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2016 (2) TMI 524 - DELHI HIGH COURT

2016 (2) TMI 524 - DELHI HIGH COURT - [2016] 382 ITR 19 - Reopening of assessment - notice addressed to a dead person - Held that:- ITO took the stand that since the intimation of the death of Shri Inder Pal Singh Walia on 14th March 2015 was not received by her office “therefore the notice was not issued on a dead person”. To say the least this was a strange stand to take since the death certificate of Shri Inder Pal Singh Walia confirming the date of his death as 14th March 2015 is on record. .....

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ere was no occasion for them to refuse such notice. The postal authority had correctly noted that the person to whom the notice was addressed had indeed expired by then.

In the present case where the initial notice under Section 147/148 of the Act was issued to a dead person. The Revenue was unable to issue a notice to the LR of the deceased Assessee under Section 147/148 of the Act within the period of limitation. That would be a plain illegality and not a mere irregularity.- Decided .....

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hi to one Mr. Inder Pal Singh Walia, 128 RPS, DDA Flats, Sheikh Sarai Phase-I, Delhi seeking to reopen the assessment for Assessment Year (AY) 2008-09. 3. The above notice was returned unserved to the Department with the postal authorities endorsing on it the remarks "Addressee expired". That was a correct statement by the postal authority since indeed Mr. Inder Pal Singh Walia had expired on 14th March 2015. In other words, the notice dated 27th March 2015 had been addressed to a dead .....

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AAKPW8463F for the AY 2008-09 was issued by this office on 27th March 2015. This notice has been received back in this office with the postal remarks addresses expired. On this basis of information received from the records, the undersigned spoke to you on your mobile No. 9818200740 on 15th June 2015. Kindly find enclosed the copy of notice u/S 148 of the Income Tax Act issued on 27th March 2015 for the AY 2008-09 in the name of Sh. Inder Pal Singh Walia. You are further requested to kindly pro .....

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it was stated that he was unaware of the financial affairs or transactions carried on by his late father. 6. On 18th July 2015, the ITO took the stand that since the intimation of the death of Shri Inder Pal Singh Walia on 14th March 2015 was not received by her office therefore the notice was not issued on a dead person . To say the least this was a strange stand to take since the death certificate of Shri Inder Pal Singh Walia confirming the date of his death as 14th March 2015 is on record. W .....

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occasion for them to refuse such notice. The postal authority had correctly noted that the person to whom the notice was addressed had indeed expired by then. 8. Proceeding on the above two erroneous stands, the Department compounded its errors by insisting on continuing with the proceedings under Section 147/148 of the Act. It is at that stage that the Petitioner approached this Court. 9. While issuing notice in the petition on 28th August 2015, this Court stayed further proceedings. No counte .....

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o 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 re-computation 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 sub-section (1),- (a) any proceeding taken against the deceased before his death shall be d .....

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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 limited to the value of the asset so charged, disposed of or parted with. (5) The provisions of sub-section (2) of section 161, section 162, and section 1 .....

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le Section 159(2)(a) of the Act talks of a proceeding already taken against an Assessee before his death . Section 159(2)(b) of the Act envisages any proceeding which could have been taken against the deceased if he had survived. It permits such a proceeding to be taken against the LRs of the deceased Assessee even if it had not taken while the Assessee was alive. Section 159(2)(b) is relevant as far as the present case is concerned. 12. What was sought to be done by the ITO was to initiate proc .....

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ce to the LRs of the Assessee. 13. Learned counsel for the Revenue sought to place reliance on the decision of the Supreme Court in Commissioner of Income Tax, Shillong v. Jai Prakash Singh (1996) 3 SCC 525 in support of his contention that the ITO was justified in initiating proceeding under Section 147 of the Act even against the Petitioner who admittedly was the LR of the deceased Assessee in this case. 14. A perusal of the said judgment reveals that it is clearly distinguishable on facts. Pa .....

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