LATA SHRI PRAKASH SHUKLA THRU L/H & SON ASHOK SHUKLA,KANPUR vs. ITO WARD-1(3)(4), KANPUR

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ITA 664/LKW/2024Status: DisposedITAT Lucknow15 October 2026AY 2013-145 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal noted that the assessee, Late Shri Prakash Shukla, expired on 19.04.2021. The primary contention raised by the assessee's counsel was that the assessment order was passed against a dead person, rendering it void ab initio. The assessee's counsel submitted that the fact of death was duly intimated to the lower authorities and that Form 35 clearly averred the assessment order to be non est due to being framed in the name of a dead person. The Ld. DR argued that the appeal before the CIT(A) required prosecution by the legal representative after bringing the death to the appellate authority's notice and seeking substitution. The Tribunal, after hearing both sides, acknowledged the death of the assessee. The judgment does not explicitly state the Tribunal's finding on each specific issue raised in the grounds of appeal, but the focus of the discussion and the subsequent order suggests a procedural defect was central. The operative part of the order is not fully provided in the excerpt, but the context implies the Tribunal will address the validity of the assessment proceedings in light of the assessee's death.

What were the facts?

The appeal was filed by the legal heir of the deceased assessee, Late Shri Prakash Shukla, against an order dated 22.10.2024 by the CIT(A)/NFAC, Delhi, for assessment year 2013-14. The assessee had filed a return of income on 31.08.2013 declaring Rs.12,45,090/-. The Assessing Officer (AO) framed an assessment under section 147 read with sections 144 and 144B of the Income Tax Act, 1961, on 26.09.2021, making an addition of Rs.1,76,29,353/- and determining total income at Rs.1,88,74,433/-. The assessee's appeal to the CIT(A) was dismissed. The assessee's legal heir has now appealed to the ITAT. The assessee's counsel highlighted that the assessment order was passed against a dead person, who expired on 19.04.2021 during assessment proceedings.

What were the issues?

1. Whether the assessment order passed in the name of a deceased person is void ab initio and liable to be quashed, as per the assessee's contention, relying on the principle that an order against a dead person is non est in law. The assessee argued that the fact of death was intimated to the lower authorities and Form 35 clearly stated the assessment order was void. 2. Whether the CIT(A) erred in upholding the assessment passed under section 147/144 of the Income-tax Act, 1961, when the assessment order was allegedly without jurisdiction and contrary to law. The assessee contended there was no material to form reasons to believe income escaped assessment, making the notice under section 148 and reassessment proceedings void ab initio. 3. Whether the reassessment proceedings were bad in law due to the absence of approval from the competent authority as per section 151 of the Act. 4. Whether the CIT(A) erred in upholding the AO's computation of capital gains, particularly regarding the cost of acquisition, indexation, and the applicability of section 50C to a leasehold property, as per the assessee's arguments. The Revenue, through the Ld. DR, argued that the appeal before the CIT(A) should have been prosecuted by the legal representative after bringing the death to the appellate authority's notice and seeking substitution. In the absence of substitution, the CIT(A) was justified in passing the order in the name of the assessee as per Form 35.

Which sections of the Income-tax Act were involved?

Section 147,Section 144,Section 144B,Section 148,Section 151,Section 50C,Section 55A

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, LUCKNOW BENCH “B”, LUCKNOW

Before: SHRI KUL BHARAT & SHRI NIKHIL CHOUDHARY

आयकर अपीलीय अधिकरण ‘बी’ न्यायपीठ, लखनऊ। IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH “B”, LUCKNOW श्री कुल भारत, उपाध्यक्ष एवं श्री ननखखल चौिरी, लेखा सदस्य के समछ BEFORE SHRI KUL BHARAT, VICE PRESIDENT AND SHRI NIKHIL CHOUDHARY, ACCOUNTANT MEMBER आयकर अपील सं/ ITA No.664/LKW/2024 ननिाारण वर्ा/ Assessment Year: 2013-14 Late Shri Prakash Shukla, v. The Income Tax Officer, Through L/h & Son Ashok Ward-1(3)(4), Shukla, Aayakar Bhawan, 16/69, 106/395, Gandhi Nagar, Civil Lines, Kanpur- Kanpur-208012. 208001. PAN:BEJPS2471D अपीलार्थी/(Appellant) प्रत्यर्थी/(Respondent) अपीलार्थी कक और से/Appellant by: Shri Rakesh Garg. Advocate प्रत्यर्थी कक और से /Respondent by: Smt Pratibha Singh, Addl. CIT- DR सुनवाई कक तारीख / Date of hearing: 28 09 2026 घोर्णा कक तारीख/ Date of 15 10 2026 pronouncement: O R D E R PER KUL BHARAT, VICE PRESIDENT.: This appeal, filed by the legal heir of the deceased assessee, is directed against the order of the Learned Commissioner of Income-tax (Appeals)/National Faceless Appeal Centre (NFAC), Delhi dated 22.10.2024 pertaining to the assessment year 2013-14. The assessee has raised the following grounds of appeal: - “01. Because the assessment having been passed on a dead person is contrary to the provisions of law, illegal be quashed. 02. Because the CIT(A) has erred on facts and in law in upholding the assessment passed under section 147/144 of the Income-tax Act, 1961, which assessment order is without jurisdiction, contrary to the provisions of law be quashed.

