TMI Blog2019 (6) TMI 1507X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income Tax (Appeals) [CIT(A)]-12 Hyderabad vide Appeal No.10243/2017-18 dated 03.01.2018 for the Assessment Year (A.Y.) 2009-10. 2. Ground Nos.1 and 8 are general in nature which does not require specific adjudication. 3. Ground No.2 and 3 are related to the validity of issue of notice u/s 148 of the Income Tax Act, 1961 (in short Act ). In the instant case, the assessee did not file the return of income, therefore, the Assessing officer(AO) has reopened the assessment u/s147 and issued the notice u/s 148 of the Act and served the notice on his wife since the assessee had expired by the time the notice was issued. In response to the notice issued, the assessee s wife filed the return of income admitting total income of ₹ 32,158/- and subsequently a notice u/s 143(2) was issued in the name of Smt. Tanguturi Mahalakshmamma, L/R of the assessee and completed the assessment u/s 143(3) r.w.s. 147 of the Act on total income of ₹ 5,15,660/- and raised the tax demand of ₹ 1,15,580/-. 4. Aggrieved by the order of the AO, the assessee went on appeal before the CIT(A) and challenged the validity of issue of notice u/s 148 in the name of dead person and frami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had expired before the issue of notice u/s 148, it is the duty of the AO to bring all the legal heir on record and issue notice for reopening the assessment in the names of all the legal heirs, but not in the name of deceased person. In the instant case, notice u/s 148 was issued on dead person, which is invalid. This view is supported by the decision of this Tribunal in the case of Sri Aemala Venkateswara Rao cited supra. For the sake of clarity and convenience we extract relevant part of the order of this Tribunal from para 6 to 7, which reads as under : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madras High Court in the case of Alamelu Veerappan Vs. ITO, Non Corporate, Ward 2(2), Chennai, Writ Petition No.30060 of 2017 and WMP No.32631 of 2017. Hon ble Madras High Court held that the notice 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstance and effect, in conformity with or according to the intent and purpose 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 31.3.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son. 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 Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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