Late S.Suresh Legal Heir by S.Mahesh , Secundrabad V. Income Tax Officer, Ward-15(1), Hyderabad

ITA 1134/Hyd/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 3252 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 18-02-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 15-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Sale consideration of property below Jantri Value; Invalid notice; Gift; Period of limitation; Procedural lapse; Time period of passing order; Reassessment proceedings; Set aside; Capital Gains
• Section: 50C; 2(14); 2(A); 22; 147; 148; 144; 15

Judgement Text

ITA NO 1134 OF 2019 S SURESH SECUNDERABAD PAGE 1 OF 8 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD SMC BENCH, HYDERABAD (THROUGH VIDEO CONFERENCING) BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER ITA NO.1134/HYD/2019 ASSESSMENT YEAR: 2009-10 LATE SHRI S. SURESH, LEGAL HEIR BY S. MAHESH, SECUNDERABAD PAN/GIR:FFTPS4428R VS. INCOME TAX OFFICER WARD 15(1) HYDERABAD (APPELLANT) (RESPONDENT) ASSESSEE BY: SRI MOHD. AFZAL REVENUE BY : SMT. KANIKA AGARWAL,DR DATE OF HEARING: 17/02/2021 DATE OF PRONOUNCEMENT: 22/02/2021 ORDER THIS IS ASSESSEES APPEAL FOR THE A.Y 2009-10 AGAIN ST THE ORDER OF THE CIT (A)-7, HYDERABAD, DATED 20.05. 2019. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE, A N INDIVIDUAL, ALONG WITH SOME OTHERS, SOLD LAND, ADME ASURING 0.12 GUNTAS, SITUATED IN SURVEY NO.62/A AT YARPAL VILLAG E UNDER GHMC ALWAL CIRCLE, MALKAJGIRI MANGAL, RR DIST. VIDE DOCU MENT NO.597/2009, DATED, 30.03.2009 FOR A CONSIDERATION OF RS.18.00 LAKHS WHEREAS THE MARKET VALUE OF THE PROPERTY ON W HICH THE STAMP DUTY IS PAID WAS AT RS.34,50,000/-. SINCE THE ASSESSEE DID NOT FILE HIS RETURN OF INCOME OFFERING THE CAPITAL GAINS FROM THIS TRANSACTION TO TAX, THE AO BELIEVED THAT THERE WAS ESCAPEMENT OF INCOME AND THUS ISSUED A NOTICE U/S 148 OF THE ACT, ON 8.3.2016 TO THE ASSESSEE. SINCE THERE WAS NO RESPONSE FROM T HE ASSESSEE, A SHOW CAUSE NOTICE WAS ISSUED TO THE ASSESSEE ON 9.6 .2016, IN ITA NO 1134 OF 2019 S SURESH SECUNDERABAD PAGE 2 OF 8 RESPONSE TO WHICH, THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE APPEARED BEFORE THE AO AND ON 20.06.2016 CERTAIN WR ITTEN SUBMISSIONS WERE FILED ALONG WITH AN AFFIDAVIT OF T HE SON OF THE ASSESSEE STATING THAT THE ASSESSEE HAS PASSED AWAY AND THAT HE HAD GIFTED THE PROPERTY TO HIS SON AND DAUGHTER. TH E AO, THEREFORE, COMPLETED THE ASSESSMENT BRINGING THE CA PITAL GAINS TO TAX IN THE HANDS OF HIS SON. HE APPLIED THE PROVISI ONS OF SECTION 50C AND BROUGHT THE ASSESSEES SHARE OF THE SALE CO NSIDERATION TO TAX. 3. AGGRIEVED, THE LEGAL HEIR OF THE ASSESSEE PREFER RED AN APPEAL BEFORE THE