TMI Blog2020 (5) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the AO cannot be faulted for issuing notice in the name of the deceased assessee under section 148 in the present given facts and circumstances. AO during the proceedings became aware of the fact about the death of the assessee, hence he framed the assessment in the name of legal representative but without issuing the notice under section 148 to them (legal representatives) despite having the time for doing so. However, the pertinent fact is that the legal representative never raised any question about the issuance of notice to the other legal representatives during the assessment proceedings but raised 1st time before the 1st appellate authority. Therefore, non-implication of all the legal heirs can amount to a procedural defect which will not make the assessment invalid. See JAI PRAKASH SINGH [ 1996 (3) TMI 7 - SUPREME COURT]. - No merits in the ground of appeal raised by the assessee. Hence we dismiss the same. As provisions of section 159 of the Act require to implicate all the legal heirs in the proceedings initiated under section 147 of the Act we set aside the entire assessment framed under section 147 of the Act to the AO to frame the same afresh in the nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication (iii) There were illegal occupants also, encroachments by anti-socials, one false Possession Note obtained from Makarba Panchayat, one room put up by watchman of deceased tenant, liquor sale, gamblings etc. from the property etc. (iv) The VO allowed meagre 15% deduction in aggregate for tenants, pending disputes, imperfect title etc. which reduction is not commensurate with facts and circumstances. (v) The AO furnished to the appellant valuation report (as of date of sale] dated 23-3-2016 by the VO as part of assessment order dated 30-32016 u/s 143(3) r.w.s. 147 (vi) The CIT(A) has erred, without appreciation of law and facts, in holding that report of VO is on a very sound basis. 4.1 It is submitted that in specific facts of the case, Rent capitalization method (rent receivable of appr. ₹ 142,020 per annum), is reasonable and fair method of valuation, though the VO worked out FMV by employing Land and Building method estimating land FMV at ₹ 140.13 lacs and of super structures at ₹ 135.95 lacs, total FMV ₹ 276.09 lacs which is factually incorrect, since the super-structures have been renovated / put up by respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated under section 148 of the Act for various reasons. But the AO disregarded the contentions of the assessee and framed the assessment under section 147 of the Act, in the name of legal representative namely Shri Deepak N. Dalal vide order dated 30-03-2016 determining the total income at ₹ 1,51,65,870/- only. 7. However, the assessee 1st time before the learned CIT (A) contended that the notice under section 148 of the Act, was issued in the name of the dead person. Therefore, the AO should have issued the fresh notice under section 148 of the Act in the name of the legal representatives. However, the learned CIT (A) disregarded the contention of the assessee by observing that the intimation about the death of the assessee was never communicated to the AO. As such, the AO in the absence of sufficient information, has rightly issued notice under section 148 of the Act in the name of the deceased assessee and framed the assessment in the name of legal representative. 8. Subsequently, the learned AR before us submitted as under: 2.1 The brief facts giving rise to this appeal are that the said appeal was filed by him in his representative capacity as the legal heir o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at: Where a person dies leaving more than one legal representatives, the ITO must proceed to assess the total income of the assesses by serving notice under s. 22(2) or s. 34, as the case may be, on all the legal representatives. If the notice is served on only one legal representative, there would be no complete representation of the estate or, to use the words of Salmond, of the person of the deceased . One only out of several legal representatives would not represent the whole interest of the deceased and if the whole interest of the deceased is not represented before the ITO, it is difficult to see how the ITO can proceed to assess the total income of the assessee. The assessment must on principle and authority be made on those who represent the whole interest of the assessee-his entire estate-and assessment on only one of them who partially represents the estate of the deceased, cannot be regarded as sufficient to bind the estate of the deceased (ii) Secondly, Without prejudice to the above, it is submitted that when the present appellant who was issued notice u/s 148 but he objected specifically to his being proceeded against on the ground that there was other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased. 9. On the other hand the learned DR vehemently supported the order of the authorities below. 10. We have heard the rival contentions of both the parties and perused the materials available on record filed before us. From the preceding discussion we find that admittedly the notice under section 148 of the Act, was issued in the name of the deceased assessee. Thus the notice issued under section 148 was defective which is not curable as it goes to root of the matter. Similarly the assessment framed in the name of deceased or non-existent entity is also invalid. This view has been also confirmed by the various courts including the Hon ble Apex court. 11. However, the difficulties arises before the revenue that how it comes to know before issuing a notice that, whether an assessee is existing and non-existing. What is the remedy for the Revenue if the notice is issued in the name of deceased assessee due non availability of information. In this regard Hon ble Calcutta High Court in the case of CIT vs. Shaw Wallace Distilleries Ltd reported in [2016] 70 taxmann.com 381 has held that if the legal representative does not divulge the information to the AO about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 148 of the Act dated 28.01.2015. In this connection we note that the AO was not aware about the death of the assessee at the relevant time when he issued notice under section 148 of the Act. Therefore, in our considered view the notice issued by the AO under section 148 of the Act cannot be held as invalid in view of the fact that the AO during the relevant time was unaware of such vital fact. Therefore, the AO cannot be faulted for issuing notice in the name of the deceased assessee under section 148 of the Act in the present given facts and circumstances. But the AO during the proceedings became aware of the fact about the death of the assessee, hence he framed the assessment in the name of legal representative but without issuing the notice under section 148 of the Act to them (legal representatives) despite having the time for doing so. However, the pertinent fact is that the legal representative never raised any question about the issuance of notice to the other legal representatives during the assessment proceedings but raised 1st time before the 1st appellate authority. Therefore, non-implication of all the legal heirs can amount to a procedural defect which will not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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