TMI Blog2024 (2) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... adjournment on 29.09.2017 requesting for some time to represent the matter before the Ld. AO, the Ld. AO should have given further opportunity to bring on record the legal heir of the assessee and to proceed with the matter strictly in accordance with law. The duty incumbent upon the Ld. AO is evidently failed to have been performed in its proper perspective. As the assessment order issued u/s 263 is found to have been issued in the name of the deceased assessee, it is non-est in the eye of law and, thus, liable to be quashed. See KRISHNAAWTAR KABRA L/H OF JAGANNATH RAMPAL KABRA [ 2022 (5) TMI 744 - GUJARAT HIGH COURT] - Decided in favour of assessee. - Shri Waseem Ahmed, Accountant Member And Ms. Madhumita Roy, Judicial Member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire proceeding is vitiated and, thus, liable to be quashed. It was further brought to our notice that the Ld. CIT(A) while dealing with this particular ground agitated before him observed that as the legal and jurisdiction notice was issued on alive person and during assessment proceedings, since, the assessee died, it seems that the assessment order mentioning the name of the deceased instead of legal heir is a curable mistake under Section 292BB of the Act. In rebuttal, it was submitted by the Ld. AR that the provision of Section 292BB of the Act is not applicable to the instant case in hand, in view of this particular fact that Section 292BB speaks about the service of notice and not finalization of the assessment in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of notice under Section 148 of the Act and therefore the AO was vested with jurisdiction over the case. However, issuing notice upon the deceased assessee is as good as no valid notice in eye of law resulting in irregularity, which is not curable. It would be a nullity, as it hits upon the inherent jurisdiction of AO. On a bare reading of the provision, it is evident that issuance of valid notice confers power upon the AO to assume jurisdiction for initiation of proceedings for assessment of escapement of income. It is a cardinal proposition in law that not issuing notice at all or issuing that beyond statutory period or issue of an invalid notice under Section 148 does affect the jurisdiction of AO and would make the assessment/reassess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice dated 31.03.2021 admittedly, being issued upon deceased - assessee is void ab initio and the consequential proceedings and the orders passed thereon are any without jurisdiction and are therefore, hereby quashed and set aside. The writ application succeeds to the aforesaid extent. 5. We find that the assessee before us is on a better footing. Though the notice was served upon the assessee, since deceased, the order of assessment under Section 143(3) r.w.s. 263 of the Act was issued in the name of the deceased, knowing fully well that the assessee already died on 07.06.2017 fact of which was made known to the Ld. AO by and under letter dated 29.09.2017 enclosing death certificate of the assessee. The same is also annexed to the pap ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