CIT (A) STATING THAT THE ASSESSEE HAS PASSED AWAY ON 14.12.2015 AND THE NOTICE U/S 148 DATED 8.3 .2016 ISSUED ON A DEAD PERSON, WAS AN INVALID NOTICE AND THEREFORE, THE ASSESSMENT ORDER IS NOT SUSTAINABLE. HOWEVER, THE C IT (A) DISMISSED THE ASSESSEES APPEAL AND THE ASSESSEE IS IN SECOND APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE LEARNED CIT (A) IS AGAINST THE LAW, WEIGHT OF EVIDENCE AND PROBABILITIES OF CASE. 2. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED TH AT THE NOTICE U/S 148 IS NOT SERVED AS PER THE PROVISIONS OF SECTION 282 OF THE IT ACT, THEREFORE, OUGHT TO HAVE HELD THE ORDER AS INVALID ORDER. 3. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED TH AT THE NOTICE DATED 8.3.2016 IS SERVED IN THE NAME OF A DE AD PERSON, THEREFORE, OUGHT TO HAVE HELD THAT THE SAME IS AN INVALID NOTICE, FURTHER ERRED IN NOT HOLDING THE OR DER AS AN INVALID ORDER. 4. THE LEARNED CIT (A) OUGHT TO HAVE HELD THAT THE ALLEGED SALE DEED BETWEEN FATHER AND SON IS NOT A TRANSFER AS PROVIDED I SECTION 2(14) OF THE I.T. ACT, THEREFORE , ERRED IN HOLDING AS SAME AS TRANSFER. 5. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED TH AT THE TRANSACTION IS IN THE NATURE OF GIFT BETWEEN FATHER AND SON, ITA NO 1134 OF 2019 S SURESH SECUNDERABAD PAGE 3 OF 8 THEREFORE, THE CIT (A) OUGHT TO HAVE HELD THAT THER E IS NO TRANSFER AS PER THE PROVISION OF SECTION 2(14) OF T HE IT ACT. 6. THE LEARNED CIT (A) OUGHT TO HAVE APPRECIATED TH AT THERE IS NO CAPITAL GAINS IN THE SUBJECT TRANSACTION, THE SALE DEED IS EXECUTED ON A/C OF MISGUIDANCE INSTEAD OF EXECUT ION OF GIFT DEED, 7. THE APPELLANT CRAVES LEAVE TO ADD TO, AMEND OR M ODIFY THE ABOVE GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL, IF IT IS CONSIDERED NECESSAR Y. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAD EXPIRED ON 14.12.2015 WHEREAS THE NOTICE U/S 148 WAS ISSUED ON 8.3.2016. THEREFORE, THE NOTICE W AS ISSUED ON A DEAD PERSON AND THEREFORE, EVEN AFTER BEING INFOR MED THAT THE ASSESSEE HAS EXPIRED, THE AO HAS NOT TAKEN ANY STEP S TO SERVE THE NOTICE U/S 148 ON THE LEGAL HEIR BUT HAS PROCEEDED TO COMPLETE THE ASSESSMENT ON THE LEGAL HEIR. THEREFORE, ACCORD ING TO THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSMENT IS NOT SUSTAINABLE AND IN SUPPORT OF THIS CONTENTION, HE P LACED RELIANCE UPON THE DECISION OF THE COORDINATE BENCH OF THE TR IBUNAL AT VIZAG IN THE CASE OF SRI AEMALA VENKATESWARA RAO IN ITA NO.227/ VIZ/2017 DATED 3.4.2019 WHEREIN IT WAS HELD THAT TH E NOTICE ISSUED ON A DEAD PERSON IS INVALID AND ACCORDINGLY QUASHED THE ASSESSMENT THEREIN IS NOT SUSTAINABLE AND WAS QUASH ED. 5. THE LEARNED DR WAS ALSO HEARD WHO SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 6. