SAVITRI DEVI (L/H OF LATE RAJINDER SINGH),NEW DELHI vs. ITO WARD - 42(2), NEW DELHI

This appeal is filed by the assessee against the order dated 13.05.2019 passed by the ld. Commissioner of Income Tax (Appeals)–14, New Delhi, for assessment year 2011-12 raising the following grounds of appeal:-

That The Assessment order passed by the learned AO is bad in law, invalid and nullity due to want of jurisdiction. The Notice u/s 148 is issued on 28.03.2018, whereas the assessee, Sh Rajinder Singh died on 21.03.2014. Further Notices u/s 142(1) were also issued in the name of deceased assessee on 04.10.2018 and 12.10.2018. The notice issued u/s 143(2) or u/s 142 is addressed to an assessee who was already dead on the date of issue of notices.

Brief facts of the case shows that order Under challenged is passed on one Mr Rajindersingh u/s 14/147 of the income tax act 1961 on 9 December 2018. The proceedings were initiated on the assessee u/s 147 of the act on the basis of the information that assessee has deposited cash of ₹ 1,198,000 in his saving bank account and has not filed his return of income. Therefore notice u/s 148 was issued on 28th of March 2018. The learned assessing officer sent various reminders and letters to file the return of income but neither the return was filed on or any reply was received. Therefore the assessing officer passed an order u/s 144 of the income tax act making an addition of ₹ 1,198,000 in the hence of the assessee on 9 December 2018.

The appeal was filed by legal heir of the assessee stating that assessee has passed away on 21st of March 2014. It was stated that the notice u/s 148 was issued on 28th of March 2018 and further notices were also issued in the name of the deceased assessee. It was also stated that assessment order passed by the learned AO is bad in law. On the merits of the addition it was stated that the assessee has sold his agricultural land and deposited ₹ 1,198,000 his bank account. It was stated that notice u/s 148 of the income tax act was sent to the old address of the assessee which was lying vacant and resulting in the assessment proceedings could not be taken care of by the legal heirs. Before the learned CIT – A also notice for hearing of the appeal was issued on two occasions and none appeared and therefore he proceeded to decide the issue on the merits of the case. He held that as the assessee has failed to produce any information about the sale of the agricultural land by the deceased assessee the contention of the assessee was dismissed. Consequently the appeal of the assessee was dismissed. Therefore the legal heirs of the assessee are aggrieved and appeal is filed.

The learned departmental representative vehemently objected to the claim of the learned authorised representative stating that the assessee has never informed to the assessing officer that the assessee has passed away and therefore now the assessee cannot take this plea.

We have carefully considered the rival contention and perused the orders of the lower authorities. The fact shows that assessee has passed away on 21st of March 2014. The notice u/s 148 was issued on 28th of March 2018. Consequent assessment order is passed on 9 December 2018 in the name of a dead person i.e. deceased assessee. Despite the assessee drawing attention to the learned CIT – A and specifically mentioning in the statement of facts that the appeal before him is filed by the legal heir of the disease the assessee, even CIT appeal also passed an order in the Page | 3 name of a dead person. We find that the issue is squarely covered in favour of the assessee by the decision of the honourable Delhi High Court in savita Kapila vs ACIT [2020] 118 taxmann.com 46 (Delhi)/[2020] 273 Taxman 148 (Del) wherein it has been held that In absence of a statutory provision, a duty cannot be cast upon legal representatives to intimate factum of 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, said notice being invalid, was to be quashed. The facts in the case of the assessee are identical. In view of this, we, respectfully following the decision of the honourable Delhi High Court quash the order passed by the learned assessing officer as it has been passed on a dead person i.e. Deceased Assessee.

Accordingly appeal filed by the assessee in the capacity of legal heir for assessment year 2011 – 12 is allowed.