TMI Blog2020 (7) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... 16/ITO,W-2(2),Vsp/2019-20 dated 14.06.2019 for the Assessment Year (A.Y.)2007-08 with a delay of 3 days. The L/R of the assessee has filed a condonation petition and submitted that the delay was due to medical reasons and requested to condone the delay. After hearing both the parties, we condone the delay and admit the appeal. 2. In the instant case, the assessee has filed as many as nine grounds, however pressed ground No.2 which is related to the validity of issue of notice u/s 148 of the Income Tax Act, 1961 (in short Act ) on a dead person. Therefore, first we take up the legal ground which reads as under : 2. The Learned CIT(A) is not justified in rejecting the plea of the appellant that the notice u/s 148 was issued in the name of M.Radha Mohan Raju (Dead Person) which is not valid in law. Brief facts of the case are that the assessee was an individual government employee, deriving income from pension after retirement and expired on 13.08.2010. The Assessing Officer (AO) had the information with regard to sale of plot of land located at Sy.No.275/30, Adarshnagar, Adavivaram Village Taluk, Visakhapatnam for a consideration of ₹ 3,47,200/- to Smt. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of notice u/s 142(1) on his son instead of issuing the notice u/s 148 on all the legal heirs. Therefore, submitted that the notice issued u/s 148 is invalid, hence, requested to quash the notice issued u/s 148 and cancel the assessment proceedings. 5. On the other hand, the Ld.DR argued that the assessee is a non-filer. As per the information available on record, there is no intimation regarding the death of the assessee, therefore, submitted that the AO has rightly issued notice u/s 148 on the assessee. Subsequently, after receiving the information regarding the death of the assessee the AO issued the notice u/s 142(1) to Shri Raghurama Raju, the legal heir of the assessee, hence, argued that notice issued u/s 148 cannot be held to be invalid. The Ld.DR relied on the decision of CIT Vs. Amarchand N.Shroff 1963 AIR 1448 and submitted that the Hon ble Supreme Court held that the assessment cannot be made on a dead person, therefore, argued that since the case is squarely covered by the decision of Hon ble Supreme Court, requested to uphold the notice as well as the assessment. 6. We have heard both the parties and perused the material placed on record. In the instant cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uent 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 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. (2) For the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of sub-section (1),- (a) any proceeding taken against the deceased before his dea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 a notice issued in the name of the dead person is unenforceable in law. If such is the legal position, would the Revenue be justified in contending that they, having no knowledge about the death of the assessee, are entitled to plead that the notice is not defective. In my considered view, the answer to the question should be definitely against the Revenue. 17. This Court supports such a conclusion with the following reasons : Admittedly, the limitation period for issuance of notice for reopening expired on 31.3.2017. The impugned notice was issued on 30.3.2017 in the name of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assessee was already dead and if the Department intended to proceed under Section 147 of the Act, it could have done so prior to 31.3.2015 by issuing the notice to the legal heirs of the deceased and beyond that date, it could not have proceeded in the matter even by issuing notice to the legal representatives of the assessee. The decision in Vipin Walia fully supports the case of the petitioner herein. 22. The decision in the case of Vipin Walia was followed in the decision of the High Court of Gujarat in the case of Rasid Lala, in which, the re-assessment proceedings were initiated against the dead person, that too, after a long delay. The Court poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 from issuing a fresh notice for reassessment, if requirement of Sections 147/ 148 of the Act are satisfied, including the limitation period therein. The Ld.DR did not submit any other case law or the decision supporting the notice issued on a dead person is valid or to controvert the submissions made by the Ld.AR. Therefore, we hold that the notice u/s 148 on a dead person is invalid and accordingly quashed. Consequent assessments made u/s 144 r.w.s. 147 is annulled. Further, Hon ble High Court of Madras in Alamelu Verappan vs ITO after considering the decision of CIT Vs. Amarchand N.Shroff (supra), held that notice issued on dead person is illegal and the department cannot plead ignoran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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