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, I FIND THAT THE FACTUM OF THE DEATH OF T HE ASSESSEE WAS BROUGHT TO THE NOTICE OF THE AO DURING THE RE-ASSES SMENT PROCEEDINGS PURSUANT TO ISSUANCE OF NOTICE U/S 148 BUT THE AO HAS NOT TAKEN ANY STEPS TO BRING LEGAL HEIR ON RECO RD AND TO ISSUE NOTICES U/S 148 OF THE ACT TO THE L/RS. IN FACT, TH E NOTICE U/S 148 ITA NO 1134 OF 2019 S SURESH SECUNDERABAD PAGE 4 OF 8 HAS BEEN ISSUED ON A DEAD PERSON AND THEREFORE, IT IS AN INVALID NOTICE AND THE CONSEQUENT ASSESSMENT ON THE LRS WIT HOUT ISSUING THE NOTICE U/S 148 TO THE LRS IS NOT SUSTAINABLE. S IMILAR FACTS AND CIRCUMSTANCES EXISTED IN THE CASE OF SHRI A VENKATE SWARA RAO (SUPRA) AND THE COORDINATE BENCH AT VISAKHAPATNAM H AS HELD AS UNDER: 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL PLACED ON RECORD. IN THE INSTANT CASE, THE ASSESSEE W AS EXPIRED ON 03.11.2009, IN SUPPORT, DEATH CERTIFICATE IS ALSO ENCLOSED IN THE PAPER BOOK. SUBSEQUENT TO THE DEATH OF THE ASSESSEE, REASSESSMENT PROCEEDINGS WERE INITIATED AND THE NOTICE U/S 148 WAS ISSUED IN THE NAME OF THE DEAD PERSON. IN RESPON SE TO THE NOTICE ISSUED BY THE AO) THE WIFE OF THE DECEASED HA D INTIMATED THE DEATH OF THE ASSESSEE. HOWEVER, NO EFFORT WAS MADE BY THE AD TO BRING THE LEGAL HEIR ON RECORD, INSTEAD, THE AO PROCEEDED TO COMPLETE THE ASSESSMENT IN THE NAME OF THE LEGAL HEIR WITHOUT ISSUING NOTICE U/S 148. THE LD.AR RELIED ON THE PROV ISIONS OF SECTION 159 OF THE ACT. FOR THE SAKE OF CLARITY AND C ONVENIENCE, WE EXTRACT RELEVANT PART OF THE PROVISIONS OF SECTION 15 9 WHICH READS AS UNDER: 159(1). WHERE A PERSON DIES, HIS LEGAL REPRESENTAT IVE SHALL BE LIABLE TO PAY ANY SUM WHICH THE DECEASED WOULD HAVE BEEN LIABLE TO PAY IF HE HAD NOT DIED, IN THE LIKE MANNER AND T O THE SAME EXTENT AS THE DECEASED. (2) FOR THE PURPOSE OF MAKING AN ASSESSMENT (INCLUD ING AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SEC TION 147 OF THE INCOME OF THE DECEASED AND FOR THE PURPOSE OF L EVYING ANY SUM IN THE HANDS OF THE LEGAL REPRESENTATIVE IN ACC ORDANCE WITH THE PROVISIONS OF SUB-SECTION (1),- (A) ANY PROCEEDING TAKEN AGAINST THE DECEASED BEFOR E HIS DEATH SHALL BE DEEMED TO HAVE BEEN TAKEN AGAINST THE LEGA L REPRESENTATIVE AND MAY BE CONTINUED AGAINST THE LEG AL REPRESENTATIVE FROM THE STAGE AT WHICH IT STOOD ON THE DATE OF THE DEATH OF THE DECEASED; (B) ANY PROCEEDING WHICH COULD HAVE BEEN TAKEN AGAI NST THE DECEASED IF HE HAD SURVIVED, MAY BE TAKEN AGAINST T HE LEGAL REPRESENTATIVE; AND (C) ALL THE PROVISIONS OF THIS ACT SHALL APPLY ACCO RDINGLY. (3) THE LEGAL REPRESENTATIVE OF THE DECEASED SHALL, FOR THE PURPOSES OF THIS ACT BE DEEMED TO BE AN ASSESSEE. 