TaxTMI 
TaxTMI 
2023 (12) TMI 700
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....n of the legal representatives as prayed for in the present appeal does not arise. Learned counsel submitted that the proposed legal representatives have right to contest the application seeking substitution inasmuch as, the substitution prayed for can be allowed only if they represent the estate of the deceased and therefore, while setting aside the order under appeal, the matter may be remanded to the ITAT. 4. Learned counsel for the appellant has no objection if the order under appeal is set aside and the matter is remanded to the ITAT. 5. Indisputably, the order passed in favour of or against the dead person is nullity. It is not disputed before this Court that the respondent had expired prior to institution of the present appeal and therefore, the question of substitution of the legal representatives of the deceased respondent in the present appeal does not arise. Obviously, the proposed legal representatives has right to contest the application seeking substitution, if any prayed for. 6. In this view of the matter, it would be appropriate to set aside the order under appeal and remand the matter back to the ITAT to pass order afresh in accordance with law. 7. Accordin....
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....is reiterated here in below:- "5. We have heard the rival submissions and perused the material available on record. The facts in this case are undisputed that the assessee Smt. Sita Badoliya along with Smt. Sanjana was declared the legal heir of late Shri Jethmal Binwara by virtue of a Court order dated 312.07.2009. It is also undisputed that the Assessing Officer, on receipt of information regarding sale of agricultural land by late Shri Jethmal Binwara, initiated reassessment proceedings against Smt. Sita Badoliya only and not to the other legal heir. 5.1 The Ld. Commissioner of Income Tax (A) has also elaborated on the entire factual matrix of the case in Para 6 of his order and has, thereafter, duly noted that the department was well aware about the names and existence of all the legal heirs/legal representatives of the deceased. Thereafter, the Ld. Commissioner of Income Tax (A) has held that it was incumbent upon the Assessing Officer to bring all the legal heirs on record and provide them with an opportunity of being heard. The Ld. Commissioner of Income Tax (A), while quashing the assessment u/s 148, has also placed reliance on the order of the ITAT Jodhpur Bench in the....
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.... if not served to all the legal heirs of the deceased assessee, will be a defect which is not curable and, therefore, the reassessment will be null and void. Respectfully following the ratio as laid down by the ITAT, Jodhpur Bench, we approve of the action of the Ld. CIT (A) and dismiss the grounds raised by the department. 6. In the result, the appeal of the department stands dismissed." 4. Aggrieved from the order of the Coordinate Bench, the Revenue preferred an appeal before the Hon'ble Jurisdictional High Court wherein the Hon'ble High Court passed the order as under : 5. Indisputably, the order passed in favour of or against the dead person is nullity. It is not disputed before this Court that the respondent had expired prior to institution of the present appeal and therefore, the question of substitution of the legal representatives of the deceased respondent in the present appeal does not arise. Obviously, the proposed legal representatives has right to contest the application seeking substitution, if any prayed for. 6. In this view of the matter, it would be appropriate to set aside the order under appeal and remand the matter back to the ITAT to pass order afresh i....
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....sp; Daughter 2. We shall be gratefull if Hon'ble Bench, bringing "Shri Nemi Chand" as legal heir of late Smt. Sita on record and for which no objection by other legal representative of decease. 3. The documentary evidences of legal representative of late Smt Sita are enclosed herewith. Yours faithfully (Prakash Chand) (Nemi Chand) (Smt. Manju W/o Late Rajendra Kumar) (Smt. Mangala w/o Late Prem Chand) (Smt. Santosh) (Smt. Leela)" 6. Per contra, the ld. DR was heard and was confronted to the following finding of the ld. CIT(A) "7. Even on merits also, I find that the AO failed to bring on record any evidence whatsoever which could even remotely suggest that the appellant had some benefit on account of transaction entered by late Sh. Jethmal Binawara, It is fact that as per court's order dated 31-07-2009, the appellant and her sister Smt. Sanjana only received Rs. 21,355/- which was equally divided between both of them. Nothing substantial has been received by the appellant from the prope....
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....inawara. Entire assessment has been framed in a very casual manner without establishing that the assessee being legal heir / legal representative was only beneficiary. As per law, the AO cannot taxed notional income without establishing that the same actually pertained to the assessee. 7.1 Revenue carried the matter before the Income Tax Appellate Tribunal and the coordinate bench has taken a detailed finding about the issue of notice u/s 148 of the Act. The relevant findings of the Coordinate Bench in the order dated 19.03.2018 is as under:- "5. We have heard the rival submissions and perused the material available on record. The facts in this case are undisputed that the assessee Smt. Sita Badoliya along with Smt. Sanjana was declared the legal heir of late Shri Jethmal Binwara by virtue of a Court order dated 31.07.2009. It is also undisputed that the Assessing Officer, on receipt of information regarding sale of agricultural landby late Shri Jethmal Binwara, initiated reassessment proceedings against Smt. Sita Badoliya only and not to the other legal heir. 5.1 The Ld. Commissioner of Income Tax (A) has also elaborated on the entire factual matrix of the case in Para 6 of h....
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....ng of return u/s 143(3) simpliciter and the one processed u/s 148 of the Act after assuming jurisdiction to initiate reassessment proceedings are totally different. The Coordinate Bench further observed that the assumption of jurisdiction is a very important step under the Act, which is based on certain happenings whereas the proceedings u/s 142(1)/142(2) are quite procedural and ordinary. The proceedings under section 147/148 affect the rights of the assessee. The Bench went on to conclude that notice u/s 148, if not served to all the legal heirs of the deceased assessee, will be a defect which is not curable and, therefore, the reassessment will be null and void. Respectfully following the ratio as laid down by the ITAT, Jodhpur Bench, we approve of the action of the Ld. CIT (A) and dismiss the grounds raised by the department. 6. In the result, the appeal of the department stands dismissed." Since the issue of notice u/s 148 of the Act is already decided by the ld. CIT(A) by holding that the AO failed to bring on record any evidence whatsoever, which could even remotely suggest that late Smt. Sita has some benefit on account of transaction entered by late Shri Jethmal Binawar....