TaxTMI 
TaxTMI 
TaxTMI 
2024 (4) TMI 547
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....n the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals), NFAC, has erred in confirming the action of assessing officer in passing penalty order in the name of deceased assessee & thus said order being void is required to be quashed. 3. It is therefore prayed that above addition made by assessing officer and confirmed by Commissioner of Income-Tax (Appeals), NFAC may please be deleted. 4. Assessee craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal." 3. Succinct facts qua the issue are that during the assessment proceedings, the assessing officer noted that assessee has not filed his return of income for the assessment year (AY) 2011-12 or earlier Assessment years and the name of the assessee is appearing in NMS Module. Information in assessee`s case has been collected after viewing the ITS data, the assessee deposit cash of Rs. 7,26,236/- in Bank of Baroda, received interest u/s 94A amounting to Rs. 1,11,520/- and salary of Rs. 21,39,250/-, during year under consideration. Accordingly, assessee`s case was selected and notice 148 of the I.T. Act was issued on....
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....ome. It can also be seen that assessee has filed the return of income in response to the notice u/s 148 of the I.T. Act and also offered the tax on the income disclosed in response to notice under section 148 of the Act. Hence, the penalty of Rs. 1,87,005/- is prayed to be deleted. 8. On the other hand, Ld DR for the Revenue, argued that the assessment order was passed by the assessing officer when the assessee was alive. The assessing officer issued show cause notice for levy of penalty on the assessee on 07-12-2019 when the Assessee was alive. Further, another notice was issued on 23-12-2020 and a reminder on 01- 01-2022 was issued to reply to the show cause notice. These notices were issued when the assessee was alive. The assessing officer was not made aware of the demise of the Assessee by the Assessee`s legal representatives that Assessee passed away on 12-02-2022. Therefore, matter may be remitted back to the file of the assessing officer for fresh adjudication. 9. On merit also the ld DR for the revenue submitted that assessee has not pointed out that there was not a conscious concealment of income. Hence, penalty should be imposed on the assessee. 10. We have heard both....
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....CTION TO INITIATE ASSESSMENT PROCEEDING, THE MERE FACT THAT SUBSEQUENT ORDERS HAVE BEEN PASSED WOULD NOT RENDER THE CHALLENGE TO JURISDICTION INFRUCTUOUS. 23. It is well settled law that an alternative statutory remedy does not operate as a bar to maintainability of a writ petition in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or notice or proceedings are wholly without jurisdiction or the vires of an Act is challenged. [See Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others [1998] 8 SCC 1]. 24. Further, the fact that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequently would have no legs to stand. If the notice goes, so does the order of assessment. It is trite law that if the Assessing Officer had no jurisdiction to initiate assessment proceeding, the mere....
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....der 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 sine qua non for 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 merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. [See Sumit Balkrishna Gupta v. Asstt. Commissioner of Income Tax, Circle 16(2), Mumbai & Ors. [2019] 2 TMI 1209 - Bombay High Court. 27. In Chandreshbhai Jayantibhai Patel v. The Income-tax Officer 2019 (1) TMI 353 - Gujarat High Court has also held, "the question that therefore arises for consideration is whether the notice under section 148 of the Act issued against the d....
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....ation 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 v. The Income-tax Officer, Non Corporate Ward 2(2), Chennai 2018 (6) TMI 760 - Madras High Court, it has been held by the Madras High Court, "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." In Rajender Kumar Sehgal (supra), a Coordinate bench of this Court has held, "This court is of the opinion that the absence of any provision in the Act, to fasten revenue liability upon a deceased individual, in the absence of pending or p....
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....g 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 estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment. 34. Consequently, the legal heirs are under no statutory obligation to intimate the death of the assessee to the revenue. SECTION 292B OF THE ACT, 1961 HAS BEEN HELD TO BE INAPPLICABLE VIZ-A-VIZ NOTICE ISSUED TO A DEAD PERSON IN RAJENDER KUMAR SEHGAL (SUPRA), CHANDRESHBHAI JAYANTIBHAI PATEL (SUPRA) AND ALAMELU VEERAPPAN (SUPRA). 35. This Court is of ....
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....re 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 by the assessee, he should not be allowed to take advantage of certain procedural defects. That was the purpose behind the enactment of Section 292BB. It cannot be invoked in cases where the very initiation of proceedings is against a dead person. Hence, the second contention cannot also be upheld." 39. Even a Coordinate Bench of this Court in Rajender Kumar Sehgal (supra) has held "If the original assessee had lived and later participated in the proceedings, then, by reason of Section 292BB, she would have been precluded from saying that no notice was factually served upon her. When the notice was issued in her name- when she was no longer of this world, it is inconceivable that she could have participated in the reassessment proceedings, (nor is that the revenue's case) to be estopped from contending that she did not re....