2021 (10) TMI 733

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.... the entire proceedings is liable to be quashed." 2. The ld. AR at the outset submitted that notice u/s. 148 of the Act has been issued in the name of a person who was deceased and was not in existence, therefore, the notice issued u/s. 148 is illegal and any order passed in view of such notice is also void ab initio and hence, it was prayed that the assessment order passed may be quashed. Reliance in this respect was placed on a judgment of Lucknow Bench of the Tribunal in the case of Late Harish Bahadur Khare vs. ITO, in ITA No. 720/Lkw/2019 wherein the Tribunal vide order dated 30.07.2021 has held that the notice issued in the name of a dead person cannot empower the Assessing Officer to pass a valid assessment order. 3. The ld. DR, on....

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....nd further I find that no notice u/s. 148 has been issued in the name of the legal heir of the assessee. I find that the Lucknow bench of the Tribunal in the case of Late Harish Bahadur Khare (Supra), vide order dated 30.07.2021 has dealt similar issue and has quashed the assessment order by holding as under: "4. I have heard the rival parties and have perused the material available on record. I find that it is undisputed fact that assessee had died on 01.07.2012 which fact is noted by the Assessing Officer himself at page 2 in para 2 of his order. The notice was issued on 26.03.2015 and which was served by affixture on 31.03.2015. Therefore, when the notice was issued, the assessee was not in existence and was already dead and therefore ....

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....or acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not a merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. Thus, a notice which has been issued in the name of the dead person is also not protected either by provisions of Section 292B or 292BB of the Act. This is so as the requirement of issuing a notice in the name of correct person is the foundational requirement to acquire jurisdiction to reopen the assessment. The Hon'ble High Court has further observed that Section 148 of the Act requires that before a proceeding can be taken up....

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....tion of the same at the door of the house of the assessee. Further, the report of service through affixation have not been witnessed by any person. Had the Income-tax officials actually gone to the house of the deceased assessee and enquired from the villagers about the whereabouts of the assessee for the purpose of service of the notice, they could have easily come to know about the death of the original assessee and would have accordingly apprised the Assessing officer. 6. It is not believable that the Revenue officials had visited the house of the assessee and they could not get the information about the death of the assessee despite affixation of the notice which is also required to be witnessed by some independent/respectable of the ....