TaxTMI 
TaxTMI 
2025 (9) TMI 1734
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.... time, which led to this delay. Considering the explanation, the delay in filing the appeal is condoned. 3. The brief facts of the case are that the assessee didn't not file his return of income for the A.Y. 2013-14. The AO had received an information that the assessee had made cash deposit of Rs. 25,00,000/- and also made time deposit of Rs. 45,58,052/- during the year. On the basis of this information the case of assessee was reopened under section 147 of the Act after obtaining due approval of the prescribed authority and a notice under section 148 of the Act was issued on 24.03.2020. In the course of assessment, no compliance was made by the assessee. Therefore, the AO had treated the entire cash deposit and the time deposit totalling Rs. 70,92,025/- as unexplained income of the assessee. The assessment was completed under section 147 r.w.s. 144 of the Act on 20.09.2021 at total income of Rs. 70,92,025/-. 4. Aggrieved with the order of the Assessing Officer, the assessee had filed an appeal before the First Appellate Authority which was decided by the Ld. CIT(A) vide the impugned order and the appeal of the assessee was dismissed. 5. Now, the assessee is in appeal befo....
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.... Officer in the name of dead person. 11. It is therefore prayed that the above addition/disallowance made by the assessing officer may please be deleted. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal." 6. Sri Hardik Vora, the Ld. AR of the assessee submitted that the assessment order was passed in this case in the name a deceased person. He submitted that the fact the assessee had expired in the course of assessment proceeding, was brought to the knowledge of the AO, still the assessment order was passed in the name of the deceased person, which was not correct. The Ld. AR submitted that in view of various judicial precedents where in a position has been taken consistently, that no assessment can be framed in the name a deceased person, the assessment order passed in the name of deceased assessee was ab initio void. In this regard he relied upon the decision of Hon'ble Gujarat High Court in the case Krishnaawtar Kabra vs. ITO (140 taxmann.com 423) (Gujarat). Reliance was also placed on the decision of to Co-ordinate Bench of this tribunal in the case of Chandrakant A Gandhi vs. ACIT (40 tax 423) (Ahm....
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....owing another opportunity to the assessee to file the return of income, but once again no return was filed. However, an online response was filed on behalf of the assessee on 15 October 2020, informing that the assessee, Mr. K V Prabhakaran, was diagnosed with cancer and was on bed rest under medical treatment and, therefore, time of one month was sought for compliance in the matter. (v) Thereafter, in response to another letter of the AO, an online submission was made on 19th February 2021, informing that the assessee had expired in the month of November 2020 and, therefore, the information as required could not be gathered. It was also informed that the death certificate will be uploaded when received. (vi) In response to another notice under section 142(1) with due date of compliance on 5th April 2021, an online response was filed requesting for more time to gather the required information. It was informed that the time deposits were made out of closure of previous fixed deposits and that the cash deposits were out of earlier withdrawals. However, no death certificate or details of legal hairs was filed along with this reply. (vii) Thereafter, a final ....
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....lly different. In that case the notice under section 148 of the Act was issued on a deceased person. Therefore, the Hon'ble High Court had held that the notice u/s 148 addressed to deceased assessee was void ab initio and consequential proceedings and orders passed thereon were without any jurisdiction and were, therefore, quashed. In the present case, however, the notice u/s 148 was not issued to the deceased assessee. Therefore, the jurisdiction in the present case was validly assumed and, therefore, the ratio of that decision cannot be applied to the facts of the present case. 11. Reliance has also been placed by the assessee on the decision of Co-ordinate Bench of this Tribunal in the case of Chandrakant A. Gandhi (supra). In that case the penalty proceeding was initiated on a dead person and no show-cause notice for penalty was issued to the legal heir(s) of the deceased. Since the legal heirs of the deceased were not impleaded in the penalty proceedings, the penalty order passed under section 158BFA(2) of the Act on the dead person was held as null and void and quashed. Thus, the order was quashed in that case for the reason that the jurisdiction was not correctly assumed,....
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.... 148 of the Act and, therefore, the AO was vested with jurisdiction over the case. There was valid notice, as it was issued when the assessee was alive and the issuance of valid notice conferred power upon the AO to assume jurisdiction for initiation of proceedings for assessment of escapement of income. It is a cardinal proposition in law that not issuing notice at all or issuing that beyond statutory period or issue of an invalid notice under Section 148 does affect the jurisdiction of AO and would make the assessment/reassessment "null and void" because the notice under this section is not a mere procedural requirement but a condition precedent to assume jurisdiction and to make a valid assessment/reassessment. There was no such infirmity in the notice issued in the present case and, therefore, the assessment completed pursuant to such valid notice can't be held as invalid, without jurisdiction and void ab initio. 15. The Hon'ble Gujarat High Court has held in the case of CIT v. Sumantbhai C. Munshaw (decd.)5 Taxman 27 (Gujarat) that a decree against a dead person is not a nullity for all purposes. According to the Hon'ble High Court the assessment order in the name of the de....
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.... ground. Such an exercise of option on his part is not against public policy or public morality because the waiver is of a statutory provision which is conceived not in public interest but in the interest of the legal representative. It is obvious, therefore, that under such circumstances, the contravention of the relevant statutory provision would be a mere irregularity may be a gross irregularity, but not a nullity." 16. In the present case no objection was raised by the legal representatives in the course of hearing with regard to the continuance of the assessment proceeding against the deceased person. The legal representatives of the assessee were aware of the continuing assessment proceeding against the deceased assessee and also had made compliances before the AO after his death. The death certificate of the assessee was issued on 05/11/2020, the AO was informed about the death on 19th February, 2021 and the death certificate was uploaded before the AO only a few days before the limitation date. Further, the detail of legal heirs of the assessee was never brought on record. Considering these facts, as held by the Hon'ble Gujarat High Court in the case of Sumantbhai C. Mun....