6.1. AS PER SUB SECTION 2(A) OF SECTION 159, IN CASE THE PROCEEDINGS ARE ALREADY TAKEN AGAINST THE DECEASED PE RSON BEFORE HIS DEATH, IT IS DEEMED THAT THE PROCEEDINGS ARE TAKEN ITA NO 1134 OF 2019 S SURESH SECUNDERABAD PAGE 5 OF 8 AGAINST THE LEGAL REPRESENTATIVE AND THE SAME WOULD CONTI NUE AGAINST THE LEGAL REPRESENTATIVE FROM THE STAGE AT WHICH IT STOOD ON THE DATE OF DEATH OF THE DECEASED. IN THE INSTANT CASE THE PROCEEDINGS WERE INITIATED AGAINST THE DEAD PERSON AFTE R THE DEATH OF THE ASSESSEE, HENCE THE NOTICE ISSUED ON THE D EAD PERSON CANNOT MAKE THE LEGAL HEIRS BINDING UNLESS A P ROPER NOTICE IS ISSUED ON THE LEGAL HEIRS. AFTER THE DEATH OF THE ASSESSEE, PROCEEDINGS MUST BE INITIATED AGAINST THE LEG AL HEIRS TO TREAT THE LEGAL HEIRS AS DEEMED ASSESSEES. AS PER SEC TION 159 (2) (B), THE AD IS FREE TO INITIATE PROCEEDINGS AGAINST THE LEGAL REPRESENTATIVES WHICH COULD HAVE BEEN INITIATED AGAIN ST THE DECEASED AND DETERMINE THE TAX LIABILITY OF THE DECEAS ED PERSON AND THE SAME IS BINDING ON THE LEGAL REPRESENTATIVES. A NY NOTICE ISSUED IN THE NAME OF A DECEASED PERSON IS INVALID A ND CANNOT BE ENFORCED IN THE LAW. THE LD.AR RELIED ON THE DECISIO N OF HON'BLE MADRAS HIGH COURT IN THE CASE OF ALAMELU VEERAPPAN VS . ITO, NON CORPORATE, WARD 2(2) CHENNAI, WRIT PETITION NO.300 60 OF 2017 AND WMP NO.32631 OF 2017. HON'BLE MADRAS HIGH COURT HELD THAT THE NOTICE ISSUED ON A DEAD PERSON IS INVAL ID AND CANNOT BE ENFORCED. FOR THE SAKE OF CLARITY AND CONV ENIENCE 1 WE EXTRACT NO.14-23 WHICH READS AS UNDER: 14. THE ISSUE, WHICH FALLS FOR CONSIDERATION, IS AS TO WHETHER THE IMPUGNED NOTICE UNDER SECTION 148 OF THE ACT ISSUED IN THE NAME OF THE DEAD PERSON - THE SAID MR S. YEEROPPAN IS EN FORCEABLE IN LAW AND THE SUBSIDIARY ISSUE BEING AS TO WHETHER TH E PETITIONER, BEING THE WIFE OF THE SAID MR S. VEERAPPAN, CAN BE COMPELLED TO PARTICIPATE IN THE PROCEEDINGS AND RESPOND TO THE I MPUGNED NOTICE. THE FACT THAT THE SAID MR S. VEEROPPAN DIED ON 26.1.2010 IS NOT IN DISPUTE. IF THIS FACT IS NOT DISPUTED- TH EN THE NOTICE ISSUED IN THE NAME OF THE DEAD PERSON IS UNENFORCEABLE IN THE EYE OF LAW. 15. THE DEPARTMENT SEEKS TO JUSTIFY THEIR STANDBY C ONTENDING THAT THEY WERE NOT INTIMATED ABOUT THE DEATH OF THE ASSE SSEE, THAT THE LEGAL HEIRS DID NOT TAKE ANY STEPS TO CANCEL THE PA N REGISTRATION IN THE NAME OF THE ASSESSEE AND THAT THEREFORE, THE DE PARTMENT WAS JUSTIFIED IN DIRECTING THE PETITIONER TO COOPERATE IN THE PROCEEDINGS PURSUANT TO THE IMPUGNED NOTICE. 