LATE SH RAJA RAM THROUGH LEGAL HEIR VIRENDRA YADAV,GHAZIABAD vs. ITO WARD 2(2)(1), GHAZIABAD

At the time of hearing of the instant appeal the ld. Counsel appearing for the assessee submitted before us that admittedly the impugned notice under Section 148 was issued in the name of the deceased assessee, died long back and therefore, the assessment proceeding itself is vitiated and thus, liable to be quashed. On 09.04.2025 when the matter was taken up by the bench a direction was given upon the Ld. DR to obtain a report from the Ld. AO on the issue raised by the assessee on the validity of the assessment framed under Section 147 of the Act, the jurisdictional notice under Section 148 of the Act having being issued on a dead person. However, when the matter was subsequently taken up on 04.06.2025 no report has been furnished by the department. In support of the case made out by the assessee the Ld. AR relied upon the following judgments:

Having heard the Ld. Counsels appearing for the parties and having regard to the facts and circumstances of the matter, as no notice is found to have been served upon the assessee during his life time or even on the legal heir of the assessee as “deemed assessee” within the prescribed time the entire proceeding is found to have been vitiated as & 1168/Del/2024 Late Sh. Raja Ram through legal heir Virendra yadav (AY: 2010-11) the same is breach of principle of natural justice and the mandatory provisions contains in Section 148 of the Act as well. The judgment relied upon by the Ld. AR passed by the Hon’ble jurisdictional High Court in the case of Savita Kapila (supra) has duly been considered by us. We find that the court has been pleased to observe categorically that the sine quo non for acquiring jurisdiction to reopen the assessment is that such notice should be issued in the name of the correct person. The requirement of issuing of notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. The judgment passed by the Hon’ble Bombay High Court in the case of Sumit Balkrishna Gupta Vs. ACIT, Circle 16(2) Mumbai & Ors., reported in (2019) 2 TMI 1209 was also considered by the Hon’ble jurisdictional High Court in the above matter. We note, that in the case of Alamelu Veerappan Vs. ITO, reported in (2018) (6) TMI 760 wherein it has been held that in the absence of statutory mandate no responsibility could be cast upon the survivor of the assessee to intimate the fact of his/her demise to the tax department. It was held that there is no statutory requirement imposing an obligation to legal heir to intimate the death of the assessee. In order to undertake the proceeding in respect of a deceased person the legal heir needs to be identified and notices are required to be served upon such legal heirs being deemed assessee, in their names and in the capacity as legal heirs of the deceased and that particular notices are required to be served within the statutory time limit prescribed, in the absence of which the proceeding particularly when the notices for assumption of jurisdiction issued under Section 148 of the Act admittedly being issued in the name of the deceased person the entire proceeding is vitiated and thus, liable to be quashed. The requirement of issuance of notice to correct person & 1168/Del/2024 Late Sh. Raja Ram through legal heir Virendra yadav (AY: 2010-11) and not to a dead person is not merely a procedural requirement but a condition precedent to the impugned notice being valid in law.

Thus, having regard to the entire aspect of the matter, under the present facts and circumstances of the matter the notice under Section 148 of the Act having been issued admittedly in the name of the dead person, the entire proceeding is void-ab-initio and therefore, quashed. Consequently, the penalty proceeding initiated under Section 271(1)(c) also fails.

Both the appeals of the assessee are allowed.