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Facts
The Revenue issued reassessment notices under Section 148 of the Income Tax Act, 1961, to a deceased assessee for assessment years 2011-12 and 2012-13. The assessee's legal heir brought to the tribunal's notice that the notice was issued five years after the assessee's death.
Held
The tribunal held that a notice issued to a deceased person for reassessment is void ab initio. Relying on High Court judgments, it was decided that Section 292B of the Act cannot be invoked to correct such a fundamental error, making the notice and consequential proceedings invalid.
Key Issues
Whether a reassessment notice issued to a deceased person is valid and if Section 292B can cure such a defect.
Sections Cited
144, 147, 148, 292B, 292BB
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Income Tax Appellate Tribunal, Mumbai “G” Bench, Mumbai.
Before: Shri Rahul Chaudhary (JM) & Shri Omkareshwar Chidara (AM)
Per Omkareshwar Chidara (AM) :- For the assessment year 2011-12 and 2012-13, the Revenue raised the following grounds of appeal :- 1 . Whether on the facts and in circumstances of the case and in law Ld. CIT(A) erred in quashing the assessment order parsed under section 144 r.w.s. 147 of the Income-tax Act, 1961, on the sole ground that the notice under section 148 was issued in the name of a deceased person, despite the fact that the death of the assessee was never intimated to the Assessing Officer by any legal heir or authorised representative and the Assessing Officer had no means to ascertain such fact at the time of initiating reassessment proceedings.
1. 2. Whether on the facts, and in circumstances of the case and in law, while allowing the assessee’s appeal, Ld. CIT(A) has ignored the material fact that the legal heir never informed the department about the assessee’s death, not even after issuance of the impugned notice in the name of the assessee, nor challenged the validity of the impugned notice before the A.O.
2 Yakub Mohamed Ghantiwala Through Legal Heir of Late Yakub Mohamed Ghantiwala Bibi Yakub Mohamed Ghan
Since the issue is common and facts are similar, both the appeals are clubbed, heard and a common order is passed.
In this case, for both the years, the issue is that the legal representative raised a basic question- whether the notice on a dead person is valid and whether consequential order passed has any legal sanctity. The Ld. AR of appellant has brought it to the notice of first appellate authority that the notice of reassessment under section 148 of the I.T. Act was issued on her husband after five years of his death. The Ld. AR of appellant has submitted several cases-law for the proposition that notice on a deceased person is void ab-initio and all the consequential proceedings like making additions raising a tax demand, are invalid. The Ld. CIT(A) has taken into consideration all these decisions including the decision of Hon'ble Jurisdictional High Court and held that in such circumstances, the issue of reassessment notice is invalid and hence all consequent proceedings are also invalid.
Aggrieved by the decision of Ld. CIT(A), the Revenue filed an appeal with the grounds of appeal mentioned in page No. 1 of this order.
The Ld. DR relied on the grounds of appeal and submitted that the appellant should have intimated the Department that the appellant is no more. As there is no way to the Department to find out whether appellant is alive or not, the Ld. AO is correct in passing the assessment order under section 144 of the Act.
The Ld. AR of the appellant heavily relied on the order of Ld. CIT(A) and various cases-law.
Heard both sides and perused the detailed written submissions and several cases-law filed by the Ld. AR of the appellant. The facts are not in dispute. The appellant passed away on 12.9.2013, whereas the reassessment
3 Yakub Mohamed Ghantiwala Through Legal Heir of Late Yakub Mohamed Ghantiwala Bibi Yakub Mohamed Ghan notice was issued on appellant on 26.3.2018. In the case of Savita Kapila Vs. ACIT (118 Taxman.com 46), Hon'ble Delhi High Court has held that in the absence of a statutory provisions, a duty cannot be cast upon legal representatives to intimate factum on death of assessee to Department and, thus, where Assessing Officer issued a notice to assessee under Section 148 after his death and, in such a case, it could not have been validly served upon assessee and hence held notice being invalid, was to be quashed. Similarly, in the case of Rupa Shyamsundar Dhumatkar Vs. ACIT, Hon'ble Bombay High Court order dated 5.4.2019 held as follows :-
“2. The facts are not seriously in dispute. The petitioner had produced the death certificate of Shri Shyamsundar Dhumatkar before the Income Tax authorities, indicating that he died on 14/10/2016. Thus, the impugned notice of reopening of assessment -was issued on a dead person. There are several judgments of different High Courts holding that the notice or reopening of assessment is invalid in law. A reference in this respect can be made to a decision of Gujarat High Court in the case of Chandreshibhai Jayantibhai Patel vs ITO (Special Civil Application No. 15172 of 2018, decided on 10/12/2018). As also the decision of Madras High Court in the case of Alamelu Veerappan vs. Income Tax Officer, Noncorporate Ward 2(2), Chennai, reported in (2018) 257 Taxman 72(Madras). It is not necessary to refer to all the judgments on the point. Suffice it to say, as per the settled law, notice for reopening of assessment against a dead person is invalid.”
In the case of Sumit Balkrishna Gupta Vs. ACIT, the Hon'ble Jurisdictional Bombay High Court held that for acquiring jurisdiction to reopen an assessment, it should be issued in name of living person, i.e., legal heir of deceased person and section 292B could not be invoked to correct a fundamental/substantial error. The relevant portion is reproduced below :- 7. The issue of a notice U/s 148 of the Act is a foundation for reopening of assessment. The sine qua non for 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 a merely procedural requirement but is a condition precedent to the impugned notice being valid in law. Thus, a notice which has been issued in the name-of a dead person is also not protected either by provisions of Section 292B or 292BB of the Act. This is also the 4 Yakub Mohamed Ghantiwala Through Legal Heir of Late Yakub Mohamed Ghantiwala Bibi Yakub Mohamed Ghan
requirement of issuing a notice in the name of correct person is the foundational requirement to acquire jurisdiction to reopen the assessment. This is evident from Sec 148 of the Act, which requires that before a proceeding can be taken up for reassessment, a notice must be served on the assessee. The assessee on whom the notice must be sent must be a living person i.e. legal heir of the deceased assessee, for the same to be responded. This in fact is the intent and purpose of the Act. Therefore, Sec 292B of the Act cannot be invoked to correct a foundational substantial error as it is meant to meet the jurisdictional requirement. Therefore, both the impugned notice dated 29.03.2018 and the impugned order dated 13.11.2018 are quashed and set aside. It is made clear that this order will not prohibit Revenue from issuing afresh notice of reassessment, if requirements if Sec 147/148 of the Act are satisfied, including the limitation period therein.
In view of the above decision of jurisdictional decisions of Hon'ble High Court, the notice issued to reopen the assessment and consequential passing of assessment order on a deceased person is invalid and void ab initio.
Both the appeals of Revenue’s are Dismissed. Order pronounced in the open Court on 26/08/2025.