TMI Blog2023 (12) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Revenue Authorities and the Tribunal was fully justified in restoring the order of assessment in exercising power under Section 292B of the Act. But in the present case, the Assessing Officer, despite having knowledge, has not recognised the Legal Heir while passing the final order as well as the subsequent demand order/notice and notices relied to imposing of penalty. From the perusal of records, it can be seen that the AO has passed the Assessment Order in the name of deceased person which is non-existent person and when the order passed on the non-existent person despite represented by the Legal Heir, the same cannot be curable under Section 292B. AO has consciously chose the name of the deceased assessee. In the eyes of law, if the assessee is deceased and Assessing Officer is very well aware about the same, then order has to be passed in the name of the Legal Heir of the deceased assessee. But the AO chose otherwise and, therefore, this defect is not curable as later on notices for demand as well as for imposing of penalty was issued in the name of the deceased assessee and thus the Assessment Order itself becomes void-ab-initio. CIT(A) has taken proper cognisanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case may be decided on merit. 3. The assessee i.e. Kirankumar Lalji Sorathiya filed his return of income on 27.08.2018 declaring total income at Rs. 2,55,810/-. The case of the assessee i.e. Kirankumar Lalji Sorathiya was selected for scrutiny through CASS for complete scrutiny and notice under Section 143(2) of the Income Tax Act, 1961 was issued on 23.09.2019 which was served to the assessee. During the assessment proceedings, prior to notice under Section 142(1) of the Act dated 16.03.2021, the assessee i.e. Kirankumar Lalji Sorathiya died on 12.10.2020. The assessee s Legal Heir Smt. Kanchan Kiran Sorathiya filed submissions during the assessment proceedings and show cause notice dated 06.04.2021 proposing addition of Rs. 12,44,42,825/- was issued and served upon the assessee. The deceased assessee was given notice upto 09.04.2021 to file his details and explanations. The Assessing Officer held that since the assessee did not file reply against show cause notice and no explanation was offered, therefore, addition of Rs. 12,44,42,825/- was made under Section 69B of the Act. 4. Being aggrieved by the Assessment Order, the Legal Heir of the assessee filed appeal before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Order fact of death of the original assessee and bringing on record the Legal Heir, issue of notice to her and taking proceedings in her presence were noticed/noted. The Ld. AR further submitted that in the present assessee s case on the very beginning of the Assessment Order, the date of hearing mentioned is 25.10.2019 i.e. before the death of the assessee on 12.10.2020. Hence, from the face or the Assessment Order it is clear that no hearing was granted to the Legal Heir of the deceased assessee. The Ld. AR further pointed out that Assessment Order mentioned at page no.12 that it is requested to register as Leal Heir of the deceased assessee on Income Tax India e-filing portal for effectively attending the Income Tax related affairs of the deceased assessee. Hence, nowhere in the Assessment Order it is mentioned that assessment proceedings were completed on the Legal Heir of the deceased assessee. The Assessing Officer issued show cause notice dated 06.04.2021 on 07.04.2021 asking for submission on 09.04.2021. In April 2021, 2nd wave of COVID-19 were going on. The Ld. AR further submitted that had the Assessing Officer intended to complete assessment proceedings with the Legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f recovery of demand as well as show cause notice for penalty. The Assessing Officer has recognised Legal Heir only after CIT(A) has given order against the Revenue. The Ld. AR further submitted that the following decisions wherein assessment order in the name of deceased person/non-existent person is held to be invalid and non-curable under Section 292B of the Act. 1) PCIT vs. Maruti Suzuki India Limited, 107 Taxmann.com 375 2) Spice Infotainment Limited vs. CIT (2012) 247 CTR (Delhi HC) 500 3) T. Pilani S-463-HC-2019 (Madras) 4) Dimension Apparels Pvt. Ltd. TS-610-HC-2014 (Delhi) 5) Norton Motors TS-10-HC-2004 (P H) 7. We have heard both the parties and perused all the relevant material available on record. It is to note that the Ld. DR submitted that mentioning of the deceased assessee in the Assessment Order can be rectified under Section 292B and, therefore, the assessment is a valid assessment, but from the perusal of the records, it is seen that the Assessing Officer despite having knowledge of the deceased assessee, except mentioning in the show cause notice, the name of the Legal Heir has not incorporated the deceased assessee either in the Assessment Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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