LATE SHRI ASHOK DUKRE,,MUMBAI vs. INCOME-TAX OFFICER,,

PER R.S.SYAL, VP :

This appeal by the assessee arises out of the order passed by the Commissioner of Income-tax (Appeals)-2, Aurangabad on 10-08-2016 in relation to the assessment year 2005-06.

2 ITA No.2237/PUN/2016 Smt. Archana Ashok Dukre

1961 (hereinafter also called `the Act’) in the name of Late Ashok

N. Dukare through L/H Archana Ashok Dukare. He completed the

assessment on 30-12-2010 determining total income at

Rs.35,01,140/-. The assessee challenged the initiation of re-

assessment proceedings before the ld. CIT(A) contending that the

notice was issued in the name of a deceased person, which was

invalid. The ld. CIT(A) rejected the assessee’s contention by

noticing in para 4 of the impugned order that there was no

illegality in the issuance of notice through Legal Heir and further

that the assessee had participated in the assessment proceedings.

That is how, the assessee approached the Tribunal.

material on record. It is obvious from the notice u/s.148 of the

Act, a copy placed at page 2 of the paper book, that the same was

issued in the name of “Late Ashok N. Dukare Through L/H

Archana Ashok Dukare”. Such a notice is dated 01-09-2009 and

was issued on the same date or thereafter. The assessee had

admittedly expired on 27-04-2005. Thus, it is evident that the

notice was issued in the name of the deceased after roughly five

years from his death. A copy of the assessment order also

indicates the same thing, namely, the assessment was made in the

3 ITA No.2237/PUN/2016 Smt. Archana Ashok Dukre

name of Late Dukre Ashokrao Narayanrao, L/H. Smt. Dukre

Archana Ashokrao. A copy of such order dated 30-12-2010 is

available in the file. Though the assessment order records 2008-09

as the assessment year, the ld. DR fairly admitted that the

assessment year was wrongly written and the correct assessment

year is 2005-06 under consideration. In view of the above facts, it

is vivid that not only the notice u/s.148 was issued in the name of

the deceased but even the assessment order was also passed in the

same name, which is illegal and cannot be cured even if the

assessee participated in the proceedings pursuant to the notice.

The Hon’ble Bombay High Court in Rupa Shyamsundar

Dhumatkar Vs. ACIT and others in writ Petition No.404 of 2009,

vide its judgment dated 05-04-2019 considered a similar situation

in which the assessee had died and the notice was issued in the

name of Late Shyam Sundar Dhumatkar with the Legal Heir as his

widow. The Hon’ble Bombay High Court declared such reopening

of the assessment as invalid in law. A copy of such judgment has

been placed on record by the ld. AR at page 51 of the paper book.

More recently, the Hon’ble Supreme Court in Pr. CIT Vs. Maruti

Suzuki India Ltd. (2019) 416 ITR 613 (SC) has dealt with a similar

situation in which notice was issued in the name of an

4 ITA No.2237/PUN/2016 Smt. Archana Ashok Dukre

amalgamating company. It was held that after amalgamation, the

amalgamating company ceased to exist and thus the notice issued

was rendered void ab-initio. Their Lordships further held that

participation in the proceedings by the assessee cannot operate as

estoppel against law. It is manifest that the facts and

circumstances of the instant case are mutatis mutandis similar to

those as considered by the Hon’ble Supreme Court and the

Hon’ble Bombay High court in the aforenoted cases. Respectfully

following precedent, it is held that the initiation of re-assessment

proceedings and the proceedings following thereafter in the name

of the deceased are void ab-initio. The assessment order is set-

aside.

against the initiation of re-assessment proceedings, there is no need

to dispose off the grounds on merits.

5 ITA No.2237/PUN/2016 Smt. Archana Ashok Dukre

आदेश क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत / Copy of the Order is forwarded to : क� क� �ितिलिप �ितिलिप अ�ेिषत अ�ेिषत आदेश आदेश आदेश अपीलाथ� / The Appellant; 1. ��यथ� / The Respondent; 2. आयकर आयु�(अपील) / 3. The CIT (Appeals)-2, Aurangabad 4. The Pr.CIT- 2, Aurangabad िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे “SMC” / 5. DR ‘SMC’, ITAT, Pune; गाड� फाईल / Guard file. 6. // True copy // आदेशानुसार आदेशानुसार/ BY ORDER, आदेशानुसार आदेशानुसार

// True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune

Date 1. Draft dictated on 14-11-2019 Sr.PS 2. Draft placed before author 14-11-2019 Sr.PS 3. Draft proposed & placed -- JM before the second member 4. Draft discussed/approved -- JM by Second Member. 5. Approved Draft comes to Sr.PS the Sr.PS/PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *