TMI Blog2023 (6) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... untant Member And Shri Anubhav Sharma, Judicial Member For the Assessee : Shri Somil Agarwal, Adv. And Shri Deepesh Garg, Adv. For the Department : Shri Yogesh Nair, Sr. DR ORDER PER ANUBHAV SHARMA, JM: The assessee as legal heir of late Shri Charan Singh has come in appeal against the order dated 30.04.2019 passed by the Commissioner of Income Tax (Appeals), Ghaziabad (hereinafter referred as learned First Appellate Authority or in short FAA ) in Appeal no. 92/2017-18/GZB, for the assessment year 2010- 11, arising out of the assessment order dated 20.12.2017 u/s 144 read with section 147 of the Income-tax Act, 1961 (hereinafter referred as the Act ), passed by the Income-tax Officer, Ward-1(2), Ghaziabad (hereinafter referred in short as Ld. AO ). The assessee has also filed appeal against the order dated 04.10.2019 passed by the learned CIT(Appeals), Ghaziabad arising out of penalty order dated 20.12.2017 passed by the ITO, Ward-1(2), Ghaziabad u/s 271(1)(c) of the Act. Both the appeals were heard together and are being disposed of by a common order for the sake of convenience. 2. Heard and perused the record. 3. Primarily the learned AR raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lant had claimed that notices u/s 148, 142(1) and 144 were not served upon the deceased assessee and, therefore, opportunity was sought to produce additional evidence justifying the deposits. 8. Learned AO in the remand report mentions that after getting approval from the Pr.CIT, Ghaziabad, notices were issued u/s 148 on 22.3.2017 and 30.3.2017. He mentions that later on he came to know that assessee had died on 2.12.2011, therefore, notices issued u/s 148 on 22.3.2017 and 30.3.2017 were served upon legal heir Satyaveer Singh on 8.11.2017. Further notices were issued u/s 144 on 7.9.2017 and 28,9,2017 and served upon Satyaveer Singh on 8.11.2017. 9. The Bench having considered aforesaid is of the view that learned AO had fallen in error in issuing notices on the dead person. At the time of reopening itself the learned AO was expected to be sure that reassessment proceedings could be initiated. Then learned AO has fallen in error in following strange procedure of serving the already issued notices u/s 148 dated 22.3.2017 and 30.3.2017 upon the appellant Satyaveer Singh on 8.11.2017. In any case, if Satyaveer Singh was impleaded, as observed by learned CIT(Appeals), for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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(l)(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 limitation and simply proceedings were transferred to the PAN of the petitioner, who happens to be one of the four legal heirs of the deceased assessee vide letter dated 27th December, 2019. Therefore, the assumption of jurisdiction qua the Petitioner for the relevant assessment year is beyond the period prescribed and consequently, the proceedings against the petitioner are barred by limitation in accordance with Section 149(l)(b) of the Act, 1961. 29. In Smt. Sudha Prasad (supra) the petitioner had challenged the assessment order and demand notice only. Neither non-issuance of notice was challenged nor the issue of proceedings being barred by limitation was raised or decided. Consequently, the said j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. Commissioner of Income Tax v. Maruti Suzuki India Limited (supra) offers no assistance to the respondents. In Pr. Commissioner of Income Tax v. Maruti Suzuki India Limited (supra) the Supreme Court was dealing with Section 170 of the Act, 1961 (succession to business otherwise than on death) wherein notice under Section 143(2) of the Act, 1961 was issued to non-existing company. In that case, Department by very nature of transaction was aware about the amalgamation. However, the said judgment nowhere states that there is an obligation upon the legal representative to inform the Income Tax Department about the death of the assessee or to surrender the PAN of the deceased assessee. The relevant portion of the said judgment is reproduced hereinbelow:- 35. In this case , the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealt with by them. The Supreme Court while dismissing the SLP had also observed In the peculiar facts of this 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 viz-a-viz notice issued to a dead person in Rajender Kumar Sehgal (supra), Chandreshbhai Jayantibhai Patel (supra) and Alamelu Veerappan (supra). In all the aforesaid cases, the judgment of Skylight Hospitality (supra) had been cited by the revenue. IN RAJENDER KUMAR SEHGAL (SUPRA) A COORDINATE BENCH OF THIS COURT HAS HELD THAT SECTION 292BB OF THE ACT, 1961 IS APPLICABLE TO AN ASSESSEE AND NOT TO A LEGAL REPRESENTATIVE. 38. This Court is also of the view that Section 292BB of the Act, 1961 is applicable to an assessee and not to a legal representative. Further, in the present case one of the legal heirs of the deceased assessee, i.e. the petitioner, had neither cooperated in the assessment proceedings nor filed return or waived the requirement of Section 148 of the Act, 1961 or submitted to jurisdiction of the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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