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TMI Blog2020 (12) TMI 1115X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income Tax Officer, Investigation, issued a query letter in the name of deceased person Shri Subhash Chandra Agarwal raising certain queries. On 23rd January, 2015, Legal heir of Late Shri Subhash Chandra Agarwal, the wife of the assessee, namely, appellant in these appeals, Ms. Lalita Agarwal informed the Revenue about the demise of Shri Subhash Chandra Agarwal on 4th December, 2014 submitting the copy of death certificate. Such letter was duly acknowledged by the Revenue and this fact is evident from the first page of the assessment order for Assessment year 2008-09. Subsequently on 30th March, 2015, a notice under Section 148 of the Act was issued in the name of Shri Subhash Chandra Agarwal stating his Permanent Account Number for Assessment Year 2008-09. Admittedly the notice was issued on the deceased person. Subsequently on 21st March, 2016 assessment order was passed in the hands of legal heir Ms. Lalita Agarwal, wife of the deceased Shri Subhash Chandra Agarwal. On 29th of March, 2016 once again notice for Assessment Year 2009-10 was issued in the name of the deceased and on the Permanent Account Number of the deceased. On 30th March, 2016 an assessment order under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. He further stated that even otherwise the orders are not sustainable in law because the proceedings have been initiated against the deceased. The ld. AR also dealt with the issue by extracting from the site of the Department that what is the Permanent Account Number. He also dealt with the decision of the Hon'ble Delhi High Court in Savita Kapila (supra) and submitted that the case is squarely covered by that decision in favour of the assessee. 7. The ld. Departmental Representative relied upon the order of the ld. CIT (Appeals) who dealt with the challenge to the notice under Section 148 vide para Nos. 6.1 and 6.2 of the order. 8. We have carefully considered the facts stated above in these appeals wherein the notice under section 148 is issued in the name of a deceased assessee stating his PAN number. Further the assessment orders are also framed in the name of the deceased assessee stating his PAN number. The issue before us is squarely covered by the decision of Savita Kapila (supra) in 426 ITR 502 wherein it has been held that there is no legal requirement that legal representative should report death of an assessee to the Income Tax Department. Therefore, the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as "Assessing Officer") issued notices dated August 22, 2019, August 27, 2019 and September 18, 2019 to the deceased-assessee. The said notices were also neither served upon the assessee nor upon any of his legal heirs. 5. On October 10, 2019, a show-cause notice was issued to the deceased- assessee to explain why penalty under section 271(1)(b) of the Act, 1961, should not be imposed for failure to comply with notice issued under section 142(1) of the Act, 1961. 6. Pursuant to another notice issued under section 133(6) of the Act, 1961, to the banks of the deceased-assessee, it was revealed to the Income-tax Department that the same address of Dwarka was mentioned in the KYC and further from the documents made available by the banks a telephone number was traced and the phone call was made to the present petitioner, i.e., Savita Kapila who for the first time informed that she is the daughter of the assessee and that the assessee had passed away on December 21, 2018. Admittedly, for the first time the death certificate confirming the above was uploaded by the petitioner on the e-portal of the Income-tax Department on October 15, 2019. 7. The Assessing Officer passed an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urposes of the Act. In this regard, it may be noted that a notice under section 148 of the Act is a jurisdictional notice, and existence of a valid notice under section 148 is a condition precedent for exercise of jurisdiction by the Assessing Officer to assess or reassess under section 147 of the Act. The want of valid notice affects the jurisdiction of the Assessing Officer to proceed with the assessment and thus, affects the validity of the proceedings for assessment or reassessment. A notice issued under section 148 of the Act against a dead person is invalid, unless the legal representative submits to the jurisdiction of the Assessing Officer without raising any objection." Consequently, in view of the above, a reopening notice under section 148 of the Act, 1961 issued in the name of a deceased-assessee is null and void. Also, no notice under section 148 of the Act, 1961 was ever issued upon the petitioner during the period of limitation. Consequently, the proceedings against the petitioner are barred by limitation as per section 149(1)(b) of the Act, 1961. 28. Also, no notice under section 148 of the Act, 1961 was ever issued to the petitioner during the period of limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s really what the present case is all about, renders fatal the effort of the Revenue to impose the tax burden upon a legal representative". There is no statutory requirement imposing an obligation upon legal heirs to intimate the death of the assessee. 32. This court is of the view that in the absence of a statutory provision it is difficult to cast a duty upon the legal representatives to intimate the factum of death of an assessee to the Income-tax Department. After all, there may be cases where the legal representatives are estranged from the deceased- assessee or the deceased-assessee may have bequeathed his entire wealth to a charity. Consequently, whether PAN record was updated or not or whether the Department was made aware by the legal representatives or not is irrelevant. In Alamelu Veerappan (supra) it has been held "nothing has been placed before this court by the Revenue to show that there is a statutory obligation on the part of the legal representatives of the deceased-assessee to immediately intimate the death of the assessee or take steps to cancel the PAN registration". 33. The judgment in Pr. CIT v. Maruti Suzuki India Ltd. (supra) offers no assistance to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d person and non-service of notice does not come under the ambit of mistake, defect or omission. Consequently, section 292B of the Act, 1961 does not apply to the present case. 36. In Sky Light Hospitality (supra) notice was issued to Sky Light Hospitality Pvt. Ltd. instead of Sky Light Hospitality LLP. In that factual context, this court had observed, "Noticeably, the appellant having received the said notice, had filed without prejudice reply/letter dated April 11, 2017. They had objected to the notice being issued in the name of the company, which had ceased to exist. However, the reading of the said letter indicates that they had understood and were aware, that the notice was for them. It was relied and dealt with by them". The Supreme Court while dismissing the special leave petition had also observed "In the peculiar facts of this Page No : 0514 case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under section 292B of the Income tax Act". 37. In any event, section 292B of the Act, 1961 has been held to be inapplicable, vis-a-vis, notice issued to a dead person in Rajender Kumar Sehgal (supra), Chandreshbhai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be estopped from contending that she did not receive it. The plain language of Page No : 0515 section 292BB, in our opinion precludes its application, contrary to the Revenue's argument". 40. Consequently, the applicability of section 292BB of the Act, 1961 has been held to be attracted to an assessee and not to legal representatives. Conclusion 41. To conclude, the arguments advanced by the respondent are no longer res integra and have been consistently rejected by different High Courts including this jurisdictional court. In view of consistent, uniform and settled position of law, to accept the submissions of the respondent would amount to unsettling the "settled law". In fact, in Pr. CIT v. Maruti Suzuki India Limited (supra), the Supreme Court speaking through hon'ble (Dr.) Justice Dhananjaya Y. Chandrachud has succinctly observed as under (page 638 of 416 ITR) : "We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this court in relation to the respondent for the assessment year 2011-12 must, in our view be adopted in respect of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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