The Tax Publishers2020 TaxPub(DT) 2938 (Del-HC) : (2020) 426 ITR 0502 : (2020) 316 CTR 0465 : (2020) 273 TAXMAN 0148

INCOME TAX ACT, 1961

Section 148

As sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of correct person, therefore, section 148 notice issued in the name of deceased assessee was quashed as invalid.

Reassessment - Notice under section 148 - Issuance of notice in name of deceased assessee -

AO issued section 148 notice in the name of deceased assessee. The notice was neither served upon assessee nor upon any of his legal heirs. AO passed an order, whereby penalty under section 271(1)(b) was imposed upon deceased-assessee through legal heir for non-compliance of notices issued to deceased assessee. Proceedings were transferred to PAN of one of legal heir of deceased assessee and on the same date impugned assessment order was passed in her name and PAN, whereby addition was made and demand was raised. Legal heir, i.e., petitioner challenged this by way of writ petition contending that statutory requirement of service under section 148 had not been fulfilled. AO's case was that under section 159 legal representative was liable for liabilities of deceased-assessee and, therefore, it could not be said that assessment proceedings were null and void merely because impugned notice under section 148 was issued by AO completely unbeknownst of the fact that assessee had died. Held: Impugned notice under section 148 dated 31-3-2019 under section 148 was issued to deceased assessee after date of his death (21-12-2018) and thus inevitably said notice could never have been served upon him. Consequently, jurisdictional requirement under section 148 of service of notice was not fulfilled as sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of correct person. This requirement of issuing notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law.

Supported by:Alamelu Veerappan v. ITO Non Corporate Ward (20(2), Chennai (2018) (6) TMI 760 Mad-HC) : 2018 TaxPub(DT) 3564 (Mad-HC) and Sumit Balkrishna Gupta v. Asstt. CIt Circle 16(2), & Ors. 92019) 2 TMI 1209 TaxPub(DT0 6900 (Bom-HC).

REFERRED :

FAVOUR : In assessee's favour.

A.Y. : 2012-13



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