INCOME TAX OFFICER 3(1), BHOPAL, METRO WALK BUILDING vs. RAMESH KUMAR SAHU, LEGAL HEIR OF SMT. RAMPYARI BAI, BHOPAL

आदेश / O R D E R

Per Paresh M Joshi, J.M.:

This is an appeal filed by the Revenue Under Section 253 of

the Income Tax Act, 1961 (hereinafter referred to as the “Act” for

sake of brevity) before this Tribunal. The Revenue is aggrieved

by the order bearing Number ITBA/NFAC/S/250/2023-

24/1057185611(1) dated 18.10.2023 passed by the Ld. CIT(A)

which is hereinafter referred to as the “Impugned order”. The

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 relevant Assessment Year is 2012-13 and the corresponding

previous year period is from 01.04.2011 to 31.03.2012.

2.1 That as and by way of an assessment order made u/s. 144

r.w.s. 147 of the Act, the income of the assessee Smt. Ram

Pyari Bai was assessed and computed at Rs.2,39,68,000/-. The

assessee has remained non filer originally as well as U/s 148 of

the Act.

2.2 The Department of Income Tax had information that the

assessee had sold agriculture land admeasuring 5.195 acres

having khasra No.46 situated at village Deepadi, Tehsil Huzur,

Dist. Bhopal, M.P for a sale consideration of Rs.2,39,68,000/-

without quoting PAN on registered sale deed during the

Financial Year 2011-12 corresponding to the Assessment Year

2012-2013. The assessee case was Non PAN one. No return of

income was filed for the year under consideration.

2.3 A notice u/s 147/148 of the Act was issued on 26.03.2019

and the assessee was called upon to file a return of income

within 30 days. The said notice was sent through speed post.

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 2.4 That further a notice u/s 142(1) of the IT Act along with

questionnaire was issued to the assessee on 08.11.2019 with

enclosure of notice u/s 148 dated: 26.03.2019 fixing the case

for hearing on 21.11.2019 through speed as well as duly served

through notice server. In response to this notice, Shri M.K.

Khare, CA & AR of the assessee attended the office and filed

written submission such as copy of power of attorney through

which Shri M.K. Khare was authorized by Shri Ramesh Kumar

Sahu L/h of assessee to represent the case before undersigned.

In this regard, the power of attorney was placed on record. He

submitted copy of death certificate of assessee i.e. Smt. Ram

Pyari Bai which was placed on record after perusal.

2.5 That further, Shri Ramesh Kumar Sahu, legal heir of

assessee, submitted that the notice u/s/148 dated

26.03.2019 was not received to him on or before 31.03.2019

and also stated that proceeding u/s 148 are barred by the

limitation without jurisdiction and null & void. He also submitted

that no action the entire proceedings are without jurisdiction and

unlawful and requested for drop the proceedings initiated u/s

148 of the IT Act for the year under consideration.

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 2.6 That in the context of above, it is suffice to say that the

notice u/s 148 was issued on 26.03.2019 through registered

speed post having speed post no. E1009580038IN. The said

notice was returned back unserved. Further, notice was served

personally to Shri Shailesh Sahu S/o Shri Ramesh Kumar Sahu

having Mobile No.9893941279, grandson of assessee. Further,

Shri M.K. Khare, CA, was authorized by Shri Ramesh Kumar

Sahu (legal heir of assessee) to represent the case before

undersigned. In this regard, the power of attorney was placed on

record.

2.7 That the Ld. A.O has observed that in para 5 that in so far as

the contention of the assessee that the proceedings u/s 148 are

barred by the limitation without jurisdiction and null & void is

concerned, it is suffice to say that notice u/s 148 of IT Act should

be issued before 31.03.2019 for initiating proceedings u/s 147 of

the IT Act for A.Y.2012-13 and not required to serve within the

time limit i.e. 31.03.2019. In the case of assessee, notice u/s 148

was issued well within the time for initiating proceeding u/s 147

of IT Act. In this context, the relevant part of the provision of

Income Tax Act is reproduce as under:

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 "Section 148. (1) Before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period, as may be specified in the notice, a return of his income or the income of any other person in respect of which he is assessable under this Act during the previous year corresponding to the relevant assessment year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed; and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139"

2.8 That the Ld. A.O in para 6 of the order has observed that

from the plain reading of the said provision, it is clear that for

initiating proceeding u/s 147, the only requirement is that the

notice should be issued on or before 31.03.2019. In this case, the

notice was issued on 26.03.2019 which was also confirmed from

the speed post number E1009580038IN. In view of the above

facts, the objection of the assessee that the proceeding was

barred by the limitation without jurisdiction and null & void

cannot be sustained and accordingly objection of the assessee is

disposed off.

