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Income Tax Appellate Tribunal, ‘’ SMC” BENCH, AHMEDABAD
Before: SHRI WASEEM AHMED
आदेश/O R D E R
PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-4, Ahmedabad, dated 05/09/2019 arising in the matter of assessment order passed under s. 144 r.w.s 147 of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2011-12.
The assessee in the first ground of appeal has challenged the validity of the assessment framed u/s 147 r.w.s. 144 of the Act, on the ground that the assessment has been framed in the name of dead person.
The Ld. AR before us filed a paper book running from pages 1 to 82 and contended that the notice u/s 148 of the Act, was issued dated 29/03/2017 and assessment was framed accordingly dated 17/11/2017 whereas the assessee died dated 28/02/2010. Thus, according to the Ld. AR, the assessment u/s 147 r.w.s. 144 of the Act and the notice u/s 148 of the Act have been framed/issued in the name of dead person and therefore the assessment is accordingly void an initio.
The Ld. AR in support of his contention relied on several judgments as detailed below: Late Shri Jayantilal kalidas Shah vs. ITO –ITA 990/Ahd/2019 Savita Kapila vs. ACIT – 426 ITR 502 (Del.) Bhavnaben S. Patel LH of Late Sanmukhbhai Patel SCA 20437 of 2018 Alamelu Verrapn vs.ITO – (2018) 257 Taxman 72 (Madras) Urmilaben Anurudhsinhji Jadeja vs. ITO – 420 ITR 226 (Gujarat) PCIT vs. maruti Suzuki India Ltd. (2019) 416 ITR 613 (SC) Chandresh Jayantibhai Patel vs. ITO – (2019) 413 ITR 276 (Gujarat)
On the other hand, the Ld. DR contended that there was no information available with the department about the demise of the assessee. Thus, in the absence of any information, the AO issued notice u/s 148 of the Act in the name of the assessee and therefore the assessment cannot be held as invalid.
We have heard the rival contentions of both the parties and perused the materials available on record. At the outset we note that this Tribunal involving the identical facts and circumstances in has decided the issue in favour of the assessee. The relevant extract of the order is reproduced as under: 7. It is a settled position of law neither re-opening notice can be issued in the name of the deceased person nor the same can be continued against the deceased. The Ld. A.R. further relied upon the judgment passed by the Coordinate Bench on the identical facts in the matter of Shri Rajesh G. Shah vs. ITO in ITA No. 2232/Ahd/2018 for A.Y. 2007-08 and the judgment passed by the Hon’ble Delhi High Court in the case of Savita Kapila vs. ACIT, reported in (2020) 118 taxmann.com 46 (Delhi). While dealing with the issue the Coordinate Bench has been placed to observe as follows: “6. Admittedly after the demise of the assessee on 05.01.2011 the notice under Section 148 dated 07.03.2014 was sought to be served upon her and finally the assessment proceeding was also finalized under Section 143(3) r.w.s. 147 on 26.03.2015. The above fact was duly placed before the First Appellate Authority by the representative of the deceased assessee which is also appearing at Page 2 Para 3.1 of the order passed by the First Appellate Authority; the same reads as follows:- “3.1 During the course of appellate proceedings, the appellant filed written submission dtd. 16.08.2016 and the relevant portion of the same is reproduced as under:- “The undersigned appellant was assessed to tax at Mumbai in earlier years. There is no facts concealed by the undersigned appellant. The learned AO has issued a notice of reopening on deceased person and a frame the assessment on that the deceased person. This action of the learned AO is not within the provision of the law. In spite of these facts, the completed assessment has been reopened by the learned AO which is not within the provisions of the law and therefore the impugned reassessment order passed is bad in law and deserves to be cancelled””
7. It is a settled principle of law that reopening notice issued in the name of a deceased person is not tenable in the eye of law. Neither the reopening notice under Section 148 issued to a dead person could be continued against legal representatives. Reliance is placed on the judgment passed by the Hon’ble Jurisdictional High Court in the case of Urmilaben Anirudhsinhji Jadeja vs. ITO, reported in 420 ITR 226 (Gujarat), PCIT vs. Maruti Suzuki India Ltd., reported in (2019) 416 ITR 613 (SC) and Chandreshbhai Jayantibhai Patel vs. ITO, reported in (2019) 413 ITR 276 (Gujarat). The ratio laid down in the order passed by the Hon’ble Madras High Court in the case of Alamela Veerappan vs. ITO, reported in [2018] 95 taxmann.com 155/257 Taxman 72 (Mad.) has also been considered by us where the ratio as above has been laid down.”
