TaxTMI 
TaxTMI 
2024 (6) TMI 1541
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....in passing the order in name of deceased person, who had died on 14.10.2018. It is submitted that there was clearly mentioned about legal heir in Form 35 and Form 35 has been duly filed and signed by wife of assessee i.e. Mrs. Hansaben Vinodbhai Parmar in the capacity of Legal heir. On facts and circumstances of the case, the various notices issued and order passed by Ld. CIT(A) are null and void and such impugned order deserves to be quashed and set aside as held by various Hon'ble Tribunals and High Courts. 2. The Learned CIT (Appeals) has grossly erred in confirming the Assessment Order passed by Ld AO dated 16.11.2019 in spite of the fact that the assessee has already died on 14.10.2018. It is submitted that since the assessee had died even before the assessment was framed, the completion of assessment by Ld. AO in the name of deceased person is completely incorrect and illegal. On facts and circumstances of the case, the whole proceedings starting from Assessment order to the order passed by the CIT(A) against the dead person is illegal and void abinitio and the assessment order passed in name of deceased person be quashed and set aside. The same please be held ac....
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....leave to add, alter and/or to amend all or any of the grounds before the final hearing of appeal." 3. The brief facts of the case are that the assessee is running a petrol pump and during the impugned year under consideration, the assessee has earned income from trading of lubricants i.e. petrol, diesel and oil and has filed its return of income and books of accounts are subject to audit under section 44AB of the Act. As per information regarding the cash transaction during demonetisation received from investigation Wing, Ahmedabad, the assessee had deposited cash amounting to Rs. 1,43,42,420/- in its Indian overseas Bank, Gandhinagar branch during the demonetisation period. Accordingly, the case of the assessee was selected for scrutiny under CASS for the reason "large value cash deposit during demonetisation period". The assessing officer, during the course of assessment proceedings issued several notices to the assessee dated 12-09-2019, 02-11-2019 and 07-11-2019, but the assessee all throughout remained non-compliant the source of cash deposit in the bank account of the assessee remained unexplained. Accordingly, in view of no response whatsoever from the side of the assesse....
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....f a deceased person. Even otherwise, the counsel for the assessee submitted that the assessee has a good case on merits, since the assessee is running a successful petrol pump and therefore the source of deposits in the bank account held by the assessee during the demonetisation period stands duly explained. Further, it was submitted that the assessing officer has disallowed 25% of administrative expenses on an adhoc basis and therefore, this addition/disallowance is not sustainable. The counsel for the assessee placed reliance on several judicial precedents, which are placed on record before us, in support of the contention that an assessment order framed in the name of the deceased person is void ab initio and hence, the assessment order is liable to be set aside. On the issue/query raised to the assessee regarding the nonappearance of the legal heirs of the assessee and non-intimation to the Department that the assessee had expired, the counsel for the assessee submitted that at the time of issuance of first notice of hearing dated 21-09-2018, which was served on the ITP of the assessee, the assessee was alive, but the assessee was not keeping in good health and shortly expired ....
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....(A), during the course of appellate proceedings despite large number of notices. In the facts of the instant case, certain points are noteworthy. At the time when the assessment proceedings were initiated, and the first notice of hearing was duly served in the ITP representing the assessee, the assessee was alive. At the time of hearing before us, no concrete/plausible reason was given by the counsel for the assessee to show that such notice was not duly served upon the assessee/legal representatives of the assessee by the ITP (a general explanation was given that owing to the ill-health of family member of ITP, such notice could not be given by the ITP to the assessee or his legal representatives). Secondly, as soon as the assessment order was framed, the legal representatives of the assessee filed appeal before Ld. CIT(A) (albeit with a minor delay) and therefore, from the facts which emerge before us, it cannot be concluded that the legal representatives for not at all aware about the assessment proceedings/assessment order which had been framed in the name of the deceased assessee. However, no intimation was given to the tax Department regarding the death of the assessee by the....
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....ed 16-6-2021] held that when the assessee expired after the hearing was over and the assessment order was passed by the Assessing Officer subsequent to the death of the assessee, such assessment order was not void initio as opined by the Tribunal since the issue is covered under section 159(2) of the Act. The High Court, however, set aside the issue to the Assessing Officer directing him to issue notice to the legal representatives of the deceased assessee and thereafter to pass a fresh order of assessment. In the case of Md. Zafrulla, Legal Representative of Md. Rafiulla v. CIT 72 TAXMAN 231 (GAU.), the High Court held that principle under Order 22, rule 6 of the Civil Procedure Code that if death occurs between conclusion of hearing and pronouncement of judgment, judgment may in such case be pronounced notwithstanding death and shall have same force and effect as if it had been pronounced before death took place, should be extended in a proceeding under Income-tax Act on the ground of policy of law. Therefore, this would at best be a defect which could be corrected and therefore, assessment order made without notice to legal representative is not null and void where death of asse....
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....sessment proceedings. However, his death was not brought to notice of ITO who completed assessment. The AAC set aside assessment and directed ITO to reframe assessments after getting names of legal representatives and after issuing notices to them. The High Court held that assessment after death of assessee and without issuing notices to his legal representatives was not liable to be annulled. Since the Tax officer framing the assessment was wholly unaware of death of assessee, ITO was unable to comply with provisions of law and, therefore, those assessments were rightly set aside by AAC to reframe assessments after bringing legal representatives on record, in as much as they were not in accordance with relevant provisions of Act. 11. The Gujarat High Court in the case of CIT v. Sumantbhai C. Munshaw (decd.)5 Taxman 27 (Gujarat) made the following observations, relevant to the issue at hand before us: A decree against a dead person is not a nullity for all purposes. If at the date of the death of the deceased assessee, a return in respect of the income earned by him in the previous year had already been filed and the assessment proceeding had commenced, it would not be ....