2.9 That the assessee has also contested that the notice u/s

148 of the Act dated 26.03.2019 was not received. The

assessee statement was held to be untenable on the ground that

same was served personally to the assessee and necessary proof

is on para 7 of the aforesaid order. It was also recorded that no

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 one can authorize CA or AR through POA to represent the case

without receiving any statutory notice. In this case Shri

Ramesh Kumar Sahu L/H of the assessee Smt. Ram Pyari Bai

had authorized Shri M.K. Khare, CA to represent before the Ld.

A.O. Scanned copy of POA dated 18.11.2019 is reproduced at

para 7 of the assessment order. Basis this the Ld. A.O held that

the assessee received notice u/s 148 of the Act dated 26.03.2019.

That the contention that notice not received was rejected.

2.10 In the assessment order it is recorded vide para 8 that

notice u/s 142(1) of the Act along with query letter dated

29.11.2019 with enclosure of notice u/s 148 of the Act dated

26.03.2019 was issued to Shri Ramesh Kumar Sahu L/H of

assessee which was duly served. No compliance was made.

Thereafter show cause notice dated 13.12.2019 & 18.12.2019

were served on 16.12.2019 & 19.12.2019 respectively. No

compliance was made. The necessary proof of receipt on

16.12.2019 & 19.12.2019 are reproduced in assessment order at

para 8.

2.11 During the course of assessment proceedings, it is seen that

assessee had sold agriculture land admeasuring 5.195 acres

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 having Khasra no.46 situated at village-Deepadi, Tehsil Huzur,

Bhopal for sale consideration of Rs.2,39,68,000/-. Since

assessee has not furnished the purchase deed through which the

said lands was acquired. Therefore, the acquisition of said lands

cannot be estimated.

2.12 From the discussion made above as well as material

available on record, the capital gain arises on transfer of such

lands is calculated as under:

Full value of consideration (as per 50C of IT Act) Rs.2,39,68,000/- Date of transfer of property: 14.06.2011 Less: a. Cost of Acquisition Nil b. Indexed Cost of acquisition Nil Long Term Capital Gain Rs.2,39,68,000/-

2.13 That the aforesaid assessment order bears No.

ITBA/COM/M/17/2019-20/1023475341(1) and same is dated

29.12.2019 which is hereinafter referred to as the “impugned

assessment order”.

2.14 That the assessee being aggrieved by the aforesaid

“impugned assessment order” prefers first appeal u/s 246A of

the Act before the Ld. CIT(A) who by the “impugned order” has

allowed the 1st appeal on the grounds and reasons stated

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 therein. In para 4.10 of the “impugned order” it is held as

under:-

“4.10 In terms of discussion above it is held that the AO has erred by assuming jurisdiction to re-assess the income of the deceased person by issuing notice u/s148 in her name.”

2.15 That the Revenue being aggrieved by the “impugned order”

has preferred the instant appeal before this Tribunal and has

raised following grounds of appeal in Form No.36 against the

“impugned order” which are as under:-

“On the facts and in the circumstances of the case, the Ld. CIT (A) is not justified in holding that the AO has erred by assuming jurisdiction to re-assessee the income of the deceased person by issuing notice u/s 148 of the I.T. Act in her name without appreciating that as notice u/s 148 of the I.T. Act was issued to the assessee as per the information available with the department at that point of time." The appellant reserves his right to add, amend or alter the grounds of appeal on or before the date; the appeal is finally heard for disposal”.

3.1 The hearing in the matter took place before this Tribunal on

23.07.2025 when the Ld. DR for and on behalf of the revenue

appeared before us and the Ld. AR for and on behalf of the

assessee appeared before us and has placed on record of this

tribunal a paper book containing pages 1 to 78 together with

synopsis containing 4 pages. In addition to that a copy of the

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 judgment of Hon”ble M.P High Court dated 23.11.2023 in WP

No.9697 of 2022 in case titled Meet Lalwani L/H of Late

Mrs. Amita Lalwani V/s ITO Ward 2(1), Indore was too placed

on record.

3.2 The Ld. DR at the outset and at the threshold reiterated the

ground taken up by the revenue in appeal and stated that there

are no infirmities in the proceedings held and the Ld. CIT(A) by

passing the “impugned order” has erred in law. Finally he

stated that the “impugned assessment order” passed by the Ld.

