BIMLA DEVI,REWARI vs. ITO, REWARI

That the order of Ld. CIT(Appeals) is against law and facts.

That the Ld. CIT(Appeals) erred in not accepting the plea of the appellant that the notice issued u/s 148 in the name of deceased Smt. Bimla Devi is non-est, as she expired much before the issue of notice u/s 148. 3. That the Ld. CIT (Appeals) erred in not accepting the plea of the appellant that the Ld. AO erred in assuming jurisdiction over the case without proper service of notice u/s 148 of the Act. 4. That the Ld. CIT(Appeals) erred in not quashing the assessment order although the notice issued by the Ld. AO u/s 143(2) of the Act was in the name of deceased Smt. Bimla Devi and any notice issued in the name of dead person is not a valid notice. 5. That the Ld. CIT(Appeals) erred in not quashing the assessment order although the assessment was completed u/s 144 of the Act by the Ld. AO without proper service of notice u/s 142(1) of the Act on all the L/Hs of Smt. Bimla Devi. 6. That the Ld. CIT(Appeals) erred in confirming the addition of Rs. 10,01,500/- made by the Ld. AO u/s 68 on account of cash deposit in the Bank Account. 7. That the appellant craves leave to add or alter any of the Grounds of Appeal.”

Facts of the case in brief are that the AO on the basis of AIR information issued notice u/s 148 of the Act, dated 16.3.2012 to the assessee. In response to the said notice, no return of income was filed. The AO mentioned in the assessment order dated 21.03.2013 that another notice u/s 142(1) dated 23.7.2012 was issued to the assessee and a return of income declaring an income of Rs. 29,990/- was filed on 6.11.2012 by Shri Chet Ram, Legal heir of the assessee. The AO framed the assessment u/s 144 read with section 148 of the Act, at an income of Rs. 10,01,500/- . The legal heir of the assessee carried the matter to the ld. CIT(A) and challenged the validity of the assessment, however, the ld. CIT(A) did not find merit in the submissions of the legal heir of the assessee and confirmed the action of the AO. Now the legal heir of the assessee has filed the appeal.

The ld. Counsel for the deceased-assessee submitted that the AO although was knowing that the assessee has expired when the return of income was filed by the legal heir of the deceased-assessee on 6.11.2012, even then the notice u/s 143(2) was issued on 6.11.2012 and again on 05.02.2013 in the name the deceased- assessee i.e. the dead person. It was further submitted that the another notices u/s 142(1) of the Act were issued on 05.02.2013 and 15.03.2013 in the name of the dead person. Therefore, the Bimla Devi assessment framed u/s 144 on the dead person was void ab initio and deserves to be set aside.

In his rival submissions, the ld. DR supported the orders of the authorities below and further submitted that the return of income was filed by the legal heir of the deceased assessee and the assessment has been framed in the name of the assessee through legal heir, therefore, the assessment framed by the AO was valid.

I have considered the submissions of both the parties and carefully gone through the material available on the record. On perusing the assessment order dated 21.3.2013 in the name of Smt. Bimla Devi, deceased through legal heir Shri Chet Ram, it would be clear that the return of income was filed by Shri Chet Ram legal heir of the deceased assessee on 6.11.2012, therefore, the AO was having the knowledge that the assessee had already expired when the return of income was filed on 6.11.2012. However, the notice u/s 143(2) and u/s 142(1) dated 05.02.2013 (copy of which is placed at page no. 7 and 8 of the assessee’s paper book) were issued in the name of Smt. Bimla Devi the deceased assessee which had already expired. It is well settled that the issuance of notice u/s 143(2) is the pre-requisite condition for framing the assessment u/s 143(3) of the Act. However, in the present case, it is noticed that the AO issued the notices dated 05.02.2013 u/s 143(2) & 142(1) of the Act in the Bimla Devi name of dead person i.e. Smt Bimla Devi. Therefore the assessment framed on the basis of said notice was void- ab initio.

In view of the aforesaid discussion, the assessment framed by the AO vide assessment order dated 21.03.2013, on the basis of the notices issued u/s 143(2) dated 6.11.2012 and u/s 142(1) & 143(2) dated 05.02.2013, is quashed.

In the result, Appeal of the legal heir of the deceased assessee is allowed.