Further that we find that the factum of death of the assessee on 20.06.2011 was already in the knowledge of the Ld. AO which is evident from Page 4 Paragraph 6.1 of the AO. Under these circumstances is the revenue who is to take proper step while issuing notice under Section 147 of the Act instead it is finalized in the name of the deceased. In this regard, we have considered the judgment passed in the matter of Shri Rajesh G. Shah (supra) and the judgment passed by the Delhi High Court in the case of Savita Kapila (supra) where it has been held that in the absence of a statutory provision the duty cannot be cast upon legal representative to intimate factum of death of assessee to department and thus, where AO issued a notice to the assessee under Section 148 of the Act after his death and in such a case it could not have been validly served upon the assessee the said notice being invalid is required to be quashed. Thus, taking into consideration the entire aspect of the matter and relying upon the ratio laid down in the above matter we do not hesitate to hold that the notice under Section 148 of the Act issued on 31.03.2017 in the name of Jayantilal K. Shah who has died on 20.06.2011 is invalid. The proceeding is, therefore, void ab initio and hereby quashed.
In the result, the appeal preferred by the assessee is allowed.
6.1 We also note that the Hon’ble Gujarat High Court involving identical facts and circumstances has also held the assessment as invalid in the case of Bhavnaben Sanmukhbhai Patel L/H of Late Sanmukhbhai Keshavbhai Patel Vs Income Tax Officer-Ward 2(3)(4) in Civil Application No. 20437 of 2018. The relevant extract of the order is reproduced as under: 5. The question whether the income tax authorities can subject a dead person to the assessment proceeding, is no longer res Integra. 5.1 The Division Bench of this Court in Urmilaben Anirudhhasinji Jadeja Vs. Income Tax Officer, Ward 7(1)(3) [(420) ITR 226], addressed the very issue. The Court considered various decisions of the Supreme Court and the High Court, touching the aspects of the issue, and held that there cannot be any assessment against a dead person. In that case also, notice was issued to the dead assessee under Section 148 of the Income Tax Act, 1961. 5.2 While holding that the proceedings would be nullity against the dead assessee, the rider was provided that in cases where legal representatives participate in the assessment or re- assessment proceedings, the proceedings may be maintained and continued. It was at the same time held that mere intimation by the legal representative to the assessing officer that the notice is dead, would not amount the heir participating in the proceedings. In Urmilaben Anirudhhasinji Jadeja (supra), while the revenue raised various contentions seeking a proposition that the proceedings against the dead assessee would be maintained, the Court negatived them all. 5.2.1 One of the contentions was based on Section 292BB of the Act. The said provision contemplates that the notice shall be deemed to be valid in certain circumstances. It mentions that where an assessee has appeared in any proceedings or cooperated in any inquiry relating to assessment or re-assessment, it shall be deemed that a notice required to be served under the Act has been duly served upon him. Such assessee, it is provided, shall be precluded from taking any objection about the service of the service of the notice and manner of the service. 5.2.2 The Division Bench held that the said provision would not apply in cases where notices are gone to the dead assessee and the proceedings are started against a dead assessee. It was observed and held in paragraph 23 thus, "The purport of Section 292BB of the Act is that in the event of any mistake, defect or omission in the notice or other proceedings, if the same is in conformity with or according to the intent and purpose of the Act, the notice cannot be termed as invalid. To put it in other words, the notice should be in conformity with and in accordance with the intent and purpose of the Act. In our opinion, a case in which notice is issued to a dead person could be termed as nullity. It is something like a safeguard passing a decree against a dead person which cannot be executed through the legal representatives of the judgment-debtor." 5.3 Similar view was taken by the co-ordinate Bench of this court in Chandreshbhai Jayantibhai Patel vs. Income Tax Officer [(2019) 101 taxmann.com 362 (Gujarat)].
6. The facts of the case do not offer any fact or circumstances to suggest that the legal representative of the deceased assessee in any manner submitted to the jurisdiction of the income tax authorities or in any way participated in the proceedings so as to persuade the court to hold otherwise. 6. In view of the above, the present petition deserves to be allowed. It is hereby allowed by holding that the impugned notice, which was against the dead assessee could not be sustained. 6.1 Resultantly, the notice dated 26.03.2018 issued in the name of Sanmukhbhai Keshavbhai Patel, as a dead person, by the income tax department is held to be illegal.
7. The Notice dated 26.03.2018 issued by income tax authorities is set aside. The income tax authorities shall not proceed against the said dead assessee. Rule is made absolute.
6.2 In view of the above, and after considering the facts in totality we hold that the assessment has been framed in the name of dead person and therefore the same is void ab initio. Accordingly we quashed the same. Hence the ground of assessee is allowed.
6.3 As we have hold the assessment order as invalid, we do not find any reason to adjudicate the issue raised by the assessee on merit. As such all of those issues on merit become infructuous. Hence, we dismiss the same.
In the result, the appeal filed by the assessee is partly allowed.
Order pronounced in the Court on 21/10/2022 at Ahmedabad.