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Facts
The assessee did not file a return for A.Y. 2012-13. Information revealed the sale of immovable properties, leading to reopening under Section 148. However, the Section 148 notice was issued to the assessee who had since deceased. The AO completed an ex-parte assessment under Section 144 read with Section 147, adding Long Term Capital Gain. The CIT(A) set aside the matter for fresh assessment but failed to adjudicate the specific legal ground regarding the validity of the Section 148 notice issued to a deceased person.
Held
The Income Tax Appellate Tribunal noted that the CIT(A) failed to adjudicate the crucial legal ground concerning the validity of the Section 148 notice issued to a deceased person. Consequently, the Tribunal set aside the matter to the CIT(A) with a specific direction to adjudicate this legal ground. Ground 1, which pertained to the legal validity of the notice, was allowed for statistical purposes, while other grounds raised by the assessee were dismissed.
Key Issues
Whether a notice issued under Section 148 of the Income Tax Act to a deceased person is valid, and consequently, whether the reassessment proceedings initiated based on such a notice are legally sustainable.
Sections Cited
144, 147, 148, 2(14)(iii)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, AHMEDABAD “D” BENCH, AHMEDABAD
Before: MS. SUCHITRA KAMBLE & SHRI NARENDRA PRASAD SINHA
O R D E R
PER SHRI NARENDRA PRASAD SINHA, AM:
This appeal is filed by the assessee against the order of the National Faceless Appeal Centre (NFAC), Delhi (in short “the CIT(A)”) dated 25.04.2025 for the Assessment Year (A.Y.) 2012-13 in the proceeding under Section 144 read with Section 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).
The brief facts of the case are that no return of income was filed by the assessee for the A.Y. 2012-13. From the Non-PAN data information available with the ITO, it transpired that the assessee had sold certain immovable properties during the year valued at Rs.73,08,000/- and (Assessment Year: 2012-13) Ganeshbhai Gandabhai Rabari (as LH of deceased Gandabhai P. Rabari) vs. ITO Page 2 of 5 Rs.25,38,000/-. On the basis of this information, the case was reopened by issue of notice under section 148 of the Act dated 30.03.2018. In the course of re-opened assessment proceeding, no compliance was made by the assessee. The Assessing Officer had worked out the Long Term Capital Gain (LCTG) on sale of property by adopting stamp value rate and proportionate LTCG share of the assessee being Rs.50,19,825/- was added to the income of the assessee. The assessment was completed under Section 144 read with Section 147 of the Act on 03.12.2019 at a total income of Rs.50,19,830/-.
Aggrieved with the order of the Assessing Officer, the assessee had filed an appeal before the first appellate authority which was decided by the Ld. CIT(A) vide the impugned order and the matter was set aside to the file of the Assessing Officer for fresh assessment, after allowing another opportunity of hearing to the assessee.
Aggrieved with the order of the Ld. CIT(A), the assessee is in second appeal before us. The following grounds have been taken in this appeal: -
“1. That the Ld. National Faceless Appeal Centre (NFAC), Delhi has erred in law and facts by not quashing the notice issued under section 148 of the Act as the order passed by the Ld. AO is without jurisdiction, against the law and facts of the case, in particular the notice has been issued to the deceased person and based on the legal issues and therefore the order passed by the learned AO is required to be quashed and the addition made therein should be deleted in full.
2. Without prejudice to above Ground No.1, that the learned National Faceless Appeal Centre (NFAC), Delhi has erred in law and facts by not deleting the addition of Rs.50,19,825/- and considered agriculture land as capital assets under section 2(14)(iii) of the Act for the purpose of computation of capital gain and therefore the Ld.AO is to be directed to (Assessment Year: 2012-13) Ganeshbhai Gandabhai Rabari (as LH of deceased Gandabhai P. Rabari) vs. ITO Page 3 of 5 not to treat the asset as capital asset and charge capital gain thereon and further directed to the Ld. AO to DLEETE the said addition of Rs.50,19,825/- while computing the total income.
3. That further the learned National Faceless Appeal Centre (NFAC), Delhi has erred in law and facts by not allowing the cost and indexed cost while computing the total income and accordingly the learned AO should be directed.
4. That your appellant craves a leave to add, alter OR amend any grounds at the time of hearing.”
Shri P.D. Shah, Ld. AR of the assessee submitted that the matter has been set aside by the Ld. CIT(A) to the file of the Assessing Officer, to re-examine the issue of LTCG, after allowing an opportunity to the assessee. Therefore, he didn’t press the ground nos.2 & 3 as taken by the assessee in the present appeal. As regards, ground no.-1, the Ld. AR submitted that the assessee had expired on 09.12.2015 and the notice u/s 148 of the Act dated 30.03.2018 was issued to the deceased person. He fairly considered that no intimation was given to the Department regarding death of the assessee and this fact was also not brought to the knowledge of the Assessing Officer in the course of assessment proceeding. He, however, submitted that a legal ground on reopening was taken before the Ld. CIT(A) which was not adjudicated by him. The Ld. AR, therefore, requested that the matter may be remanded to the Ld. CIT(A) with a direction to adjudicate the legal ground taken by the assessee in the first appeal.
Shri Rameshwar P. Meena, Ld. Sr. DR, had no objection if the matter was set aside to the file of the Ld. CIT(A) to decide the legal ground.
(Assessment Year: 2012-13) Ganeshbhai Gandabhai Rabari (as LH of deceased Gandabhai P. Rabari) vs. ITO Page 4 of 5 8. We have considered the request of the assessee. It is found from Form No.35 that the assessee had taken the following legal ground before the Ld. CIT(A):
“That the notice issued under Section 48 of the Act and the order passed by the ld. AO is without jurisdiction, against law and facts of the case, in particular the notice has been issued to the deceased person and the legal issues stated in the facts of the case, the said reassessment proceedings is to be quashed and the order passed by the learned AO is required to be quashed and the addition made therein should be deleted in full”
It is found that the Ld. CIT(A) did not adjudicate this legal ground raised by the assessee and he had merely set aside the matter to the file of the Assessing Officer to adjudicate the matter afresh on merits. We, therefore, deem it proper to set aside the matter to the file of the Ld. CIT(A) with a direction to adjudicate the legal ground raised by the assessee in the appeal filed before him. Accordingly, the ground no-1 taken by the assessee in the present appeal is allowed for statistical purpose. All other grounds taken by the assessee in this appeal are dismissed.
In the result, the appeal of the assessee is partly allowed for statistical purpose.
Order pronounced in the open Court on this 2nd December, 2025.