Notice u/s 148 issued in the Name of the Deceased Assessee is Nullity in the Eyes of Law: ITAT [Read Order]

Notices - Notice - Taxscan

In a recent case, the Income Tax Appellate Tribunal, Jaipur held that the notice under Section 148 of the Income Tax Act, issued in the name of the deceased assessee is a nullity in the eyes of law. Further, no notice u/s 148 has been issued in the name of the legal heirs and therefore, the provisions of section 159 cannot be invoked in the instant case.

The facts of the case are that the assessment in the case of the deceased assessee was completed u/s 147 read with section 144 wherein the long term capital gain on sale agricultural land was brought to tax by the Assessing Officer. In the appeal, the same has been confirmed by the CIT(A). Hence, the present appeal is filed by the legal heirs of the deceased assessee.

In the instant case, appellant was submitted that the proceedings u/s 147 were initiated against the dead person who had expired much prior to the issuance of notice u/s 148. So the impugned notice having been issued in the name of a dead person was an invalid notice and consequently, such proceedings are void ab initio. It was further submitted that the AO did not issue any notice u/s 148 of the Act or 143(2) of the Act in the name of the legal heirs.  It was stated that the notice u/s 148 was duly served through the post. However, no details were provided as to the name of the person on whom service through the post, if any was effected and whether that person is the deceased assessee or the legal heirs. Therefore, the assessment framed by the AO on the basis of the notice issued u/s 148 of the Act in the name of the deceased assessee was invalid and void ab initio.

Respondent submitted that the assessee has not filed his return of income for the year under consideration or for the prior assessment years and was not having any PAN. In the absence of any details, it was not possible to ascertain the existence of status of the assessee. On the basis of the information available on record, action u/s 147 was initiated in the case of the assessee and after taking prior approval from the competent authority; notice u/s 148 was issued and served through the post as mentioned in assessment order by the AO. Therefore, the proceedings initiated were as per law. The same has also been confirmed by the Ld. CIT(A).

In the light of judgments in case Vipin Walia vs. ITO the bench comprising of Judicial MemberVijay Pal Rao and Accountant Member Vikram Singh Yadav held that The reasons for reopening the assessment u/s 147 were recorded and thereafter the notice u/s 148 was issued in the name of the assessee. Therefore, at the time of issuance of the notice u/s 148, the assessee had already expired. So the notice issued in the name of the deceased assessee is a nullity in the eyes of law.  Further, no notice u/s 148 has been issued in the name of the legal heirs and therefore, the provisions of section 159 cannot be invoked in the instant case. Consequently, the present reassessment proceedings initiated by issuance notice on the deceased assessee are being quashed for want of jurisdiction.

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