RAMCHAND THROUGH LEGAL HEIR SH. CHANDER MOHAN,NEAR GOL KOTHI, HANSI vs. INCOME TAX OFFICER, WARD-3, HISAR, HISAR

This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi (hereinafter referred to as 'the CIT(A)') dated 24.08.2023, for assessment year 2011-12.

The appeal is time barred by 164 days. The assessee has filed an application for condonation of delay in filing of appeal. After perusal of the same, I am satisfied that delay in filing of appeal was not intentional or for non action of the assessee/appellant, but was for the reasons stated in the application which appears to be bonafide. Thus, delay in filing of appeal is condoned and appeal is admitted for hearing on merits.

Per contra, Shri Sanjay Kumar representing the department vehemently defended the impugned order and prayed for dismissing appeal of the assessee. The ld. DR submits that a perusal of assessment order would show that the assessment is made in the name of legal heir of Shri Ramchand. Hence, it cannot be said that the assessment is framed in the name of a dead person.

Both sides heard, orders of the authorities below examined. The primary contention of the assessee is that notice u/s. 148 of the Act and subsequent notice u/s. 142(1) of the Act have been issued in the name of deceased, hence, proceeding arises there from are vitiated. Shri Ramchand died on 31.01.2018 as is evident from his death certificate placed on record at page 51 of the paper book. The LR’s of deceased Ramchand vide letter dated 26.02.2018 (delivered in the office of AO on 05.03.2018) informed the AO regarding death of Ramchand and also enclosed his death certificate. The said letter is at page 46 of the paper book. Despite the fact that AO was informed about the death of Ramchand, still he issued notice u/s. 148 of the Act on 29.03.2018 in the name of Ramchand. It is not a case where the AO was oblivious of the fact of death of Ramchand. The AO in assessment order has categorically mentioned that notice u/s. 148 of the Act was issued and served upon the assessee through its legal heirs. It is no more res integra that Income Tax proceedings cannot be initiated in the name of a dead person. In the instant case, the Assessing Officer was time and again informed about the death of Ramchand. Despite that the AO not only issued notices u/s. 148 and 142(1) of the Act in the name of a dead person but has also passed assessment order in the name of deceased mentioning his name as, Late Shri Ramchand through L/H Smt. Bhagwati (AY 2011-12) Devi. Thus, in effect the assessment order was passed in the name of a dead person. The Supreme Court of India in the case of PCIT vs. Maruti Suzuki India Limited 265 Taxman 515 has categorically held that where assessment order is passed in the name of a non existing entity, the same is without jurisdiction and has to be set aside.

In present case, I find that the AO in first instance has erred in issuing notice u/s. 148 of the Act in the name of a dead person and thereafter, has erred in framing assessment in the name of deceased without substituting the name of legal representatives of deceased. Thus, I hold assessment proceedings and assessment order in the name of dead person without jurisdiction and quash the same.