TMI Blog2022 (10) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... dial action. Thus, I respectfully following the decisions pf Hon ble High Courts hold that reassessment proceedings initiated against a dead person is void ab initio and consequent action initiated and completed which is affirmed by ld. CIT(A) is set aside and assessment order is quashed. In the result, ground raised by the appellant is allowed. - ITA No. 771/Srt/2018 - - - Dated:- 30-9-2022 - Shri Pawan Singh, Judicial Member For the Assessee : Shri Suresh K Kabra, CA For the Department : Shri Vinod Kumar, Sr.DR ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the legal heirs of assessee namely Late Jayantilal H Patel (hereinafter referred as the appellant) is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purchased unit of mutual fund of Rs. 12.00 lacs on 21/01/2010 from HDFC Mutual fund which remained unexplained. As the assessee neither filed return of income nor responded to various notices, the Assessing Officer took his view that the assessee has nothing to say, accordingly, due to non-compliance, the investment in mutual fund of Rs. 12.00 lacs, was treated as unexplained investment under Section 69 of the Act. The Assessing Officer further noted that the assessee made deposit in Bank of Baroda on various dates from May, 2009 to November, 2009 aggregating of Rs. 8,23,747/-. The assessee despite giving various show cause notice, has not explained the source of credit, therefore, the total credit of Rs. 8,23,747/- in savings bank accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and hence she never fled return of income. The Assessing Officer made addition without appreciating of fact. The appellant vide her submission sent through e-mail on 21/3/2018, further submitted that the appellant and her husband was residing in United State of America (USA) since 2007 and were visiting India, occasionally. Her husband expired on 12/5/2013 and she allegedly enclosed death certificate of her husband. 4. The ld. CIT(A) after considering the submission of appellant has noted that there was delay of 85 days in filing of appeal before him 5. . The delay was condoned by the ld. CIT(A) by taking a view that the assessee died and legal heirs of assessee was staying abroad. On merit, the ld. CIT(A) upheld the action of Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions filed for seeking condonation of delay in filing appeal before ld CIT(A). Such fact is duly recorded by the ld. CIT(A) in para 4 of his order. The ld. CIT(A) despite recording the fact that husband of appellant has died has not given any finding on such legal issue. Thus, the initiation of reopening against a dead person is void ab initio. Since the assessee has died, thus, there is no occasion for revenue to serve notice on the appellant. The ld. AR submits that even otherwise, notice under Section 148 was not served upon the legal heir of assessee. The legal heir/appellant was not residing at the address mentioned in the assessment order. The ld. AR for the assessee submits that the reopening against a dead person is nullity, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... husband expired on 12/05/2013 and the death certificate of deceased is hereby attached. The ld. AR submits that without admitting the fact that if it is presumed that death certificate was not attached with her application for condonation of delay, it was the duty of ld. CIT(A) to call the death certificate or seek the remand report from the Assessing Officer. 9. I have considered the submissions of both the parties and have gone through the orders of lower authorities carefully. I have already called the record of assessment as well as record of first appellate authority/ld. CIT(A) to ascertain whether notice under Section 148 or other notice during assessment proceedings was served or not. Perusal of assessment order shows that neithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequential order passed thereafter are without jurisdiction and is liable to be quashed/set aside. I find that the Hon ble Gujarat High Court in the case of Bhupendra Bhikhalal Desai Vs ITO (supra) held that notice issued under section 153C against dead person is unenforceable in law; in such case revenue cannot contend that as they have no knowledge about death of assessee, they are entitled to plead that notice is not defective. In the Krishnaawtar Kabra Vs ITO (supra), the Hon ble Gujarat High Court has also held that reopening notice under section 148 issued upon deceased assessee was void an initio and therefore, consequential proceedings and orders passed thereon were without any jurisdiction and were to be quashed and set aside. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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