TMI Blog2019 (5) TMI 767X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in the case of Sumit Balkrishna Gupta. v.Assistant Commissioner of Income-tax, Circle 16(2), Mumbai [ 2019 (2) TMI 1209 - BOMBAY HIGH COURT] held that the notice issued on a dead person is invalid unenforceable in law - thus notice u/s 148 on a dead person is invalid and accordingly quashed. - Decided in favour of assessee. - I.T.A.No.227/VIZ/2017 - - - Dated:- 3-3-2019 - SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER For The Appellant : Shri C.Kameswara Rao, AR For The Respondent : Smt.Suman Malik, DR ORDER PER D.S. SUNDER SINGH, Accountant Member: This appeal is filed by the Legal Representative(LR) of the assessee against the order of the Commissioner of Income Tax (Appeals) [CIT(A)]-1, Guntur vide I.T.A.No.197/CIT(A-1)/GNT/2013-14 dated 30.12.2016 for the Assessment Year (A.Y.) 2007-08. 2. During the appeal hearing, the assessee filed additional ground vide petition dated 17.12.2018, requesting to admit the additional ground and adjudicate the same. Additional ground is related to validity of issue of notice on a dead pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal representative, Hence, the same is in accordance with the provisions of section 159. Therefore, argued that the proceedings initiated u/s 148 is valid and requested to uphold the order of the Ld.CIT(A) and dismiss the appeal of the assessee. 6. We have heard both the parties and perused the material placed on record. In the instant case, the assessee was expired on 03.11.2009, in support, death certificate is also enclosed in the paper book. Subsequent to the death of the assessee, reassessment proceedings were initiated and the notice u/s 148 was issued in the name of the dead person. In response to the notice issued by the AO, the wife of the deceased had intimated the death of the assessee. However, no effort was made by the AO to bring the legal heir on record, instead, the AO proceeded to complete the assessment in the name of the legal heir without issuing notice u/ 148. The Ld.AR relied on the provisions of section 159 of the Act. For the sake of clarity and convenience, we extract relevant part of the provisions of section 159 which reads as under : 159. (1) Where a person dies, his legal representative shall be liable to pay any sum whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce issued on a dead person is invalid and cannot be enforced. For the sake of clarity and convenience , we extract para No.14-23 which reads as under : 14. The issue, which falls for consideration, is as to whether the impugned notice under Section 148 of the Act issued in the name of the dead person - the said Mr.S.Veerappan is enforceable in law and the subsidiary issue being as to whether the petitioner, being the wife of the said Mr.S.Veerappan, can be compelled to participate in the proceedings and respond to the impugned notice. The fact that the said Mr.S.Veerappan died on 26.1.2010 is not in dispute. If this fact is not disputed, then the notice issued in the name of the dead person is unenforceable in the eye of law. 15. The Department seeks to justify their stand by contending that they were not intimated about the death of the assessee, that the legal heirs did not take any steps to cancel the PAN registration in the name of the assessee and that therefore, the Department was justified in directing the petitioner to cooperate in the proceedings pursuant to the impugned notice. 16. The settled legal principle being that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of the Act. Undoubtedly, the issue relating to limitation is not a curable defect for the Revenue to invoke Section 292B of the Act. 21. All the above reasons are fully supported by the decision in the case of Vipin Walia. In that case, the notice dated 27.3.2015 was issued under Section 148 of the Act to the assessee, who died on 14.3.2015. The validity of the said notice was put to challenge. The Income Tax Officer took a stand that since the intimation of death of the assessee on 14.3.2015 was not received by her, the notice was issued on a dead person. However, the fact regarding the death of the assessee could not be disputed by the Department. The Department continued the proceedings under Section 147/ 148 of the Act and at that stage, the son of the deceased approached the High Court of Delhi. The High Court of Delhi pointed out that what was sought to be done by the Income Tax Officer was to initiate proceedings under Section 147 of the Act against the deceased assessee for the assessment year 2008-09, for which, the limitation for issuance of notice under Section 147/148 of the Act was 31.3.2015 and on 02.7.2015 when the notice was issued, the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. This requirement of issuing notice to a correct person and not to a dead person is not a merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. Thus, a notice which has been issued in the name of the dead person is also not protected either by provisions of Section 292B or 292BB of the Act. This is so as the requirement of issuing a notice in the name of correct person is the foundational requirement to acquire jurisdiction to reopen the assessment. This is evident from Section 148 of the Act, which requires that before a proceeding can be taken up for reassessment, a notice must be served upon the assessee. The assessee on whom the notice must be sent must be a living person i.e legal heir of the deceased assessee, for the same to be responded. This in fact is the intent and purpose of the Act. Therefore, Section 292B of the Act cannot be invoked to correct a foundational / substantial error as it is meant so as to meet the jurisdictional requirement. Therefore, both the impugned notice dated 29.3.2018 and the impugned order dated 13.11.2018 are quashed and set aside. It is made clear that this order will not prohibit the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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