TMI Blog2015 (2) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... filed on 31.10.2006 through legal heir of the deceased assessee Smt. Veena Vij, appellant of this case. In the light of above facts and circumstances of the present case, we are inclined to hold that the case is squarely covered in favour of the appellant by the decision of in the case of ITO vs Sikander Lal Jain (2010 (12) TMI 623 - ITAT, Agra ) and we hold that notice u/s 148 of the Act, issued in the name of deceased assessee who had died prior to the issuance of notice and this fact was also acknowledged to the AO by way of income tax return for AY 2006-07 filed on 31.10.2006 through legal heir/wife of the deceased assessee Smt. Veena Vij, was invalid and void ab initio and all subsequent proceedings conducted in pursuance to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void-ab-initio and is liable to be quashed. 4. That assessment order lie held as void-ab-initio and be quashed. 3. We have heard arguments of both the sides and carefully perused the relevant material placed on record, inter alia brief synopsis/written arguments submitted by the assessee, assessment order, impugned order and legal propositions and citations relied by both the parties. 4. Ld. Counsel of the assessee submitted that the original return was filed on 09.09.2002 declaring an income of ₹ 53,542 by Shri Ashok Kumar Vij as an individual who died on 11.2.2006 as per death certificate available on page 3 of the Paper Book. Ld. Counsel further submitted that income tax return for AY 2006-07 was filed on 3.10.2006 thro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee and not on a person who has already expired on the date of issuance of notice and in this situation only the legal heir can be regarded to be the individual. Ld. counsel has further drawn our attention towards decision of Hon ble Jurisdictional High Court of Delhi in the case of Braham Prakash vs ITO 275 ITR 242(Del) and decision of Hon ble Allahabad High Court in the case of CIT vs Suresh Chandra Jaiswal 325 ITR 563 (All). 6. Replying to the above, ld. DR fairly accepted that the assessee Shri Ashok Kumar Vij had died on 11.2.2006 and notice u/s 148 of the Act dated 24.03.2009 was issued in the name of deceased assessee Shri Ashok Kumar Vij. Ld. DR supporting the impugned order submitted that the benefit of the ratio of the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , is void and the CIT(Appeals), in my opinion, was correct in law and in facts holding the assessment order as void. (ii) The CIT(A), in my opinion, was not correct in law in concluding that the notice u/s. 148 has not been served on proper person, as section 149 only requires the issuance of the notice within the limitation period and notice can be served on the proper persons subsequently. 46. Now, the matter shall go to the regular Bench. P.K. Bansal, Accountant Member.- 1. There being difference of opinion between both the Members constituting the Bench, the matter was referred by Hon'ble President under section 255(4) of the Income-tax Act to the Third Member for adjudication on two questions. The learned Judicial Member h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return for AY 2006-07 was filed on 31.10.2006 through legal heir of the deceased assessee Smt. Veena Vij, appellant of this case. In the light of above facts and circumstances of the present case, we are inclined to hold that the case is squarely covered in favour of the appellant by the decision of Third Member ITAT Agra Bench in the case of ITO vs Sikander Lal Jain (supra) and we hold that notice u/s 148 of the Act, issued in the name of deceased assessee who had died prior to the issuance of notice and this fact was also acknowledged to the AO by way of income tax return for AY 2006-07 filed on 31.10.2006 through legal heir/wife of the deceased assessee Smt. Veena Vij, was invalid and void ab initio and all subsequent proceedings conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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