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Facts
The deceased assessee did not file a return for AY 2013-14. The AO reopened the case under Section 147 based on information of significant cash and time deposits. During the assessment proceedings, the assessee passed away, but the AO completed the assessment ex-parte under Section 147 r.w.s. 144 in the name of the deceased, treating the deposits as unexplained income. The CIT(A) dismissed the appeal.
Held
The Tribunal found that the assessment proceedings were validly initiated while the assessee was alive. Passing the assessment order in the name of the deceased, when legal heirs were aware of the proceedings, was deemed an irregularity and not an illegality or a nullity, as per Section 159 of the Act and judicial precedents. The matter is restored to the Assessing Officer to bring the legal representatives on record, provide them a proper opportunity of hearing, and reframe the assessment.
Key Issues
Whether an assessment order passed in the name of a deceased person, where reassessment proceedings commenced while the assessee was alive, is void ab initio or merely an irregularity, and if legal heirs must be brought on record for a valid assessment.
Sections Cited
147, 144, 148, 142(1), 159
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Income Tax Appellate Tribunal, AHMEDABAD “B” BENCH, AHMEDABAD
Before: SHRI SIDDHARTHA NAUTIYAL & SHRI NARENDRA PRASAD SINHA
O R D E R PER NARENDRA PRASAD SINHA, ACCOUNTANT MEMBER:
This appeal is filed by the assessee against the order of the National Faceless Appeal Centre (NFAC), Delhi (in short “the CIT(A)”) dated 02.02.2024 for the Assessment Year (A.Y.) 2013-14 in the proceedings under Section 147 r.w.s. 144 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).
There was delay of 181 days in filing of this appeal. An affidavit has been filed by Mrs. Prasanna Prabhakaran, wife of Late Sri Vasava (Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 2 of 15 Panicker Prabhakaran, explaining that she is wife of the deceased assessee and is undergoing cancer treatment. Due to her medical conditions and personal trauma, she couldn’t attend to the appellate order received in the case of her deceased husband in time, which led to this delay. Considering the explanation, the delay in filing the appeal is condoned.
The brief facts of the case are that the assessee didn’t not file his return of income for the A.Y. 2013-14. The AO had received an information that the assessee had made cash deposit of Rs.25,00,000/- and also made time deposit of Rs.45,58,052/- during the year. On the basis of this information the case of assessee was reopened under section 147 of the Act after obtaining due approval of the prescribed authority and a notice under section 148 of the Act was issued on 24.03.2020. In the course of assessment, no compliance was made by the assessee. Therefore, the AO had treated the entire cash deposit and the time deposit totalling Rs.70,92,025/- as unexplained income of the assessee. The assessment was completed under section 147 r.w.s. 144 of the Act on 20.09.2021 at total income of Rs.70,92,025/-.
4. 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 appeal of the assessee was dismissed.
Now, the assessee is in appeal before us. The following grounds have been taken by the assessee in this appeal: -
1. On the facts and circumstances of the case as well as law on the subject, the learned CIT (Appeals) has erred in passing order without discussing the grounds on merits.
2. On the facts and circumstances of the case as well as law on the subject, the learned CIT (Appeals) has erred in dismissing the appeal only on the basis of technical defects.
3. On the facts and circumstances of the case as well as law on the subject, the learned CIT (Appeals) has erred in dismissing the appeal only on the basis of technical defects without considering that deceased assessee had no taxable income and hence, he is neither liable to file the return of income nor liable to pay any advance tax.
On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-Tax (Appeals) has erred in passing order without providing enough opportunities to represent the case of the assessee.
5. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-Tax (Appeals) has erred in confirming the ex-parte re-assessment order passed by the Assessing Officer.
6. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-Tax (Appeals) has erred in confirming initiation of re-assessment proceedings u/s 148 of the Act.
7. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-Tax (Appeals) has erred in confirming addition of Rs. 25,00,000/- on account of cash deposits in the bank account.
8. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-Tax (Appeals) has erred in confirming addition of Rs.33,973/-on account of credit entries in the bank account.
9. On the facts and circumstances of the case as well as law on the subject, the leamed Commissioner of Income-Tax (Appeals) has erred in confirming addition of Rs.45,58.052/- on account of time deposits made during the year.
10. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income-Tax (Appeals) has erred in confirming the ex-parte re-assessment order passed by the Assessing Officer in the name of dead person.
(Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 4 of 15 11 It is therefore prayed that the above addition/disallowance made by the assessing officer may please be deleted. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.”
