Notice by affixture in the name of dead assessee showed that Tax Official actually did not went there else they could have come to know about death
ABCAUS Case Law Citation:
ABCAUS 2932 (2019) (05) ITAT
Important Case Laws Cited/relied upon by the parties
Sumit Balkrishna Gupta Vs. ACIT
Rajender Kumar Sehgal Vs. ITO’ [2019] 101 taxmann.com 233 (Delhi)
The appeal was filed by the legal heir of the deceased assessee against the order passed by the CIT(A) contending that the notice u/s 148 was illegal as it had been issued to the dead person and, as such, the proceedings were void.
In this case the assessment was reopened u/s 147 of the Income-tax Act, 1961 (the Act) by way of issuance of notice u/s 148 of the Act in the name of deceased assessee. However, the assessee had already died much before the issuance of notice u/s 148 of the Act.
Even, the notice u/s 148 of the Act was served through affixation and not in a regular mode of service. The notice was issued in the name of the deceased assessee.
The Tribunal observed that the issue was squarely covered by the various decisions of the Hon’ble High Courts. In a latest decision the Hon’ble High Court had held that the issue of a notice under Section 148 of the Act is a foundation for reopening of assessment. The sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not a merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. Thus, a notice which has been issued in the name of the dead person is also not protected either by provisions of Section 292B or 292BB of the Act. This is so as the requirement of issuing a notice in the name of correct person is the foundational requirement to acquire jurisdiction to reopen the assessment.
The High Court had further observed that Section 148 of the Act requires that before a proceeding can be taken up for reassessment, a notice be served upon the assessee. The assessee on whom the notice must be sent must be a living person i.e legal heir of the deceased assessee, for the same to be responded. That this in fact is the intent and purpose of the Act. Therefore, Section 292B of the Act cannot be invoked to correct a foundational / substantial error as it is meant so as to meet the jurisdictional requirement.
Similarly, in another case, the Hon’ble High Court held that where the notice seeking to reopen assessment was issued in the name of deceased assessee, since she could not have been participated in reassessment proceedings, provisions of section 292BB were not applicable to the assessee’s case and as a consequence, reassessment proceedings deserved to be quashed.
The Revenue pointed out that the Legal Heir of the assessee should have promptly come forward to apprise the Assessing officer that the assessee had died so that notice could have been issued in the name of legal representative of the assessee.
The Tribunal rejected the above contention of the Department. The Tribunal noted that the notice was not served through registered post / or by regular mode of service. The notice was infact was served through substituted mode of the service i.e. by affixation of the same at the door of the house of the assessee. However, the report of service through affixation had not been witnessed by any person.
The Tribunal opined that had the Income-tax officials actually gone to the house of the deceased assessee and enquired from the villagers about the whereabouts of the assessee for the purpose of service of the notice, they could have easily come to know about the death of the original assessee and would have accordingly apprised the Assessing officer.
The Tribunal said that it was not believable that the Revenue officials had visited the house of the assessee and they could not get the information about the death of the assessee despite affixation of the notice which was also required to be witnessed by some independent / respectable of the village.
Accordingly the Tribunal quashed the impugned notice issue u/s 148 of the Act as ‘invalid’ and also the consequent assessment proceedings.
