Case Law Details
Lalita Agarwal Vs ACIT (ITAT Delhi)
We have carefully considered the facts stated above in these appeals wherein the notice under section 148 is issued in the name of a deceased assessee stating his PAN number. Further the assessment orders are also framed in the name of the deceased assessee stating his PAN number. The issue before us is squarely covered by the decision of Savita Kapila (supra) in 426 ITR 502 wherein it has been held that there is no legal requirement that legal representative should report death of an assessee to the Income Tax Department. Therefore, the order of the ld. CIT (Appeals) in sustaining the assessment order is not correct. The sustenance of a notice under section 148 of the Act is the foundation stone on which subsequent reassessment proceedings are built up. To acquire the valid jurisdiction necessarily such notices are to be addressed to the correct person and not to a deceased. The Hon’ble Delhi High Court in the above decision of Savita Kapila (supra) dealt with an identical situation and has allowed the Writ petition of that assessee quashing the notices issued u/s 148 and all subsequent consequential orders passed thereafter.
The Hon’ble High Court also dealt with the applicability of Section 292BB of the Act in para No. 38 of the order. The Hon’ble High Court dealt with the issue stating the facts as under :-
38. This court is also of the view that section 292BB of the Act, 1961 is applicable to an assessee and not to a legal representative. Further, in the present case one of the legal heirs of the deceased-assessee, i.e., the petitioner, had neither co-operated in the assessment proceedings nor filed return or waived the requirement of section 148 of the Act, 1961 or submitted to jurisdiction of the Assessing Officer. She had merely uploaded the death certificate of the deceased-assessee. In CIT v. M. Hemanathan [2016] 384 ITR 177 (Mad) ; [2016] (4) TMI 258-the Madras High Court it has been held (page 182 of 384 ITR) : “In the case on hand, the assessee was dead. It was the assessee’s son, who appeared and perhaps co-operated. Therefore, the primary condition for the invocation of section 292BB is absent in the case on hand. Section 292BB is in place to take care of contingencies where an assessee is put on notice of the initiation of proceedings, but who takes advantage of defective notices or defective service of notice on him. It is trite to point out that the purpose of issue of notice is to make the noticee aware of the nature of the proceedings. Once the nature of the proceedings is made known and understood by the assessee, he should not be allowed to take advantage of certain procedural defects. That was the purpose behind the enactment of section 292BB. It cannot be invoked in cases where the very initiation of proceedings is against a dead person. Hence, the second contention cannot also be upheld”.
We find the facts in the present case before us are for better than the facts before the honourable Delhi High court as in that case proceedings were transferred in the name of legal heir and PAN of LH was used for making assessment. In the present case Notice as well as assessment orders both for all these three years were passed in the name of the Deceased assessee.
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