Sri Hardik Vora, the Ld. AR of the assessee submitted that the assessment order was passed in this case in the name a deceased person. He submitted that the fact the assessee had expired in the course of assessment proceeding, was brought to the knowledge of the AO, still the assessment order was passed in the name of the deceased person, which was not correct. The Ld. AR submitted that in view of various judicial precedents where in a position has been taken consistently, that no assessment can be framed in the name a deceased person, the assessment order passed in the name of deceased assessee was ab initio void. In this regard he relied upon the decision of Hon’ble Gujarat High Court in the case Krishnaawtar Kabra vs. ITO (140 taxmann.com 423) (Gujarat). Reliance was also placed on the decision of to Co-ordinate Bench of this tribunal in the case of Chandrakant A Gandhi vs. ACIT (40 tax 423) (Ahmedabad-Trib.).
6.1 On merits, the Ld. AR submitted that when the first notice was served the assessee was alive but he was not keeping good health. As a result, no compliance could be made by him. Further, the legal heirs also could not collect the details required to explain the matter before the AO. The Ld. AR submitted that the addition made an account of cash deposits as well as investment in fixed deposits were duplicate in nature and had led to double addition. He explained that the cash deposits were made out (Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 5 of 15 of earlier withdrawals and the fixed deposits were mere renewal of old deposits.
Per contra, Sri Abhijit, Ld. Sr. DR submitted that as per provision of section 159(2) of the Act, the proceeding against the deceased taken before his death shall be continued against the legal representatives from the stage at the time of death of the deceased assessee. He explained that the proceeding u/s 148 of the Act was validly initiated in this case when the assessee was alive. Therefore, the pending proceeding at the time of death of the assessee was deemed to be continued in the name of the legal heirs. Merely because the AO had passed the order in the name of deceased assessee, the assessment order cannot be held as void. In this regard he relied upon the decision of Coordinate Bench of this Tribunal in the case of Haresh Dayashankar Srivastava, in dated 24.07.2025.
We have considered the rival submissions. It will be relevant here to first encapsulate the sequence of events that had resulted in an ex- parte order in the name of the deceased assessee. The facts that emerge from the assessment order and the paper-book filed by the assessee are under:
(i) No return of income was filed by the assessee for the AY 2013-14.
(ii) The AO had received an information that the assessee had made cash deposit of ₹25,00,000/- and time deposit of ₹45,58,052/- during the year. Based on this information, the AO had reopened the case under section 147 of the Act after recording proper reason and obtaining prior approval of PCIT-3, Ahmedabad.
(Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 6 of 15 (iii) A notice under section 148 of the Act was issued on 24.03.2020 requiring the assessee to file his return of income. In response thereto, no return was filed by the assessee.
(iv) A notice under section 142(1) of the Act was issued by the AO on 30.09.2020, allowing another opportunity to the assessee to file the return of income, but once again no return was filed. However, an online response was filed on behalf of the assessee on 15 October 2020, informing that the assessee, Mr. K V Prabhakaran, was diagnosed with cancer and was on bed rest under medical treatment and, therefore, time of one month was sought for compliance in the matter.
(v) Thereafter, in response to another letter of the AO, an online submission was made on 19th February 2021, informing that the assessee had expired in the month of November 2020 and, therefore, the information as required could not be gathered. It was also informed that the death certificate will be uploaded when received.
(vi) In response to another notice under section 142(1) with due date of compliance on 5th April 2021, an online response was filed requesting for more time to gather the required information. It was informed that the time deposits were made out of closure of previous fixed deposits and that the cash deposits were out of earlier withdrawals. However, no death certificate or details of legal hairs was filed along with this reply.
(vii) Thereafter, a final show cause notice under section 142(1) dated 21st September 2021 was issued by the AO, in response to (Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 7 of 15 which an online response was filed informing that the details of time deposits were not traceable. As regards cash deposits, a copy of the bank statement was uploaded and it was explained that the cash deposit was out of amount taken from a friend. A copy of the death certificate of the assessee was also uploaded along with this response.
(viii) The assessment was getting barred by limitation on 30 September 2021 and in the absence of any proper explanation for the source of cash deposits and the time deposits, the assessment was completed under section 147 r.w.s. 144 of the Act on 29.09.2021 at total income of ₹70,92,025/-. The assessment order was passed in the name of the deceased assessee.
On the basis of the above facts, the reopening of the case u/s 147 of the Act cannot be held as ab initio void as the assessee was very much alive when the notice u/s section 148 of the Act was issued on 24.03.2020. In fact, the assessee had also received the subsequent notice u/s 142(1) of the Act dated 30.09.2020. Therefore, the assumption of jurisdiction by the AO in this case was legally valid, as the notices were served on the assessee when he was alive. The assessee had expired in the course of assessment proceeding and the AO was informed about this fact on 19th February 2021. But neither the death certificate was uploaded nor the details of legal heirs were informed to the AO. The death certificate of the assessee was uploaded only in last week of September 21, when the case was getting barred by limitation on 30 September 2021. The assessee has not brought any evidence on record to establish that the details of legal representatives of the assessee were filed before the AO. At the same time, we don’t have any evidence that the AO had enquired about (Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 8 of 15 the legal representatives after being made aware about the death of the assessee. Be that as it may, the moot question to be decided is whether the assessment order can be quashed because it was in the name of a deceased person, when the assessee had expired in the course of the assessment proceeding.