A.O is legal and proper in the facts and the circumstances of the

case in hand and the Ld. CIT(A) ought not to have allowed the 1st

appeal of the assessee on legal ground.

3.3 Per contra Ld. AR brought to our notice that original

assessee was one Ram Pyyari Bai who had expired on

19.11.2017 and invited our attention to page 6 of paper book

wherein a photo copy of death certificate of the original assessee

is placed on record. It was urged by him that notice u/s 148 of

the Act was dated 26.03.2019 & that it was issued to Smt. Ram

Pyari Bai by ITO Ward 3(1), Bhopal and invited our attention to

page 1 of the paper book which is a photo copy of notice u/s

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 148 of the Act depicting Smt. Ram Pyari Bai as the addressee.

It was brought to our notice that it is a non PAN case and no

return of income (ROI) was filed at all. Para 2 of “impugned

assessment order” was relied upon to contend that on

21.11.2019 the Department learnt about the death of late Smt.

Ram Pyari Bai when Shri M.K.Khare, CA & A.R of the assessee

attended the office of Ld. A.O and filed a written submission such

as POA through which Shri M.K. Khare was authorized by Shri

Ramesh Kumar Sahu L/H of the assessee Ram Pyari Bai to

represent the case. Copy of death certificate was too placed on

record of Ld. A.O. It was also contended by the Ld. AR basis page

2 of paper book which is a copy of notice u/s 142(1) of the Act

dated 08.11.2019 addressed to Smt. Ram Pyari Bai that the

notice was time barred. The Ld. AR finally contended that the

foundational notice i.e. notice u/s 148 of the Act dated

26.03.2019 was issued to Smt. Ram Pyari Bai who was a dead

person as she had expired on 19.11.2017 as evidenced by

copy of death certificate. All subsequent proceedings

emanating are all bad in law and illegal. The “impugned

order” of Ld. CIT(A) is correct and proper. The Ld. AR then

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 placed reliance on the order dated 23.11.2023 of Hon’ble M.P.

High Court which is a jurisdictional High Court in case of Meet

Lalwani V/s ITO and relied upon para 10,11,12,13,14,15,16,17

of the said judgment order and contended that notice issued to a

dead person for the purpose of reopening of assessment of a dead

person is null and void and all the consequential proceedings

arising there from in the name of deceased assessee are not

sustainable. Consequently the Ld. CIT(A) has passed the correct

order. This Tribunal should therefore not disturb the “impugned

order”.

4.1 We now have to decide the legality, validity and the

proprietery of the “impugned order” basis records of the case

and rival contentions canvassed before us.

4.2 We have carefully perused the records of the case as

presented to this Tribunal by both Ld. AR & Ld. DR to determine

the legality, validity of the “impugned order” basis law and by

following due process .

4.3 We are of the considered opinion that Ld. AR has rightly

taken a legal objection with regard to the legality, validity and

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 propritery of the notice u/s 148 of the Act and so also the

entire proceedings emanating from it which goes to the root of

the matter. The Ld. AR has strongly contended that once the

original assessee Ram Pyari Bai was dead on 19.11.2017 the

revenue ought not to have issued notice u/s 148 of the Act

dated 26.03.2019 (page 1 of paper book) on the dead person as

the same is nullity in the eyes of law. We concur with the view of

Ld. AR on this as any notice u/s 148 of the Act as far as possible

should be on a person who is in the existence and is living. A

person who is dead on date of the notice cannot be said to be a

person in the existence, and/or living particularly so when the

original assessee had died much before the notice u/s 148 of the

Act. The original assessee Ram Pyari Bai had died on

19.11.2017 whereas notice u/s 148 of the Act is dated

26.03.2019 which perse is null and void.

4.4 We also notice and observe that as and by way of a letter

dated 18.11.2019 (page 5 of paper book) the factum of death of

the assessee was brought to the notice of ITO, Ward 3(1), Bhopal,

M.P and a copy of death certificate of late Ram Pyari Bai was also

placed on record with reference to notice dated 08.11.2019 (page

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 2 of paper book) u/s 142(1) of the Act. We therefore hold both

notice(s) dated 26.03.2019 (U/s 148 of the Act) & 30.10.2019

(U/s 142(1) of the Act) as nullity in the eyes of law as notice(s)

was/were on a person not in the existence/living as having died

as early as on 19.11.2017.

