BAIRAJBEN CHAVDA L/H OF LATE BHURABHAI GANDABHAI CHAVADA,AHMEDABAD vs. THE ITO, WARD-3(2)(1), AHMEDABAD

The grounds of appeal

1. The Ld CIT(A) erred in disregarding the settled law and facts of the case while upholding the assessment order passed by the Ld Assessing Officer in the name of deceased Assessee despite this being undisputed fact.

The assessee did not file return of income u/s. 139. The Assessing Officer as per information observed that the assessee deposited substantial cash of Rs. 31,80,000/- during the period of 09-11-2016 to 30-12-2016 known as demonetization period. The Assessing Officer issued notice u/s. 142(1) but the assessee did not file any reply to that effect. The Assessing Officer issued show cause notice on 05- 11-2019 asking the assessee to explain nature and source of cash deposits of Rs. 5,00,000/- in Uco Bank, Rs. 21,80,000/- in State Bank of India and Rs. 5,00,000/- Bhagyodaya Co- operative bank. The assessee’s wife submitted letter dated 11th Nov, 2019 stating that the assessee passed away on 17- 10-2019. The wife of the assessee stated that several of his fixed deposits with banks matured from time to time before demonetization period and he get all the maturity proceeds over the years in cash on lakhs of rupees at his home for buying land by making payment in cash. The Assessing Officer rejected the said explanation and passed order u/s. 144 of the Income Tax Act, 1961 dated 19-11-2019.

Being aggrieved by the assessment order, the wife of the assessee being legal heir of the assessee filed appeal before the CIT(A). The CIT(A) partly allowed the appeal of the assessee.

The ld. A.R. submitted that the Assessing Officer as well as CIT(A) has noted down that the assessee died during the assessment proceedings which was duly informed by the wife of the assessee who is a legal heir of the assessee, the assessment order is passed in the name of deceased assessee. Thus, the ld. A.R. submitted that the assessment is itself null and void and the assessment order is passed on a dead person (deceased assessee). The ld. A.R. relied upon the decision of Hon’ble Gujarat High Court in case of Pravinchandra A. Shah 154 taxmann.com 616 (Gujarat) and Chandresh Bhai vs. ITO 101 taxmann.com 362 (Gujarat). The ld. A.R. also relied upon the following decisions:-

The ld. D.R. submitted that the CIT(A) has rightly passed the order thereby confirming the addition to the extent where the explanation was not plausible. As regards the assessment passed in the name of deceased assessee, the ld. D.R. submitted that it is a typographical mistake which can be rectified.

Heard both the parties and perused all the relevant materials available on record. It is pertinent to note that during the assessment proceedings, the wife of the assessee who is the legal heir of the assessee informed that the assessee died on 17-10-2019. The notice was issued in the name of the deceased person and therefore the Assessing Officer was very much aware of the deceased assessee. Therefore, it cannot be stated that it is typographical error. The assessment does not survive if the same is passed in the name of deceased assessee as the order become void ab initio. Hence, in the light of the decisions of Hon’ble Gujarat High Page No. 5 Bairajben Chavda L/H of Late Bhurabhai Gandabhai Chavda vs. ITO Court as well as the guideline envisaged by the Hon’ble Supreme Court in case of Maruti Suzuki India Ltd.(supra), the assessment order itself is null and void and will not sustain in the eyes of law. Thus, the appeal of the assessee is allowed.

In the result, the appeal of the assessee is allowed.