TMI Blog2020 (7) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... med against the dead person. Accordingly the same is quashed. - ITA No. 228/JP/2019 - - - Dated:- 15-5-2020 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Dinesh Kumar Goyal (CA) For the Revenue : Shri K.C. Gupta (JCIT) ORDER PER VIJAY PAL RAO, J.M. This appeal by the assessee is directed against the order dated 27th December, 2018 of ld. CIT (A), Ajmer for the assessment year 2009-10. The assessee has raised the following grounds of appeal :- 1. On the facts and in circumstances of the case and in law the learned Commissioner of Income Tax (Appeals) erred in dismissing the following grounds of appeal without providing opportunity of hearing and without service of notice on correct address given in appeal filed as address to which notices may be sent to the appellant. a. Assessment proceedings u/s 147/148 of the Income Tax Act, 1961 are bad in law and liable to be quashed in absence of service of notice u/s 148 and in absence of making reasons of opening available to the appellant. b. The learned Assessing Officer erred in completing assessment proceedings u/s 147/144 without providing sufficient opportunity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded to pass the ex parte assessment under section 147 read with 144. The assessment was also framed in the name of the deceased assessee. Thus the ld. A/R has submitted that the notice issued against the dead person as well as the assessment framed in the name of the deceased assessee is not valid and liable to be quashed. He has made reference to the various decisions on this point and submitted that it is settled position of law that the notice issued in the name of dead person as well as the assessment framed in the name of the deceased assessee are not valid and liable to be quashed. 4. On the other hand, the ld. D/R has submitted that at the time of issuing the notice under section 148, the AO was not having any information about the death of the assessee and, therefore, he had issued the notice in the name of the assessee as there was no other option with the AO. Since there was no response to the notice issued under section 148, the AO was not aware about the death of the assessee. He has further submitted that the assessee has not raised this issue before the authorities below, therefore, in these facts and circumstances when the AO was not aware about the death of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, there was no response to the notice issued by the AO. However, the ld. CIT (A) has again dismissed the appeal of the assessee ex parte due to non appearance. The ld. A/R pointed out that since nobody from the side of the assessee was residing in India, therefore, the address of the A/R was given for the purpose of notices but the ld. CIT (A) has not issued the notice to the address given in Form No. 35. Without going into the issue of ex parte order issued by the ld. CIT (A), we note that the AO has issued the notice under section 148 in the name of the deceased assessee and, therefore, the notice issued under section 148 itself is not a valid notice. It is not a question of service of the notice but the issuance of notice under section 148 itself is invalid as the same issued and sent in the name of the deceased assessee. In case due to unawareness of death of the assessee, if the notice issued in the name of dead person is properly followed up by the AO then the AO could have issued another notice in the name of the legal representative of the deceased assessee but without taking any steps to issue a valid and legal notice under section 148 the AO has proceeded on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pated in the proceeding and then raised an objection to the validity of the proceeding and, therefore, the court held that this was a case of waiver and that a technical defect can be waived; whereas in this case, right from the inception the petitioner has objected to the validity of the notice and thereafter to the continuation of the proceeding and has at no point of time participated in the proceeding by filing the income tax return in response to the notice issued under section 148 of the Act. Had the petitioner responded to the notice by filing return of income, he could have been said to have participated in the proceedings, however, merely because the petitioner has informed the Assessing Officer about the death of the assessee and asked him to drop the proceedings, it cannot, by any stretch of imagination, be construed as the petitioner having participated in the proceedings. 17. Insofar as reliance placed upon section 292B of the Act is concerned, the said section, inter alia, provides that no notice issued in pursuance of any of the provisions of the Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The legal representative not having waived the requirement of notice under section 148 of the Act and not having submitted to the jurisdiction of the Assessing Officer pursuant to the impugned notice, the provisions of section 292B of the Act would not be attracted and hence, the notice under section 148 of the Act has to be treated as invalid. In the absence of a valid notice, the Assessing Officer has no authority to assume the jurisdiction under section 147 of the Act and, hence, continuation of the proceeding under section 147 of the Act pursuant to such invalid notice, is without authority of law. The impugned notice as well as the proceedings taken pursuant thereto, therefore, cannot be sustained. 6. On the other hand, learned advocate Shri Nikunt Raval with learned advocate Ms. Kalpana Raval reiterated what is stated in the orders dated 25.7.2018 and 8.8.2018 whereby the respondent has rejected the objections raised by the petitioner and held that notice under section 148 of the Act is validated as per the provisions of section 292B of the Act. He also referred to the relevant portion of the affidavit-in-reply to contend that the petitioner has never informed the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. The contention advanced by the learned senior standing counsel for the respondent that since Permanent Account Number of late Shri Kanubhai Nagjibhai Rajpara was active, it can be presumed that tax payer was alive, cannot be sustained in view of the fact that only because Permanent Account Number is active, petitioner or any assessee is not liable to file the return of income and on that basis it cannot be presumed that the assessee is alive, more particularly, when the department is made to know about the death of the assessee prior to issuance of the impugned notice. 10. In view of the aforesaid settled legal proposition that no valid notice can be issued against a dead person, the impugned notice is required to be quashed and set aside. 11. For the foregoing reasons, petition succeeds and is accordingly allowed. Resultantly, impugned notice dated 28.3.2018 issued by the respondent under section 148 of the Act as well as further proceedings thereto are quashed and set aside. The said decision was challenged by the revenue before the Hon ble Supreme Court, however, the SLP filed by the revenue has been dismissed by the Hon ble Supreme Court vide order dated 18th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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