16. THE SETTLED LEGAL PRINCIPLE BEING THAT A NOTICE ISSUED IN THE NAME OF THE DEAD PERSON IS UNENFORCEABLE IN LAW. IF SUCH IS THE LEGAL POSITION, WOULD THE REVENUE BE JUSTIFIED IN C ONTENDING THAT THEY, HAVING NO KNOWLEDGE ABOUT THE DEATH OF THE AS SESSEE, ARE ENTITLED TO PLEAD THAT THE NOTICE IS NOT DEFECTIVE. IN MY CONSIDERED VIEW, THE ANSWER TO THE QUESTION SHOULD BE DEFINITE LY AGAINST THE REVENUE. 17. THIS COURT SUPPORTS SUCH A CONCLUSION WITH THE FOLLOWING REASONS: ADMITTEDLY, THE LIMITATION PERIOD FOR ISSUANCE OF N OTICE FOR REOPENING EXPIRED ON 31.3.2017. THE IMPUGNED NOTICE WAS ISSUED 0/1 30.3.2017 IN THE NAME OF THE DEAD PERSON. ON BE ING INTIMATED ABOUT THE DEATH, THE DEPARTMENT SENT THE NOTICE TO THE PETITIONER - HIS SPOUSE TO PARTICIPATE IN THE PROCE EDINGS. THIS NOTICE ITA NO 1134 OF 2019 S SURESH SECUNDERABAD PAGE 6 OF 8 WAS WELL BEYOND THE PERIOD OF LIMITATION, AS IT HAS BEEN ISSUED AFTER 31.8.2017. IF WE APPROACH THE PROBLEM SANS CO MPLICATED FACTS, A NOTICE ISSUED BEYOND THE PERIOD OF LIMITAT ION I.E. 31.3.2017 IS A NULLITY, UNENFORCEABLE IN LAW AND WI THOUT JURISDICTION. THUS, MERELY BECAUSE THE DEPARTMENT W AS NOT INTIMATED ABOUT THE DEATH OF THE ASSESSEE, THAT CAN NOT, BY ITSELF, EXTEND THE PERIOD OF LIMITATION PRESCRIBED UNDER TH E STATUTE. NOTHING HAS BEEN PLACED BEFORE THIS COURT BY THE RE VENUE TO SHOW THAT THERE IS A STATUTORY OBLIGATION ON THE PART OF THE LEGAL REPRESENTATIVES A/THE DECEASED ASSESSEE TO IMMEDIAT ELY INTIMATE THE DEATH OF THE ASSESSEE OR TAKE OR TAKE STEPS TO CANCEL THE PAN REGISTRATION. 18. IN SUCH CIRCUMSTANCES, THE QUESTION WOULD BE AS TO WHETHER SECTIOU159 OF THE ACT WOULD GET ATTRACTED. THE ANSW ER TO THIS QUESTION WOULD BE IN THE NEGATIVE, AS THE PROCEEDIN GS UNDER SECTION 1590F THE ACE CAN BE INVOKED ONLY IF THE PR OCEEDINGS HAVE ALREADY BEEN INITIATED WHEN THE ASSESSEE WAS ALIVE AND WAS PERMITTED FOR THE PROCEEDINGS TO BE CONTINUED AS AG AINST THE LEGAL HEIRS. THE FACTUAL POSITION IN THE INSTANT CASE BEI NG OTHERWISE, THE PROVISIONS OF SECTION 159 OF THE ACT HAVE NO APPLIC ATION. 19. THE REVENUE SEEKS TO BRING THEIR CASE UNDER SEC TION 292 OF THE ACT TO STATE THAT THE DEFECT IS CL CURABLE DEFE CT AND ON THAT GROUND, THE IMPUGNED NOTICE CANNOT BE DECLARED AS I NVALID. 20. THE LANGUAGE EMPLOYED IN SECTION 292 OF THE ACT IS CATEGORICAL AND CLEAR. THE NOTICE HAS TO BE, IN SUBSTANCE AND E FFECT, IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURP OSE OF THE ACT UNDOUBTEDLY, THE ISSUE RELATING TO LIMITATION IS NO T A CURABLE DEFECT FOR THE REVENUE TO INVOKE SECTION 292B OF THE ACT. 21. ALL THE ABOVE REASONS ARE FULLY SUPPORTED BY TH E DECISION IN THE CASE OF VIPIN WALIA. IN THAT CASE, THE NOTICE DATED 27.3.2015 WAS ISSUED UNDER SECTION 148 OF THE ACT TO THE ASSESSEE , WHO DIED ON 14.3.2015. THE VALIDITY OF THE