TaxTMI 
TaxTMI 
2026 (9) TMI 857
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....roceedings, the final assessment order was also passed in the name of the deceased. The assessee has further challenged the reopening on account of absence of valid service of notice and incorrect assumption of facts in the reasons recorded. On merits, the assessee has challenged the addition of Rs.63,70,000 made under section 56(2)(vii)(b)(ii) and the further addition of Rs.45,372 on account of alleged income from share and futures and options transactions. 2. When the appeal was called for hearing, none appeared on behalf of the assessee. Since the material necessary for adjudication of the jurisdictional grounds is available on record and the issue arising therefrom can be decided on the basis of the assessment order, the impugned appellate order and the grounds of appeal, we proceed to dispose of the appeal after hearing the learned Departmental Representative and upon perusal of the material placed before us. 3. Brief facts are that Late Shri Satish Pandurang Naik was an individual deriving income from house property, share of profit and remuneration as partner in a firm and income from other sources. He expired on 26.05.2011. Thereafter, the return of income for the yea....
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....as accordingly assessed at Rs.66,26,251. In the first appeal, the learned CIT(A) recorded that the assessee had expired on 26.05.2011 and that the return of income had thereafter been filed by his wife as legal heir on 31.07.2011. However, the foundational objection concerning the validity of the notice and the assessment framed in the name of the deceased was not adjudicated. The learned CIT(A) proceeded to examine the additions on merits and upheld both the additions. 6. Before us, the learned Departmental Representative relied upon the orders of the authorities below and submitted that the authorised representative had appeared during the assessment proceedings and furnished the requisite details. It was accordingly contended that the legal representative had participated in the proceedings and that any defect in the description or name of the assessee stood cured by the provisions of sections 292B and 292BB of the Act. 7. We have heard the learned Departmental Representative and perused the relevant material available on record. Since Grounds Nos. 1 to 3 assail the very assumption of jurisdiction under sections 147 and 148, the same are taken up together. The material fac....
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....legal representative by virtue of the statutory fiction. However, where no proceeding had been initiated during the lifetime of the assessee and it is sought to be commenced after his death, the jurisdictional notice must necessarily be issued to the legal representative in that capacity. Section 159 enables assessment of the income of a deceased person through his legal representative; it does not authorise initiation or continuation of proceedings against a dead person. 10. The issue is directly governed by the judgment of the Hon'ble jurisdictional High Court in Sumit Balkrishna Gupta v. Assistant Commissioner of Income-tax [(2019) 414 ITR 292 (Bom.)]. The Hon'ble High Court held that the issuance of a jurisdictional notice in the name of the correct and living person is not a mere procedural requirement but a substantive condition precedent for a valid assumption of jurisdiction. A notice issued in the name of a deceased person is non est in law and such a fundamental infirmity is not capable of being cured under section 292B. It was further held that where the Department was aware of the death and the identity of the legal representative, there could be no justification for....
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....nt of a mistake, defect or omission when, in substance and effect, it conforms to the intent and purpose of the Act. A jurisdictional notice addressed to a person who was no longer alive cannot be regarded as being in substance and effect in conformity with the Act. The infirmity goes to the identity and existence of the noticee and, consequently, to the assumption of jurisdiction itself. It is not a case of an incorrect description, typographical error or curable misnomer. Section 292BB also operates in the field of service of notice and does not dispense with the anterior requirement that a valid jurisdictional notice must first be issued to the person sought to be assessed. Moreover, the assessee had raised objections to the validity of the reassessment proceedings before completion of the assessment, and the proviso to section 292BB expressly preserves an objection so raised. Appearance by an authorised representative and furnishing of information after raising a jurisdictional objection cannot be treated as an unconditional submission to jurisdiction. Participation for the purpose of contesting an invalid proceeding cannot confer upon the Assessing Officer a jurisdiction which....