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आदेश/Order
Per Sanjay Garg, Judicial Member:
The present appeal has been preferred by Shri Gurtej Singh, legal heir of late Shri Avtar Singh, (deceased assessee) against the order dated 29.09.2016 of the Commissioner of Income Tax (Appeals), Panchkula [herein referred to as ‘CIT(A)’].
Apart from contesting the additions made by the lower authorities on merits, the appellant has taken a legal ground regarding the validity of the assessment framed on the ground of issuing of notice u/s 148 of the Income-tax Act, 1961 (in short 'the Act') for reopening of the assessment in the name of the dead person i.e. deceased assessee.
ITA No. 1103/Chd/2016- Sh. Gurtej Singh, Panchkula 2
None has come present on behalf of the assessee. We proceed to
decide the appeal after hearing the Ld. DR.
The facts of the case in brief are that the original assessee had died
five years ago from the date of issuing of notice u/s 148 of the Act. Even,
the notice u/s 148 of the Act was served through affixation and not in a
regular mode of service. The notice was issued in the name of the deceased
assessee. The issue, in our view, is squarely covered by the various
decisions of the Hon'ble High Courts including the latest decision of the
Hon'ble Bombay High Court in the case of ‘Sumit Balkrishna Gupta Vs.
ACIT’ in Writ petition No. 3569 of 2018 vide order dated 15.2.2019,
wherein, the Hon'ble Bombay High Court has held that the issue of a notice
under Section 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 a 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 the dead person is also not protected either by provisions of
Section 292B or 292BB of the Act. This is so as the requirement of issuing
a notice in the name of correct person is the foundational requirement to
acquire jurisdiction to reopen the assessment. The Hon'ble High Court has
further observed that Section 148 of the Act requires that before a
proceeding can be taken up for reassessment, a notice be served upon 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
ITA No. 1103/Chd/2016- Sh. Gurtej Singh, Panchkula 3
responded. That this in fact is the intent and purpose of the Act.
Therefore, Section 292B of the Act cannot be invoked to correct a
foundational / substantial error as it is meant so as to meet the
jurisdictional requirement. Therefore, both the impugned notices and the
impugned assessment order required to be quashed and set aside.
Similarly, the Hon'ble Delhi High Court in the case of ‘Rajender
Kumar Sehgal Vs. ITO’ [2019] 101 taxmann.com 233 (Delhi) held that
where the notice seeking to reopen assessment was issued in the name of
deceased assessee, since she could not have been participated in
reassessment proceedings, provisions of section 292BB were not applicable
to the assessee’s case and as a consequence, reassessment proceedings
deserved to be quashed.
At this stage, the Ld. DR has pointed out that the LR of the assessee
should have promptly come forward to apprise the Assessing officer that
the assessee had died so that notice could have been issued in the name of
legal representative of the assessee. We do not find any force in the
above contention of the Ld. DR. As noticed above, the notice was not
served through registered post / or by regular mode of service. The notice
in this case was allegedly served through substituted mode of the service
i.e. by affixation of the same at the door of the house of the assessee. Had
the Income-tax official actually gone to the house of the deceased assessee
and enquired from the villagers / family members about the whereabouts of
the assessee for the purpose of service of the notice, they could have easily
come to know about the death of the original assessee and would have
accordingly apprised the Assessing officer.
ITA No. 1103/Chd/2016- Sh. Gurtej Singh, Panchkula 4
It is not believable that the Revenue officials had visited the house of the assessee and they could not get the information about the death of the assessee despite affixation of the notice which is also required to be witnessed by some independent / respectable of the village.
In view of this, the issue is squarely covered by the decision of the Hon'ble Bombay High Court in the case of ‘Sumit Balkrishna Gupta Vs. ACIT’ (supra) and of the Hon'ble Delhi High Court in ‘Rajender Kumar Sehgal Vs. ITO’ (supra). The impugned notice issue u/s 148 of the Act, therefore, is held as ‘invalid’ and the consequent assessment proceedings, are, therefore, liable to be quashed. We order accordingly. In the result, the appeal of the appellant is hereby allowed.
Order pronounced in the Open Court on 01.03.2019
Sd/- Sd/- (अ�नपूणा� गु�ता / ANNAPURNA GUPTA) (संजय गग� / SANJAY GARG) लेखा सद�य/ Accountant Member �या�यक सद�य/ Judicial Member
Dated : 01.03.2019 “आर.के.” आदेश क� ��त�ल�प अ�े�षत/ Copy of the order forwarded to : 1. अपीलाथ�/ The Appellant 2. ��यथ�/ The Respondent 3. आयकर आयु�त/ CIT 4. आयकर आयु�त (अपील)/ The CIT(A) 5. �वभागीय ��त�न�ध, आयकर अपील�य आ�धकरण, च�डीगढ़/ DR, ITAT, CHANDIGARH 6. गाड� फाईल/ Guard File
आदेशानुसार/ By order, सहायक पंजीकार/ Assistant Registrar
ITA No. 1103/Chd/2016- Sh. Gurtej Singh, Panchkula