ITA No.664/LKW/2024 Page 2 of 5 03. Because the CIT(A) has failed to appreciate that there was no material to form reasons to believe that income has escaped assessment, the notice Issued under section 148 and the entire reassessment proceedings initiated thereafter, are all void abinitio and ought to have been quashed. 04. Because there being no approval from the competent authority as laid down in section 151 of the Act, the entire reassessment framed is bad in law and be quashed. 05. Because complete details of computation of capital gains having been furnished while filing the original return on 31.08.2013, based on the registered valuer's report, there was no reason for the AO to infer that income has escaped assessment; the entire reassessment framed under section 147 r.w.s. 144 r.w.s. 144B is contrary to the provisions of law, the CIT(A) has failed to appreciate the submissions and has arbitrarily upheld the assessment. 06. Because the computation of capital gains as done by the AO and as upheld by the CIT(A) is contrary to facts, erroneous in law, in as much as (i) The cost of acquisition as computed by the assessee has not been found fault with, in as much as, no reference under section 55A has been made. (ii) The assumption of the AO that the index cost of acquisition, as claimed by the assessee, is erroneous is without any basis. (iii) Because the property in question as transferred, being leasehold, the provisions of section 50C are not applicable, the capital gains to be computed, is to be done on the actual consideration received, accordingly, the order passed by the AO and upheld by the CIT(A) be quashed. 07. Because the CIT(A) has failed to appreciate that the cost of acquisition as worked out by the assessee including cost of improvement, all based on registered valuer's report, the AO was not justified in ignoring the same and the CIT(A) has erred in upholding the cost of acquisition as adopted by the AO, the entire exercise resulting in an addition of Rs.1,76,29,353/- on account computation of capital gains is contrary to the provisions of law be deleted.” 2. Briefly stated, the facts of the case are that the present appeal has been filed through the legal heir of the assessee, Late Shri Prakash Shukla, who expired during the course of the assessment proceedings on 19.04.2021. The assessee had filed his return of income on 31.08.2013, declaring total income at Rs.12,45,090/-. The case was taken up for scrutiny assessment. Thereafter, the assessment was framed vide order dated 26.09.2021 u/s 147 read with sections 144 and 144B of the

ITA No.664/LKW/2024 Page 3 of 5 Income Tax Act, 1961 (“Act”, for short), threby, the Assessing Officer (“AO”, for short) made an addition of Rs.1,76,29,353/- and determined the total income of the assessee at Rs.1,88,74,433/- as against the returned income as disclosed by the assessee of Rs.12,45,090/-. Aggrieved by this, an appeal before the Ld. CIT(A) was preferred who dismissed the appeal of the assessee. Aggrieved against this, the legal heir of the assessee has preferred the present appeal before this Tribunal.

3.

At the outset, the Ld. Counsel for the assessee drew our attention to the fact that the orders passed by the authorities below are in the name of a dead person. He submitted that an order so passed is void ab initio and cannot be sustained in the eyes of law. He submitted that the factum of death was duly intimated to the lower authority. He drew our attention to Form no. 35 wherein it is clearly averred that the assessment order is non est on account of the fact that the same has been framed in the name of a dead person. He further contended that the Form no. 35 has been verified by the legal heir of the assessee.

4.

On the other hand, the Ld. Departmental Representative (“Ld. DR”, for short) opposed the submissions of the assessee. He submitted that the appeal before the Ld. CIT(A) was required to be prosecuted by the legal representative of the deceased assessee after bringing the factum of death to the notice of the appellate authority and seeking substitution in accordance with law. He submitted that, in the absence of such substitution, the Ld. CIT(A) was justified in passing the order in the name of the assessee as appearing in the to Form no. 35.

5.

We have heard the Ld. Representatives at length and is perused the material. It is noted that the assessee, Late Shri

ITA No.664/LKW/2024 Page 4 of 5 Prakash Shukla, expired on 19.04.2021. A copy of the death certificate issued by the Registrar (Death Certificate), Gram Panchayat Kukradev, has been placed on record. It is further noted that the appeal before the Ld. CIT(A) was filed on 27.10.2021. Thus, by that date, the assessee had already expired. However, the impugned order passed by the Ld. CIT(A) dated 22.10.2024 has been passed in the name of the deceased assessee. As per section 159 of the Act, any proceedings taken against the deceased before his death shall be deemed to have been taken against the legal representative from the stage at which it stood on the date of the death of the deceased assessee. We are conscious of the fact that section 159 of the Act speaks about the proceedings initiated against the assessee but not by the assessee. In our considered view such cannot be the intent of the legislation where one party is deprived of its substantive legal right of appeal. Moreover, the factum of death of the assessee has been categorically brought to the notice of lower authority. We failed to understand as to why Ld. CIT(A) proceeded to pass the impugned order against the dead person when a certificate in this regard issued by the Concerned Authority (Gram Panchayat Kukradev) without verifying or bringing any adverse evidence.

In view of the above facts and circumstances, the impugned order passed by the Ld. CIT(A) in the name of the deceased assessee cannot be sustained. We, therefore, set aside the impugned order and restore the matter to the file of the AO with a direction to bring the legal heir/legal representative of Late Shri Prakash Shukla on record and thereafter make an assessment afresh in accordance with law. The grounds raised in this appeal are allowed for statistical purposes.

ITA No.664/LKW/2024 Page 5 of 5 6. In the result, the appeal of the assessee is allowed for statistical purposes.

Order pronounced in the open Court on 15/10/2026.

Sd/- Sd/- [ननखखल चौिरी] [कुल भारत] [NIKHIL CHOUDHARY] [KUL BHARAT] लेखा सदस्य/ACCOUNTANT MEMBER उपाध्यक्ष/VICE PRESIDENT DATED: 15/10/2026 Vijay Pal Singh, (Sr. PS) Copy forwarded to: 1. Appellant 2. Respondent 3. CIT VIJAY 4. DR Digitally signed by VIJAY PAL 5. Guard File PAL SINGH Date: 2026.10.15 SINGH 15:47:14 +05'30' By Order //True Copy// Sr. Private Secretary

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