rawat had expired on 24.04.2012 at the Kanpur railway station as per death certificate dated 25.06.2012 issued by Kanpur Municipal Corporation. Thereafter, the reasons for reopening the assessment u/s 147 were recorded and thereafter approved by the Competent authority on 23.03.2016 and the notice u/s 148 was issued in the name of deceased assessee on 30.03.2016. Therefore, at the time of issuance of the notice u/s 148, the assessee had already expired and the notice was thus issued in the name of deceased assessee. Further, we find that there is no subsequent notice u/s 148 which was issued by the Assessing Officer on the legal heirs of the deceased assessee and therefore, the provisions of section 159 cannot be invoked in the instant case. In any case, the limitation for issue of notice u/s 148 had expired on 31.03.2016 and beyond such limitation period, no notice can be issued in the name of the legal Heirs. It is a set....
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....d have done so prior to 31st March 2015 by issuing a notice to the LRs of the deceased. Beyond that date it could not have proceeded in the matter even by issuing notice to the LRs of the Assessee." 9. Similar view has been taken earlier by the Hon'ble Allahabad High Court in case of CIT vs. Suresh Chandra Jaiswal (supra) wherein it was held as under:- "In the present case, the notice u/s 148 was addressed to an assessee who was already dead even on the date of issue of notice. The notice was issued on 28th March, 1985, while the assessee, Ganga Prasad Jaiswal had died on 20th March, 1985. The notice was not served upon the legal representatives of Ganga Prasad Jaiswai but it was served on one Keshav Ram, munim. Even the name of the deceased assessee was not correctly mentioned in the notice. The notice was addressed to Ganga Prasad Jaiswai while the correct name of the assessee was Ganga Ram Jaiswal. The Tribunal was right in holding that the defects in the notice under s. 148 were not cured by s. 292B." 10. Similar view has been taken by the Hon'ble Madras High Court in case of Alamelu Veerappan vs ITO (supra), following the decision of the Hon....
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.... the legal representatives of the deceased assessee to immediately intimate the death of the assessee or take steps to cancel the PAN registration. 18. In such circumstances, the question would be as to whether Section 159 of the Act would get attracted. The answer to this question would be in the negative, as the proceedings under Section 159 of the Act can be invoked only if the proceedings have already been initiated when the assessee was alive and was permitted for the proceedings to be continued as against the legal heirs. The factual position in the instant case being otherwise, the provisions of Section 159 of the Act have no application. 19. The Revenue seeks to bring their case under Section 292 of the Act to state that the defect is a curable defect and on that ground, the impugned notice cannot be declared as invalid. 20. The language employed in Section 292 of the Act is categorical and clear. The notice has to be, in substance and effect, in conformity with or according to the intent and purpose of the Act. Undoubtedly, the issue relating to limitation is not a curable defect for the Revenue to invoke Section 292B of the Act." 12. In....
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....ervice and without noting the status and the reasons of non service of the said notice the AO proceeded to frame the assessment ex parte. The AO has also mentioned that the notice issued under section 142(1) as well as under section 144 of the Act and there was no response even to those notices issued by the AO. However, the AO was again silent about the service of the said notice issued by the AO. Thus it appears that the AO has proceeded to frame the ex parte assessment ignoring the fact of service of the notice as well as the death of the assessee prior to issue of the notice under section 148 of the Act. The assessee though pointed out this fact before the ld. CIT (A) and also explained that since the son of the deceased assessee was residing in USA, therefore, there was no response to the notice issued by the AO. However, the ld. CIT (A) has again dismissed the appeal of the assessee ex parte due to non appearance. The ld. A/R pointed out that since nobody from the side of the assessee was residing in India, therefore, the address of the A/R was given for the purpose of notices but the ld. CIT (A) has not issued the notice to the address given in Form No. 35. Without ....
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....half of the revenue, it has been contended that issuance of the notice to the dead assessee is merely a technical defect which could be corrected under section 292B of the Act. Reliance has been placed on the above referred decisions of the Supreme Court as well as the High Courts for contending that the proceedings would not be null and void merely because the notice has been issued against a dead person as the legal representative had received the notice and has objected to the validity of the notice and further continuation of the proceedings. In the opinion of this court, here lies the distinction between those cases and the present case. In the relied upon cases, the legal representative, in response to the impugned notice, filed return of income and participated in the proceeding and then raised an objection to the validity of the proceeding and, therefore, the court held that this was a case of waiver and that a technical defect can be waived; whereas in this case, right from the inception the petitioner has objected to the validity of the notice and thereafter to the continuation of the proceeding and has at no point of time participated in the proceeding by filing....
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....)(6) (supra) would be squarely applicable to the facts of the present case. Therefore, in view of the provisions of section 159(2)(b) of the Act, it is permissible for the Assessing Officer to issue a fresh notice under section 148 of the Act against the legal representative, provided that the same is not barred by limitation; he, however, cannot continue the proceedings on the basis of an invalid notice issued under section 148 of the Act to the dead assessee. 19. In the facts of the present case, as noticed hereinabove, the notice under section 148 of the Act, which is a jurisdictional notice, has been issued to a dead person. Upon receipt of such notice, the legal representative has raised an objection to the validity of such notice and has not complied with the same. The legal representative not having waived the requirement of notice under section 148 of the Act and not having submitted to the jurisdiction of the Assessing Officer pursuant to the impugned notice, the provisions of section 292B of the Act would not be attracted and hence, the notice under section 148 of the Act has to be treated as invalid. In the absence of a valid notice, the Assessing Officer has no....
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.... 8. The facts in the present case are identical to the case of Chandreshbhai Jayantibhai Patel (supra), as in the facts of the present case also father of the petitioner expired on 12.6.2016 and impugned notice was issued on 28.3.2018. In facts of the present case, even prior to issuance of notice, department was aware about the death of the petitioner's father since on 13.3.2018 in response to the summons issued under section 131(1A) of the Act, the petitioner had intimated to the department about the death of his father. Therefore, it cannot be said that the respondent was not aware about the death of the father of the petitioner and he could have belatedly issued notice under section 159 of the Act upon the legal representatives of late Shri Kanubhai Nagjibhai Rajpara. 9. The contention advanced by the learned senior standing counsel for the respondent that since Permanent Account Number of late Shri Kanubhai Nagjibhai Rajpara was active, it can be presumed that tax payer was alive, cannot be sustained in view of the fact that only because Permanent Account Number is active, petitioner or any assessee is not liable to file the return of income and on that basis i....