The learned AR has placed reliance on the decision of the Hon’ble Jurisdictional Gujarat High Court in the case of Krishnaawatar Kabra (supra). It is found that the facts of that case were totally different. In that case the notice under section 148 of the Act was issued on a deceased person. Therefore, the Hon’ble High Court had held that the notice u/s 148 addressed to deceased assessee was void ab initio and consequential proceedings and orders passed thereon were without any jurisdiction and were, therefore, quashed. In the present case, however, the notice u/s 148 was not issued to the deceased assessee. Therefore, the jurisdiction in the present case was validly assumed and, therefore, the ratio of that decision cannot be applied to the facts of the present case.
Reliance has also been placed by the assessee on the decision of Co-ordinate Bench of this Tribunal in the case of Chandrakant A. Gandhi (supra). In that case the penalty proceeding was initiated on a dead person and no show-cause notice for penalty was issued to the legal heir(s) of the deceased. Since the legal heirs of the deceased were not impleaded in the penalty proceedings, the penalty order passed under section 158BFA(2) of the Act on the dead person was held as null and void and quashed. Thus, the order was quashed in that case for the reason that the jurisdiction was not correctly assumed, which is not the fact in the present case. Hence, the ratio of that decision also can’t be applied here.
(Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 9 of 15 12. In the present case the jurisdiction was correctly assumed by the AO and the assessee had expired in the course of the assessment proceeding. The provision of section 159 of the Act prescribes the liability of the legal representatives as under:
Legal representatives. 159. (1) Where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. (2) For the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of sub-section (1),— (a) any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased;
(b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) all the provisions of this Act shall apply accordingly.
(3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. ……….
The proceeding under section 147 of the Act, in the present case, was initiated against the deceased before his death, and hence, clause (a) of sub-section (2) of section 159 of the Act is applicable in the facts of this case. The said clause provides that in the eventuality where a (Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 10 of 15 proceeding has already been initiated against the deceased before his death, such proceeding shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased.
As per scheme of the Act the AO gets jurisdiction under the Act for assessment upon suo moto filing of return by the assessee or by issue of notice requiring him to file the return. In the present case, the assessment proceeding for the escaped income was initiated by issue of notice under Section 148 of the Act and, therefore, the AO was vested with jurisdiction over the case. There was valid notice, as it was issued when the assessee was alive and the issuance of valid notice conferred power upon the AO to assume jurisdiction for initiation of proceedings for assessment of escapement of income. It is a cardinal proposition in law that not issuing notice at all or issuing that beyond statutory period or issue of an invalid notice under Section 148 does affect the jurisdiction of AO and would make the assessment/reassessment "null and void" because the notice under this section is not a mere procedural requirement but a condition precedent to assume jurisdiction and to make a valid assessment/reassessment. There was no such infirmity in the notice issued in the present case and, therefore, the assessment completed pursuant to such valid notice can’t be held as invalid, without jurisdiction and void ab initio.
The Hon’ble Gujarat High Court has held in the case of CIT v. Sumantbhai C. Munshaw (decd.)5 Taxman 27 (Gujarat) that a decree against a dead person is not a nullity for all purposes. According to the Hon’ble High Court the assessment order in the name of the deceased (Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 11 of 15 person, where the jurisdiction was validly assumed while the assessee was alive, would be a mere irregularity and not a nullity. To quote from the said order:
“29. The foregoing discussion shows that s. 159, which merely prescribes the method for making assessment of tax in a special case, does not bear upon the initial jurisdiction of the taxing authority but deals with matters incidental to it. If the assessing authority, in the exercise of his jurisdiction, omits to take one or more of the various procedural steps therein laid down or in taking any of such steps commits an error or even deviates from the statutory mandate, the assessment would be null and void, only if the omission, error or breach, as the case may be, is so fundamental as could not be waived because it affects inherent jurisdiction. The legal representative has a right to waive the advantage of any of the statutory provisions made solely for his protection or benefit and not conceived in public interest. Therefore, if the legal representative (which term includes plurality of persons) is present before the taxing authority in some capacity or voluntarily appears in the proceeding without service of notice or upon service of notice not addressed to him but to the deceased assessee, and does not object to the continuance of the proceeding against the deceased person and is heard by the ITO, in regard to the tax liability of the deceased and invites an assessment on merits, such a legal representative must be taken to have exercised the option of abandoning the technical plea that the proceeding has not been continued against him, although, in substance and reality, it has been so continued. If and when an assessment order is consequently made in such a proceeding in the name of the deceased assessee, even that would not be a nullity qua the legal representative, not only because he was afforded a full opportunity of being heard in respect of it but also because he having not raised an objection at the appropriate time with regard to the continuance of the assessment proceeding against the deceased person, he must be taken to have known the inevitable outcome of the assessment being made in the name of the deceased and to have opted to treat such an assessment as having been made as the legal representative against him and to waive any objection as to its nullity on the said ground. Such an exercise of option on his part is not against public policy or public morality because the waiver is of (Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 12 of 15 a statutory provision which is conceived not in public interest but in the interest of the legal representative. It is obvious, therefore, that under such circumstances, the contravention of the relevant statutory provision would be a mere irregularity may be a gross irregularity, but not a nullity.”
