SMT. VARSHABEN PARAS JANI(L.H. OF SHRI PARAS CHUNILAL JANI),AHMEDABAD vs. ACIT, CIRCLE-5(1), AHMEDABAD

The instant appeal filed at the instance of the assessee is directed against the order dated 30.01.2019 passed by the Commissioner of Income Tax (Appeals)-5, Ahmedabad [‘the CIT(A)], arising out of the order dated 20.02.2015 passed by the ACIT, Circle - 5(1), Ahmedabad, under Section 143(3) r.w.s. 263 (Smt. Varshaben Paras Jani vs. ACIT) A.Y.– 2012-13 - 2 – of the Income Tax Act, 1961 (hereinafter referred as to ‘the Act’) for Assessment Year 2012-13.

We have heard the rival submissions made by the respective parties and we have also perused the relevant materials available on record.

The brief facts leading to this case is this that the assessment order under Section 143(3) r.w.s. 263 of the Act was passed by the ACIT, Circle -5(1), Ahmedabad on 02.11.2017 in the name of the deceased person, namely, Late Paras Chinubhai Jani who died on 07.06.2017 as is evident from the Death Certificate submitted by the Ld. AR before us, which was already made known to the Ld. AO by and under the letter dated 29.09.2017 by the Ld. Counsel while asking for adjournment in order to enable him to receive the authority letter from the wife and legal heir of the assessee, namely, Varshaben P. Jani was not in town at that particular point of time. In that view of the matter, the case made out by the assessee is this that as the order passed by the Ld. AO admittedly in the name of a deceased person, the entire proceeding is vitiated and, thus, liable to be quashed. It was further brought to our notice that the Ld. CIT(A) while dealing with this particular ground agitated before him observed that as the legal and jurisdiction notice was issued on alive person and during assessment proceedings, since, the assessee died, it seems that the assessment order mentioning the name of the deceased instead of legal heir is a curable mistake under Section 292BB of the Act. In (Smt. Varshaben Paras Jani vs. ACIT) A.Y.– 2012-13 - 3 – rebuttal, it was submitted by the Ld. AR that the provision of Section 292BB of the Act is not applicable to the instant case in hand, in view of this particular fact that Section 292BB speaks about the service of notice and not finalization of the assessment in the name of a deceased person. Once the order dated 02.11.2017 issued under Section 143(3) r.w.s. 263 of the Act in the name of the deceased person particularly, even after having the knowledge of the death of the assessee, the order become non-est in the eye of law and thus liable to be quashed. He further relied upon the judgment passed by the Jurisdictional High Court in case of Krishnaawtar Kabra L/H of Jagannath Rampal Kabra vs. ITO in R/Special Civil Application No.1515 of 2022, dated 29.03.2022, wherein it has been decided that issuing notice upon the deceased assessee is as good as no valid notice in the eye of law resulting in irregularity, which is not curable. The Ld. DR has failed to controvert such submission made by the Ld. AR.

On the basis of the fact narrated hereinabove, we have further considered the judgment passed by the Krishnaawtar Kabra (supra). We find that while dealing with this particular aspect of the matter, Hon’ble Court was pleased to observe as follows:

We have therefore, no hesitation in coming to the conclusion that the impugned notice dated 31.03.2021 admittedly, being issued upon deceased - assessee is void ab initio and the consequential proceedings and the orders passed thereon are any without jurisdiction and are therefore, hereby quashed and set aside. The writ application succeeds to the aforesaid extent.”

We find that the assessee before us is on a better footing. Though the notice was served upon the assessee, since deceased, the order of assessment under Section 143(3) r.w.s. 263 of the Act was issued in the name of the deceased, knowing fully well that the assessee already died on 07.06.2017 fact of which was made known to the Ld. AO by and under letter dated 29.09.2017 enclosing death certificate of the assessee. The same is also annexed to the paper book filed before us. Further that, when the assessee sought for adjournment on 29.09.2017 requesting for some time to represent the matter before the Ld. AO, the Ld. AO should have given further opportunity to bring on record the legal heir of the assessee and to proceed with the matter strictly in (Smt. Varshaben Paras Jani vs. ACIT) A.Y.– 2012-13 - 5 – accordance with law. The duty incumbent upon the Ld. AO is evidently failed to have been performed in its proper perspective. Thus, taking into consideration the entire aspect of the matter as the assessment order issued under Section 143(3) r.w.s. 263 of the Act is found to have been issued in the name of the deceased assessee, the same, in our considered opinion, is non-est in the eye of law and, thus, liable to be quashed. Taking inspiration from the ratio laid down by the Hon’ble Jurisdictional High Court in the case of Krishnaawtar Kabra (supra), we do not hesitate to quash the assessment order passed under Section 143(3) r.w.s. 263 of the Act.

In the result, the appeal preferred by the assessee is allowed.