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2021 (7) TMI 191 - AT - Income TaxValidity of Re-opening of assessment u/s. 147 - assessee had expired during the pendency of assessment proceedings - violation of the procedure prescribed in law - HELD THAT:- Legislature has prescribed u/s. 159(2), that where an assessee expires during pendency of proceedings, the proceedings have to be continued with the legal heir and assessment is to be framed in the name of the legal heir. In the facts of the present case, which stand recorded by the AO also in his assessment order, the AO we find has failed to follow the statutorily prescribed procedure. That despite the AO being duly informed on 08-01-2014, that the assessee had expired on 21-07-13 and that his wife was the legal heir, he continued the assessment proceedings, issuing notice u/s. 142(1) of the Act on 18-02-2014, in the name of the deceased assessee, and further even went on to frame the assessment and issue the demand notice dated 28-02-2014, in the name of the deceased assessee. The aforestated facts stand noted in the assessment order itself and have remained uncontroverted before us. As evident therefore that the assessment framed in the present case is not in accordance with law. The reliance placed by assessee on the decision of Dhalumal Shyamumal [2004 (11) TMI 57 - MADHYA PRADESH HIGH COURT] is apt, wherein in identical set of facts where the assessee had expired during the pendency of assessment proceedings, which fact was duly intimated to the AO, who despite the same, issued no notice to the legal representatives of the assessee and framed the assessment in the name of the deceased assessee, the Hon'ble High court held that the order so passed was a nullity having been passed against a dead person. The Hon'ble High court held that it was the duty of the AO to have followed the procedure prescribed in law in such cases u/s. 159. The non compliance by the AO of the statutorily prescribed procedure, applicable in the facts of the present case, cannot be said to be a mere technical error as held by the Ld. CIT(A). - Decided in favour of assessee.
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