Banwari Lal Soothwal Vs ITO (ITAT Jaipur)
ITAT Jaipur held that notice under section 148 of the Income Tax Act and order thereon issued in the name of Dead individual is null and void. Accordingly, the impugned notice and order held as void-ab-initio.
Facts- Assessee, Mr. Banwarilal Soothwal, expired on 09/02/2016. Assessing Officer(AO) issued notice u/sec.148 on 30/03/2018 in the name of deceased assesse. Later, AO passed the order u/sec.148 in the name of the deceased assessee. Accordingly, addition of Rs. 89,89,504/- was made on account of long term capital gain on sale of plots. CIT(A) confirmed the said addition. Accordingly, being aggrieved, the present appeal is filed.
Conclusion- In this case since the assessee was already dead at the time of issue of notice u/s 148, as per Section 159 of the Act it was mandatory for the Income tax Authorities to issue the notice u/s 148 in the name of the Legal representative. However, in this case the notice u/s 148 has been issued in the name of the deceased assessee. Income Tax Act has adopted the definition of Legal Representative as defined in Section 2(11) of Code of Civil Procedure 1908.
Hon’ble Bombay High Court in the case Devendra Vs. Addl.CIT has held that a Notice u/sec.148 issued in the name of Dead individual is null & void. The reassessment order passed in the name of dead individual is null & void. The Hon’ble Bombay High Court also held that Section 292B or 292BB will not be able to cure this defect.
