LATE SHRI RAJESH KUMAR GUPTA THROUGH HIS WIFE,DELHI vs. ITO WARD 48(2), DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI “E” BENCH: NEW DELHI BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT & SHRI KRINWANT SAHAY, ACCOUNTANT MEMBER

ITA No.5834/Del/2026 [Assessment Year : 2012-13] Late Shri Rajesh Kumar vs ITO, WARD 48(2), NEW Gupta through L/H Sunita DELHI Gupta, JAO: ITO, WARD 46(4), UP-21, First Floor, NEW DELHI Maurya Enclave, Pitampura, Delhi – 110034 PAN: AAGPG3246A APPELLANT RESPONDENT Appellant by Shri Akash Ojha, Adv. Respondent by Shri Tarun Sharda, Sr. DR. Date of Hearing 13.08.2026 Date of Pronouncement 19.08.2026 ORDER PER MAHAVIR SINGH, VP : The captioned appeal has been filed at the instance of the legal heir and wife (Smt. Sunita Gupta) of the deceased-assessee (Rajesh Kumar Gupta) against the order of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, (NFAC) Delhi (‘CIT(A)’ in short) dated 24.3.2026 in appeal No. CIT(A), Delhi – 16/10003/2020-21 arising from the assessment order passed by the Assessing Officer dated 30.12.2019 under Section 147 r.w.s. 144 of the Income Tax Act (‘the Act’ in short) for AY 2012-13.

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the assessee has stated the facts that Sh. Rajesh Kumar Gupta (now deceased) was expired on 05.03.2014 and notice u/s. 148 of the Act was issued by the ITO, Ward 47(1), New Delhi on 30.3.2019 (copy of the notice u/s. 148 is enclosed at APB Page no. 4). Ld. Counsel for the assessee before us, stated that the notice u/s. 148 was issued on dead person on 30.3.2019 whereas the information with the department was available that the assessee has been expired, which is clear from the assessment order passed by the Assessing Officer for the assessment year 2013-14 dated 29.3.2016 wherein, it is clearly mentioned that the assessment was framed on late Sh. Rajesh Kumar Gupta through his legal heir Smt. Sunita Gupta (wife of the assessee) (copy of assessment order is enclosed at APB Page 2-3).

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namely, Rajesh Kumar Gupta died on 05.03.2014. Smt. Sunita Gupta, the wife of the assessee is the valid legal heir of the deceased-assessee. AO in the name of the deceased assessee and the jurisdiction to assess the income of the deceased assessee u/s 147 was assumed. Under the circumstances, where the assessee has died prior to issue of notice u/s 148 and necessary steps were taken on behalf of the legal heir of the assessee and the Department was made aware of the death of the assesse, thus the issuance of notice u/s 148 and consequent assessment in the name of the dead person is void ab initio and devoid of legal sanction.

“8. The issue of validity of a notice and proceedings held subsequent thereto against a dead person is no longer res integra. This Court in Savita Kapila vs. Assistant Commissioner of Income-Tax, in W.P. (C) No.3258/2020 has held as under: "AN ALTERNATIVE STATUTORY REMEDY DOES NOT OPERATE AS A BAR TO MAINTAINABILITY OF A WRIT PETITION WHERE THE ORDER OR NOTICE OR PROCEEDINGS ARE WHOLLY WITHOUT JURISDICTION. IF THE ASSESSING OFFICER HAD NO JURISDICTION TO INITIATE ASSESSMENT PROCEEDINGS. THE MERE FACT THAT SUBSEQUENT ORDERS HAVE BEEN PASSED WOULD NOT RENDER THE CHALLENGE TO JURISDICTION INFR UCTUOUS. 24. Further, the f act that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice f or assessment if it is Page | 3

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without jurisdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequent would have no legs to stand. If the notice goes, so does the order of assessment. It is trite law that if the Assessing Officer had no jurisdiction to initiate assessment proceeding, the mere fact that subsequent orders have been passed would not render the challenge to jurisdiction infructuous. xxxxx THE SINE QUA NON FOR ACQUIRING JURISDICTION TO REOPEN AN ASSESSMENT IS THAT NOTICE UNDER SECTION 148 SHOULD BE ISSUED TO A CORRECT PERSON AND NOT TO A DEAD PERSON. CONSEQUENTLY. THE JURISDICTIONAL REQUIREMENT UNDER SECTION 148 OF THE ACT. 1961 OF SERVICE OF NOTICE WAS NOT FULFILLED IN THE PRESENT INSTANCE. xxxxx 26. In the opinion of this Court the issuance of a notice under Section 148 of the Act is the f oundation for reopening of an assessment. Consequently, the sine qua non f or acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing 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. [See Sumit Balkrishna Gupta v. Asst Commissioner of Income Tax, Circle 16(2), Mumbai & Ors., (2019) 2 TMI1209- Bombay High Court],

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deceased assessee may have bequeathed his entire wealth to a charity. Consequently, whether PAN record was updated or not or whether the Department was made aware by the legal representatives or not is irrelevant. In Alamelu Veerappan (supra) [2018 (6) TMI 760 - Madras High Court] 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. ” xxxxx 34. Consequently, the legal heirs are under no statutory obligation to intimate the death of the assessee to the Revenue. SECTION 292B OF THE ACT. 1961 HAS BEEN HELD TO BE INAPPLICABLE. VIS-A- VIS. NOTICE ISSUED TO A DEAD PERSON IN RAJENDER KUMAR SEHGAL 12018 (12) TMI 697 (DELHI)]. CHANDRESHBHAI JAYANTIBHAIPATEL 12019 (I) TMI353 - GUJARAT HIGH COURT1 AND ALAMELU VEERAPPAN f2018 (6) TMI 760 - MADRAS HIGH COURT1. 35. This Court is of the opinion that issuance of notice upon a dead person and non-service of notice does not come under the ambit of mistake, defect or omission. Consequently, Section 292B of the Act, 1961 does not apply to the present case. IN RAJINDER 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. xxxxx 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 Officer. She had merely uploaded the death certif icate of the deceased assessee. Xxxxxx 40. Consequently, the applicability of Section 292BB of the Act, 1961 has been held to be attracted to an assessee and not to legal representatives. ” 9. The above judgment was followed by this Court in W.P.(C) No.2678/2020 titled Mrs. Sripathi Subbaraya Manohara L/H Late Sripathi Subbaraya Gupta vs. Principal Commissioner of Income Tax 22, N.Delhi & Anr. 10. In the present case also, as the notice under Section 148 of the Act was issued against a dead person, the same is null and void and all consequent proceedings/orders, including the assessment order and the subsequent notices, being equally tainted, are liable to be set aside.

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Sd/- Sd/- (KRINWANT SAHAY) (MAHAVIR SINGH) ACCOUNTANT MEMBER VICE PRESIDENT SRBhatnagar Date: 19-08-2026 Copy forwarded to: - 1. Appellant 2. Respondent 3. DIT 4. CIT (A) 5. DR, ITAT TRUE COPY By Order, Assistant Registrar, ITAT, Delhi Bench