TaxTMI 
TaxTMI 
2024 (11) TMI 853
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....d on a dead person and hence the penalty u/s. 271(1)(c) of the Act of Rs. 22,25,518/- for concealment of income may be deleted. 3) The NFAC failed to appreciate that Assessment Order u/s. 143(3) r.w.s. 147 of the Act is bad in law as same is passed against a dead person and hence the penalty u/s. 271(1)(c) of the Act of Rs. 22,25,518/- for concealment of income may be deleted. 4) The NFAC failed to appreciate that the Learned Assessing Officer has erred in levying penalty u/s. 271(1)(c) of the Act of Rs. 22, 25,518/- for concealment of income without appreciating that there was no deliberate intention to conceal the income and hence penalty u/s. 271(1)(c) of the Act of Rs. 22, 25,518/- for concealment of income may be deleted. 5) Appellant craves leave to add, amend or delete the grounds of appeal during the course of appellate proceedings. 2. The assessee has raised the following grounds of appeal in ITA No. 705/Mum/2024:- 1) The NFAC erred in dismissing the appeal of the Assessee on the ground of delay without appreciating that there was a reasonable cause for delay in filing appeal and hence the delay in filing appeal before the NFAC be condone. 2) The NFAC failed to ....
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....s. 2,00,000/- or more for purchase of units of mutual funds Rs. 21,47,000/- 2 Share transaction made by the assessee Rs. 51,34,328/- 3 Investment made in Mutual Funds Rs. 1,36,000/- 4 Interest income other than interest on securities to a resident Rs. 3,01,660/- Total Rs. 77,18,988/- However, it is further seen from the ITD records that the assessee has not filed return of income and in this case, no assessment has been made till date. Accordingly, the only requirement to initiate proceedings u/s. 147 is the reason to believe which has been recorded as above. Considering the facts as mentioned above the case of the assessee was reopened u/s. 147 of the Act and a notice u/s. 148 of the Act was issued on 27.3.2019. 4. In response to the notice u/s. 148 of the Act there was no return filed by the assessee within 30 days. Thereafter notices u/s. 142(1) of the Act was issued to the assessee vide dated 17.8.2019, 29.8.2019, 07.10.2019 and 14.10.2019 on the addresses available on record and email id also. Ultimately, assessment was completed ex-parte u/s. 144 r.w.s. 147 of the Act and income of the assessee was assessed at Rs. 77, 18,988/-. The assessee being aggriev....
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.... case of [2020] 118 taxmann.com 46 (Del.) Savita Kapila v. ACIT, Circle 4(1), and Wherein the Hon'ble High Court observed as under: "COURT'S REASONING AN ALTERNATIVE STATUTORY REMEDY DOES NOT OPERATE AS A BAR TO MAINTAINABILITY OF A WRIT PETITION WHERE THE ORDER OR NOTICE OR PROCEEDINGS ARE WHOLLY WITHOUT JURISDICTION. IF THE ASSESSING OFFICER HAD NO JURISDICTION 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 pe....
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....THE SINE QUA NON FOR ACQUIRING JURISDICTION TO REOPEN AN ASSESSMENT IS THAT NOTICE UNDER SECTION 148 SHOULD BE ISSUED TO A CORRECT PERSON AND NOT TO A DEAD PERSON. CONSEQUENTLY, THE JURISDICTIONAL REQUIREMENT UNDER SECTION 148 OF THE ACT, 1961 OF SERVICE OF NOTICE WAS NOT FULFILLED IN THE PRESENT INSTANCE. 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 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 Sum....
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.... 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 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 leg....
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....sessing 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. ** ** ** 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 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,....
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....-VIII, Chennai v. 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 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,....