The Income Tax Appellate Tribunal (ITAT), Ahmedabad bench, while quashing a re-assessment notice under section 148 of the Income Tax Act, 1961, has held that there is no statutory duty upon the legal of the assessee to inform the death of the latter to the income tax department.
A notice under Section 148 for re-opening of assessment was issued in the name of Jayantilal K. Shah since deceased on 31.03.2017. the notice issued in the name of dead person. The said proceeding under Section 143(3) r.w.s. 147 was finalized on 02.11.2017 in the name of the deceased. However, the notice under Section 142 of the Act was served upon legal heir the Japan N. Shah being the grandson of the assessee. The said proceeding under Section 147/148 was finalized in the name of the deceased person which was further confirmed by the Ld. CIT(A).
Before the Tribunal, the department submitted that it is the duty cast upon the legal representative to intimate the factum of death of the assessee to the department.
The Tribunal bench comprising Shri Waseem Ahmed, Accountant Member & Ms. Madhumita Roy, Judicial Member held that the factum of death of the assessee on 20.06.2011 was already in the knowledge of the Ld. AO which is evident from Page 4 Paragraph 6.1 of the AO.
“Under these circumstances is the revenue who is to take proper step while issuing notice under Section 147 of the Act instead it is finalized in the name of the deceased. In this regard, we have considered the judgment passed in the matter of Shri Rajesh G. Shah (supra) and the judgment passed by the Delhi High Court in the case of Savita Kapila (supra) where it has been held that in the absence of a statutory provision the duty cannot be cast upon legal representative to intimate factum of death of assessee to department and thus, where AO issued a notice to the assessee under Section 148 of the Act after his death and in such a case it could not have been validly served upon the assessee the said notice being invalid is required to be quashed. Thus, taking into consideration the entire aspect of the matter and relying upon the ratio laid down in the above matter we do not hesitate to hold that the notice under Section 148 of the Act issued on 31.03.2017 in the name of Jayantilal K. Shah who has died on 20.06.2011 is invalid. The proceeding is, therefore, void ab initio and hereby quashed,” the Tribunal said.
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