In the present case no objection was raised by the legal representatives in the course of hearing with regard to the continuance of the assessment proceeding against the deceased person. The legal representatives of the assessee were aware of the continuing assessment proceeding against the deceased assessee and also had made compliances before the AO after his death. The death certificate of the assessee was issued on 05/11/2020, the AO was informed about the death on 19th February, 2021 and the death certificate was uploaded before the AO only a few days before the limitation date. Further, the detail of legal heirs of the assessee was never brought on record. Considering these facts, as held by the Hon’ble Gujarat High Court in the case of Sumantbhai C. Munshaw (supra), the passing of assessment order in the name of deceased assessee was a mere irregularity and not a nullity. The Hon’ble Court had further held in that case that “if at the date of death of the deceased assessee, the assessment proceeding had commenced, it would not be necessary to start the proceeding afresh, against the legal representative, since any proceeding taken against the deceased prior to the date of his death is deemed as having been taken against the legal representative. It would be necessary, therefore, to determine who the legal representative is and take all further steps in the proceeding against him. The legal representative would have to be given full opportunity of (Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 13 of 15 being heard before an assessment is made on him in respect of the estate of the deceased.”
An identical issue was involved in the case of Smt. Hansaben Vinodbhai Parmar (Legal Heir of Late Shri Vinodbhai Motibhai Parmar) Vs ACIT/DCIT Circle, Gandhinagar (ITA No. 58/Ahd/2024 dated 12-06- 2024) decided by the Co-ordinate Bench of this Tribunal (authored by Ld. Judicial Member). It was held therein that since the assessment proceeding had commenced against the assessee at the time the assessee was alive, the proceedings cannot be brought to a nullity only because the legal heirs had failed to intimate the tax department regarding the death of the assessee. In such a case, the assessing officer can continue the proceedings against the legal heirs, in accordance with law and thereafter pass assessment order after giving due opportunity of hearing to the legal representative to present its case on merits. The matter was restored to the file of assessing officer to bring the legal heirs of the deceased assessee on record and thereafter, continue proceedings against them after giving due opportunity of hearing to the legal heirs of the assessee to present the case on merits. Reliance was placed in that case on the judgement of Hon’ble Karnataka High Court in the case of CIT v. Shri. I. Mahabaleshwarappa [IT Appeal No. 561 of 2013, dated 16-6- 2021] wherein it was held that when the assessee expired after the hearing was over and the assessment order was passed by the Assessing Officer subsequent to the death of the assessee, such assessment order was not void ab initio. The Hon’ble High Court, had set aside the matter the Assessing Officer directing him to issue notice to the legal representatives of the deceased assessee and thereafter to pass a fresh order of assessment. Reliance in this respect was also placed on the (Assessment Year: 2013-14) Prasanna Prabhakaran, L/H. of Late Vasava Panicker Prabhakaran Kavintavadakkadath vs. ITO Page 14 of 15 judgements of other Hon’ble High Courts in that case. An identical view was taken the Co-ordinate Bench of this Tribunal in the case Haresh Dayashankar Srivastava, in dated 24.07.2025, relied upon by the Ld. Sr. DR.
In view of the above facts and the judicial decisions, we are of the considered view that passing the assessment order in the present case in the name of deceased assessee, who had expired in the course of assessment proceeding, was only an irregularity and not an illegality. It was a defect which could be corrected and the assessment can’t be held as ab initio void for this reason. The non-issue of notice to legal representatives of the deceased assessee did not invalidate the assessment order and at best it was a defect which was liable to be corrected and as such it was not a case fit for cancellation of the assessment. Respectfully following the provision of the law and the above judicial precedents, we hereby restore the matter to the file of the AO with a direction to bring the legal representative of the deceased assessee on record and thereafter reframe the assessment in the name of legal heirs of the deceased assessee in accordance with law and after allowing proper opportunity of being heard to the legal representatives.
In the result, the appeal of the assessee is allowed for statistical purpose.
Order pronounced in the open Court on this 24th September, 2025.