TaxTMI 
TaxTMI 
2023 (6) TMI 975
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....als), Ghaziabad arising out of penalty order dated 20.12.2017 passed by the ITO, Ward-1(2), Ghaziabad u/s 271(1)(c) of the Act. Both the appeals were heard together and are being disposed of by a common order for the sake of convenience. 2. Heard and perused the record. 3. Primarily the learned AR raised argument on the basis that the assessee Charan Singh had died and in his life time he was not served notice u/s 147/148 of the Act and even his son Satyaveer Singh who is appellant was not served any notice during the period prescribed under law to invoke jurisdiction u/s 147/148 of the Act. 4. Learned DR, however, has supported the orders of learned tax authorities, primarily submitting that the legal heirs were all served and the name is mentioned in the order of assessment. It was submitted that as they have joined the assessment so at this stage they cannot dispute the assessment. Reliance was placed on the judgment of Hon'ble M.P. High Court in the case of Smt. Kaushalyabai Vs. CIT (1999) 238 ITR 1008 (MP). 5. On the other hand, learned AR has heavily relied on the judgment of the Hon'ble Delhi High Court in the case of Savita Kapila L/H of Late Shri Mohinder Paul ....
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....uld be initiated. Then learned AO has fallen in error in following strange procedure of serving the already issued notices u/s 148 dated 22.3.2017 and 30.3.2017 upon the appellant Satyaveer Singh on 8.11.2017. In any case, if Satyaveer Singh was impleaded, as observed by learned CIT(Appeals), for the purpose of section 159, then the notices should have been specific to that effect. In this context the judgment which learned AR has relied of Hon'ble Delhi High Court in Savita Kapila case ( supra) squarely applies and covers all the legal aspects. Hon'ble Delhi High Court in paragraphs 25 to 40 has observed as follows: "25. In the present case the notice dated 31st March, 2019 under Section 148 of the Act, 1961 was issued to the deceased assessee after the date of his death [ 21st December, 2018] and thus inevitably the said notice could never have been served upon him. Consequently, the jurisdictional requirement under Section 148 of the Act, 1961 of service of notice was not fulfilled in the present instance. 26. In the opinion of this Court the issuance of a notice under Section 148 of the Act is the foundation for reopening of an assessment. Consequently, the si....
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....itation in accordance with Section 149(l)(b) of the Act, 1961. 29. In Smt. Sudha Prasad (supra) the petitioner had challenged the assessment order and demand notice only. Neither non-issuance of notice was challenged nor the issue of proceedings being barred by limitation was raised or decided. Consequently, the said judgment is inapplicable to the present case and is therefore, of no help to the revenue. AS IN THE PRESENT CASE PROCEEDINGS WERE NOT INITIATED / PENDING AGAINST THE ASSESSEE WHEN HE WAS ALIVE AND AFTER HIS DEATH THE LEGAL REPRESENTATIVE DID NOT STEP INTO THE SHOES OF THE DECEASED ASSESSEE, SECTION 159 OF THE ACT, 1961 DOES NOT APPLY TO THE PRESENT CASE. 30. Section 159 of the Act, 1961 applies to a situation where proceedings are initiated / pending against the assessee when he is alive and after his death the legal representative steps into the shoes of the deceased assessee. Since that is not the present factual scenario, Section 159 of the Act, 1961 does not apply to the present case. 31. In Alamelu Veerappan Vs. The Income Tax Officer, Non Corporate Ward 2 (2), Chennai, 2018 (6) TMI 760 - Madras High Court, it has been held by t....
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....ware about the amalgamation. However, the said judgment nowhere states that there is an obligation upon the legal representative to inform the Income Tax Department about the death of the assessee or to surrender the PAN of the deceased assessee. The relevant portion of the said judgment is reproduced hereinbelow:- "35. In this case, the notice under Section 143(2) under which jurisdiction was assumed by the assessing officer was issued to a non- existent company. The assessment order was issued against the amalgamating company. This is a substantive illegality and not a procedural violation of the nature adverted to in Section 292B. xxxxxxxxxx 39. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estopp....
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....o of the view that Section 292BB of the Act, 1961 is applicable to an assessee and not to a legal representative. Further, in the present case one of the legal heirs of the deceased assessee, i.e. the petitioner, had neither cooperated in the assessment proceedings nor filed return or waived the requirement of Section 148 of the Act, 1961 or submitted to jurisdiction of the Assessing Officer. She had merely uploaded the death certificate of the deceased assessee. In Commissioner of Income Tax-VIII, Chennai Vs. Shri M. Hemanathan, 2016 (4) TMI 258 - Madras High Court it has been held "In the case on hand, the assessee was dead. It was the assessee's son, who appeared and perhaps cooperated. Therefore, the primary condition 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 ....