TMI Blog2016 (10) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... father i.e. Shri Ramesh Chand Bajpai was no more, still the AO issued notice under section 142(3) and 143(2) of the Act in the name of Shri Ramesh Chand Bajpai and not to the legal heir as per section 159 of the Act. The ld. CIT(A) has rightly held that failure of the AO to issue and serve notice under section 143(2) of the Act to the legal heir in accordance with the law could not be cured under section 292B and 292BB of the Act is also correct and therefore we are not inclined to interfere in the order passed by the ld. CIT(A) and we uphold the same. - ITA No.251/LKW/2016 - - - Dated:- 30-8-2016 - SHRI. P. K. BANSAL, ACCOUNTANT MEMBER AND SHRI ABY T VARKEY, JUDICIAL MEMBER For The Appellant : Shri O. P. Meena, CIT (DR) For T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the assessment was completed assessing the total income of the assessee at ₹ 2,42,90,800/-. 4. Aggrieved, the assessee preferred an appeal before the ld. CIT(A) and raised a legal ground regarding non-issuance and service of notice under section 143(2) of the Act to the legal heir; and the ld. CIT(A) was pleased to uphold the said contention of the assessee and annulled the assessment. Aggrieved by the said order of the ld. CIT(A), the Revenue is before us. 5. We have heard both the parties and perused the record. We take note that a search operation under section 132 of the Act was carried out at the residential premises of Shri Ramesh Chand Bajpai on 6.2.2013. Thereafter, we take note that Shri Ramesh Chand Bajpai died o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the information of his death. The replies to the statutory notices were given by the legal heir, Shri Vivek Kumar Bajpai. So the undisputed fact is that notice under section 143(2) of the Act has not been issued on the legal heir of Late Shri Ramesh Chand Bajpai before completing the assessment and the assessment order has also been passed in the name of late Shri Ramesh Chand Bajpai. The ld. CIT(A) has rightly dwelled into the issue by tracing the legislative history and discussed the back-ground as to how the said provision i.e section 159 of the Act under chapter XV was enacted in the Income-tax Act, to deal with a situation when the assessee dies during the assessment proceedings and has observed as under:- 4(6) I have examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is titled Liability in Special Cases , made a provision to meet with a similar situation. Under the Act, the words legal representative have the meaning assigned to them in the Code of Civil Procedure (section 2(29) of the Act) and, accordingly, in so far as it is relevant for the purposes of the present case, they mean a person who, in law, represents the estate of a deceased person and include any person who intermeddles with the estate of the deceased. Where an assessee dies, his legal representative becomes 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 (section 159(1) of the Act). The liability of a legal representative is, howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dues from the property under the control or management of the legal representative (section 159(5) of the Act). 6. The ld. CIT(A) has correctly held as above and we agree with the same. We take note that search in the case of Shri Ramesh Chand Bajpai was conducted on 6.2.2013 as noted by the AO and so the assessment in respect to assessment year 2013-14 cannot be under section 153A of the Act. 7. As per the order of the Hon ble Supreme Court in the case of CIT Another vs. M/s Hotel Blue Moon, 321 ITR 362 (SC) before completion of the assessment under section 143(3) of the Act the assessee has to be served with notice under section 143(2) of the Act, which is mandatory and failure to do so would vitiate the entire assessment proce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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