Case Law Details
Sri Aemala Venkateswara Rao Vs ITO (ITAT Visakhapatnam)
Conclusion: Assessment made by AO in the name of the legal heir without issuing notice u/ 148 was not valid as the notice under section 148 was required to be issued to a correct person and not to a dead person and the same was not a merely a procedural requirement but was a condition precedent to the impugned notice being valid in law.
Held: In the present case, assessee was expired on 03.11.2009, in support, death certificate was also enclosed in the paper book. Subsequent to the death of assessee, reassessment proceedings were initiated and the notice u/s 148 was issued in the name of the dead person. In response to the notice issued by AO, the wife of the deceased had intimated the death of the assessee. However, no effort was made by the AO to bring the legal heir on record, instead, AO proceeded to complete the assessment in the name of the legal heir without issuing notice u/ 148. It was held 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.
FULL TEXT OF THE ITAT JUDGEMENT
This appeal is filed by the Legal Representative(LR) of the assessee against the order of the Commissioner of Income Tax (Appeals) [CIT(A)]-1, Guntur vide I.T.A.No.197/CIT(A-1)/GNT/2013-14 dated 30.12.2016 for the Assessment Year (A.Y.) 2007-08.
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