SAID NOTICE WAS PUT TO CHALLENGE. THE INCOME TAX OFFICER TOOK A STAND THAT SINCE THE INTIMATION OF DEATH OF THE ASSESSEE ON 14.3.2015 WAS NOT RECEIVED BY HER, THE NOTICE WAS ISSUED ON Q DEAD PERSON. HOWEVER, THE FA CT REGARDING THE DEATH OF THE ASSESSEE COULD NOT BE DISPUTED BY THE DEPARTMENT. THE DEPARTMENT CONTINUED THE PROCEEDING S UNDER SECTION 147/148 OF THE ACT AND AT THAT STAGE, THE S ON OF THE DECEASED APPROACHED THE HIGH COURT OF DELHI. THE HI GH COURT OF DELHI POINTED OUT THAT WHAT WAS SOUGHT TO BE DONE B Y THE INCOME TAX OFFICER WAS TO INITIATE PROCEEDINGS UNDER SECTI ON 147 OF THE ACT AGAINST THE DECEASED ASSESSEE FOR THE ASSESSMEN T YEAR 2008- 09, FOR WHICH, THE LIMITATION FOR ISSUANCE OF NOTIC E UNDER SECTION 147/148 OF THE ACT WAS 31.3.2015 AND ON 02.7.2015 W HEN THE NOTICE WAS ISSUED, THE ASSESSEE WAS ALREADY DEAD AN TI IF THE DEPARTMENT INTENDED TO PROCEED UNDER SECTION 142 OF THE ACT, IT COULD HAVE DONE SO PRIOR TO 31.3.2015 BY ISSUING TH E NOTICE TO THE LEGAL HEIRS OF THE DECEASED AND BEYOND THAT DATE, IT COULD NOT HAVE PROCEEDED IN THE MATTER EVEN BY ISSUING NOTICE TO T HE LEGAL REPRESENTATIVES OF ITA NO 1134 OF 2019 S SURESH SECUNDERABAD PAGE 7 OF 8 THE ASSESSEE. THE DECISION IN VIPIN WALIA FULLY SUP PORTS THE CASE OF THE PETITIONER HEREIN. 22. THE DECISION IN THE CASE OF VIPIN WALIA WAS FOL LOWED IN THE DECISION OF THE HIGH COURT OF GUJARAT IN THE CASE O F RASID LALA, IN WHICH, THE RE-ASSESSMENT PROCEEDINGS WERE INITIATED AGAINST THE DEAD PERSON, THAT TOO, AFTER A LONG DELAY. THE COUR T POINTED OUT THAT EVEN IF THE PROVISIONS OF SECTION 159 OF THE A CT ARE ATTRACTED, IN THAT CASE ALSO, THE NOTICE WAS REQUIRED TO BE IS SUED AGAINST AND IN THE NAME OF THE HEIRS OF THE DECEASED ASSESSEE A ND UNDER THE SAID CIRCUMSTANCES, SECTION 159 OF THE ACT SHALL NO T BE OF ANY ASSISTANCE TO THE REVENUE. 23. IN THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF SPICE ENTERTAINMENT LTD., ONE OF THE QUESTIONS, WHICH FEL L FOR CONSIDERATION, IS AS TO WHETHER SUCH FRAMING OF ASS ESSMENT AGAINST A NON EXISTING ENTITY OR A DEAD PERSON COUL D BE BROUGHT WITHIN THE AMBIT OF SECTION 292B OF THE ACT AND AFT ER REFERRING TO THE DECISIONS ON THE POINT INCLUDING THE DECISION O F THE ALLAHABAD HIGH COURT IN THE CASE OF SRI NATH SURESH CHAND RAM NARESH V. CIT [REPORTED IN (2006) 280 ITR 396], IT HAS BEEN HELD THAT THE PROVISIONS OF SECTION 292B OF THE ACT ARE NOT APPLICABLE AND THAT FRAMING OF ASSESSMENT AGAINST A NON EXISTI NG ENTITY/PERSON GOES TO THE ROOT OF THE MATTER, WHICH IS NOT A PROCEDURAL IRREGULARITY, BUT A JURISDICTIONAL DEFEC T, AS THERE CANNOT BE ANY ASSESSMENT AGAINST A DEAD PERSON.' 