TMI Blog2023 (2) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, Department has proceeded to pass Re-assessment Order u/s 147/148 despite being aware that the assessee has already died on 18.01.2016. Thus, it appears that the very initiation of the re-assessment proceedings against the original-assessee is non est and void ab initio, especially because the said assessee had already died without even substituting and/or transposing legal heirs of the said assessee in accordance with law. - Decided in favour of assessee. - HON BLE THE ACTING CHIEF JUSTICE APARESH KUMAR SINGH AND HON BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner : Mr. Sumeet Gadodia, Advocate For the Respondents : Mr. Ratnesh Nandan Sahay, Sr.S.C. The petitioner has prayed for following reliefs: (i) For issuance of an appropriate writ/order/direction, including Writ of Certiorari, to call for and quash the Notice dated 18.03.2020 issued under Section 148 of the Income Tax Act, 1961, including all consequential orders passed pursuant to the said Notice, against Late Bhim Sain Chopra @ Bhim Sen Chopra, as the very initiation of the re-assessment proceedings against the said assessee is nonest and void ab initio, especially because the said assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion as sought for in the said notice. Petitioner duly submitted a detailed response to the respondent-authority vide online response dated 22nd February, 2021 reiterating that the assessee-Bhim Sain Chopra had died and again annexed the death certificate. Despite the reply filed by the petitioner, respondents again issued Notice under section 142(2) of the Act against the deceased assessee with direction to furnish reply. Petitioner again submitted his reply and clearly informed the respondent that the amount of Rs.58,07,470.67/-, shown as Bill receivable relates to repairs of electrical equipment and machines with the CCL and the same was forming part of the gross and thus, the same has already been offered to taxation. Thereafter, show cause Notice was issued in the name of the deceased assessee, containing therein draft assessment order proposing to add an amount of Rs. 58,07, 471/- in the total turnover of the deceased assessee by treating it as undisclosed income and directed the assessee to submit his report to the said draft assessment. The petitioner, vide his e-mail, replied to the show cause and again reiterated that the original assessee had already expired and arbitrari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. He contended that Assessment/Reassessment order dated 10.09.2021 (Annexure-12) passed by Respondent No.4 under Section 147 of the Act against the deceased assessee-Bhim Sain Chopra @ Bhim Sen Chopra is non est and illegal having been passed against a dead person without even substituting and/or transposing legal heirs of the said assessee in accordance with law. In support of his contention, learned counsel relied upon the judgments passed in the following cases: 1. Shabina Abraham and Others vs. Collector of Central Excise And Customs reported in (2015) 10 SCC 770, Para-15, 16, 17. 2. Savita Kapila vs. Assistant Commissioner of Income Tax, 2020 SCC OnLine Del 2540 3. Dharamraj vs. Income Tax Officer, 2022 SCC OnLine Del 174 4. Mr. Ratnesh Nandan Sahay, learned counsel for the Revenue submits that as per the law every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains undischarged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this Section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. 159. Legal representatives (1) Where a person dies, his legal representatives shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. (2) For the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of subsection (1),- (a) any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased; (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) all the provisions of this Act shall apply accordingly. (3) The legal representative of the deceased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the penalty order itself, it would be evident that Respondents were duly aware of the fact that the assessee has already died, and have treated the initiation of penalty proceeding against the deceased assessee as bad in law and has dropped the same. On the other hand, Respondent-Department has proceeded to pass Re-assessment Order under Section 147/148 of the Act despite being aware that the assessee has already died on 18.01.2016. 8. Thus, it appears that the very initiation of the re-assessment proceedings against the original-assessee namely, Bhim Sain Chopra @ Bhim Sen Chopra is non est and void ab initio, especially because the said assessee had already died on 18.01.2016 itself and thus, the Re-assessment order dated 10.09.2021 (Annexure-12) passed by Respondent No.4 under Section 147 of the Act against the deceased assessee Bhim Sain Chopra @ Bhim Sen Chopra is non est and illegal having been passed against a dead assessee without even substituting and/or transposing legal heirs of the said assessee in accordance with law. 9. It is true that as per the provisions of I. T. Act, 1961, for the purpose of making any assessment, any proceeding taken against the deceased be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAX, NEW DELHI Versus MARUTI SUZUKI (INDIA) LIMITED, reported in (2020) 18 SCC 331, the Hon ble Apex Court has dealt a similar issue where the original company [Suzuki Powertrain India Ltd. (SPIL)] had been amalgamated with Maruti Suzuki India Ltd. The Hon ble Apex Court has held that the notice issued to the original company as null and void. Paragraph 36 of the said judgment is quoted hereinbelow. 36. 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 coordinate Bench of two learned Judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2-11- 2017. The decision in Spice Enfotainment has been followed in the case of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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