4.5 We also hold that by virtue of Section 159(2)(b) of the Act it

is mandated that the department may take proceedings against

Legal Heir (Ramesh Kumar Sahu) which they choose not to do so

as no notice was served u/s 148 of the Act afresh on Ramesh

Kumar Sahu the legal heir of Smt. Ram Pyari Bai. The

jurisdictional High Court of M.P in Urmila Saxena case

(supra) has clearly held that notice u/s 148 of the Act if issued

on dead person is null and void. We gainfully refer to para 14 of

the judgment (supra) wherein in para 14 it is held as under :-

“ 14. In view of the above, reopening notice under section 148 of the Act, 1961 issued in the name of a dead assessee is null and void being without jurisdiction. Recently this court in the order dated 23.11.2023 passed in WP No.9697/2022 has also held that notice and all consequential proceedings arising therefrom in the name of deceased assessee are not sustainable”.

4.6 We notice that vide para 10 below issue before M.P High

Court in Urmila Saxena case (supra) was identified as below:-

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 1961 is issued in the name of dead person 1.e. Shri Kamal Kumar Saxena is enforceable in law. The fact that Shri Kamal Kumar Saxena died on 09.11.2020 is not disputed. The notice issued in the name of the dead person is unenforceable in the eyes of law”.

4.7 We also notice that the Hon’ble M.P. High Court in the

case of Meet Lalwani Legal Heir of Late Mrs. Amita Lalwani

v/s I.T.O, Indore in writ petition No.9697 of 2022 on

23.11.2023 held in para 4, 6, 11,12,13 and 15 as under:-

“4. In view of the above, reopening notice under section 148 of the Act, 1961 issued in the name of dead assessee is null and void being without jurisdiction.

Page 14 of 17

Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 being otherwise, the provisions of Section 159 of the Act have no application.

"In the absence of a statutory provision it is difficult to cast a duty upon the legal representatives to intimate the factum of death of an assessee to the income tax department." "Consequently, the legal heirs are under no statutory obligation to intimate the death of the assessee to the revenue.

"Nothing has been placed before this Court by the Revenue to show that there is a statutory obligation on the part of the legal representatives of the deceased assessee to immediately intimate the death of the assessee to take steps to cancel the PAN registration."

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 consequential proceedings arising therefrom in the name of the deceased assessee are not sustainable”.

4.8 We also gainfully refer to Bombay High Court order dated

10.12.2024 in case of Gourang Anil Wakade (legal heir of late

Mrs. Meera Anil Wakade) V/s Principal Chief Commissioner

of Income-tax, Mumbai in writ petition No.4091 of 2024

wherein in para 6 following in held:-

“6. We find ourselves in agreement with the submissions as made on behalf of the petitioner. We may at the outset observe that the Supreme Court has held it to be the first principle of civilised jurisprudence that a person against whom any action is sought to be taken or whose right or interests are being affected should be given a reasonable opportunity to defend himself (sec: UMC Technologies Private Limited vs. Food Corporation of India & Anr., Civil Appeal No. 3687 of 2020, decided on 16 November 2020). This basic jurisprudential principle becomes applicable when any action of such nature was being initiated against Mrs. Meena Wakade. Once Mrs. Meena Anil Wakade was dead person, there was no question of her defending such action or being heard so as to accord any sanctity to such order, and the consequential notice under Section 148 of the IT Act. The entire action under clause (b) and clause (d) of Section 148A of the IT Act were of no consequence being non-est. In this situation even the legal heirs cannot be bound by such order which is non-est, void ab initio”.

4.9 We gainfully refer to ITAT Indore Bench order dated

02.07.2025 in the case of Late Vinayak Puranik V/s ITO 3(2),

Indore in ITA No.911/Ind/2024 wherein similar view is taken.

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Ramesh Kumar Sahu, L/H of Late Smt. Ram Pyari Bai ITA No.509/Ind/2023 - A.Y.2012-13 5. Order

5.1 In the premises drawn up by us we upheld the “impugned

order”.

5.2 In the result appeal of the Revenue is dismissed.

Order pronounced in open court on 28.07.2025.

Sd/- Sd/-

(B.M. BIYANI) (PARESH M JOSHI) ACCOUNTANT MEMBER JUDICIAL MEMBER

Indore िदनांक / Dated : 28/07/2025 Dev/Sr. PS

Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order COPY Senior Private Secretary Income Tax Appellate Tribunal Indore Bench, Indore

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