7. HON'BLE MUMBAI HIGH COURT IN THE CASE OF SUMIT BAL KRISHNA GUPTA V. ASSTT. CIT [2019] 103 TAXMANN.COM 188/262 TAXMAN 61 (BOM.) HELD THAT THE NOTICE ISSUED ON A DEAD PERSON IS INVALID UNENFORCEABLE IN LAW. W E EXTRACT THE RELEVANT PART OF THE ORDER OF HON'BLE BOMBAY HIGH COURT IN SUMIT BALKRIS HNA GUPTASUPRA WHICH READS AS UNDER : '7. THE ISSUE OF A NOTICE UNDER SECTION 148 OF THE ACT IS A FOUNDATION FOR REOPENING OF ASSESSMENT. THE SINE QUA NON FOR ACQUI RING 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 R EQUIREMENT BUT IS A CONDITION PRECEDENT TO THE IMPUGNED NOTICE BEING VA LID IN LAW. THUS, A NOTICE WHICH HAS BEEN ISSUED IN THE NAME OF THE DEA D PERSON IS ALSO NOT PROTECTED EITHER BY PROVISIONS OF SECTION 292B OR 2 92BB OF THE ACT. THIS IS SO AS THE REQUIREMENT OF ISSUING A NOTICE IN THE NA ME OF CORRECT PERSON IS THE FOUNDATIONAL REQUIREMENT TO ACQUIRE JURISDICTION TO REOPEN THE ASSESSMENT. THIS IS EVIDENT FROM SECTION 148 OF THE ACT, WHICH REQUIRES THAT BEFORE A PROCEEDING CAN BE TAKEN UP FOR REASSESSMENT, A NOTI CE MUST BE SERVED UPON THE ASSESSEE. THE ASSESSEE ON WHOM THE NOTICE MUST BE SENT MUST BE A LIVING PERSON I.E LEGAL HEIR OF THE DECEASED ASSESSEE, FOR THE SAME TO BE RESPONDED. THIS IN FACT IS THE INTENT AND PURPOSE OF THE ACT. THEREFORE, SECTION 292B OF THE ACT CANNOT BE INVOKED TO CORRECT A FOUNDATIONAL / SUBSTANTIAL ERROR AS IT IS MEANT SO AS TO MEET THE JURISDICTIONAL REQUIREME NT. THEREFORE, BOTH THE IMPUGNED NOTICE DATED 29.3.2018 AND THE IMPUGNED OR DER DATED 13.11.2018 ARE QUASHED AND SET ASIDE. IT IS MADE CLEAR THAT TH IS ORDER WILL NOT PROHIBIT THE REVENUE FROM ISSUING A FRESH NOTICE FOR REASSES SMENT, IF REQUIREMENT OF SECTIONS 147/148 OF THE ACT ARE SATISFIED, INCLUDIN G THE LIMITATION PERIOD THEREIN.' ITA NO 1134 OF 2019 S SURESH SECUNDERABAD PAGE 8 OF 8 THE LEARNED DR DID NOT SUBMIT ANY OTHER CASE LAW OR THE DECISION SUPPORTING THE NOTICE ISSUED ON A DEAD PERSON IS VA LID OR TO CONTROVERT THE SUBMISSIONS MADE BY THE LEARNED AR. THEREFORE, WE H OLD THAT THE NOTICE U/S 148 ON A DEAD PERSON IS INVALID AND ACCORDINGLY QUA SHED. CONSEQUENT ASSESSMENTS MADE U/S 144 R.W.S 147 IS ANNULLED. 8. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . 7. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL, THIS APPEAL OF TH E ASSESSEE IS ALLOWED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND FEB, 2021. SD/- (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 22 ND FEB. 2021. VINODAN/SPS COPY TO: 1 SR. S. MAHESH L/R OF LATE SRI S. SURESH, H.NO.5-5 -9/4 YARPAL, ALWAL, HYDERABAD 2 ITO WARD 15(1) IT TOWERS, AC GUARDS, HYDERABAD 3 CIT (A)-7 HYDERABAD 4 PR. CIT 7 HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER