SMT. RAMPYARI, SARADDHANA V. ITO, WARD-2(3), AJMER

ITA 1249/JPR/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5435 (ITAT-JAIPUR)
• Duration Of Justice: 11 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 05-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANCHAL MEENA CIT DHK
• Keywords: Invalid notice; Period of limitation; Time period of passing order; Set aside
• Section: 143(3); 142(1); 292BB; 143(2); 139(1); 48; 13; 147; 148; 28

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH VC A, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,O A JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO. 1249/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12. SMT. RAMPYARI W/O LATE SHRI SANWARLAL CHOUDHARY, KHOJO KI GALI, PURANI PANI KI TANKI KE PASS, SARADHANA, AJMER. CUKE VS. INCOME TAX OFFICER, WARD 2(3), AJMER. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAZPC 3613 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SANJEEV JAIN (CA) JKTLO DH VKSJ LS@ REVENUE BY : MS CHANCHAL MEENA (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21.09.2020. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 05/10/2020. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE THROUGH LEGAL REPRESEN TATIVE IS DIRECTED AGAINST THE ORDER OF LD. CIT (A), AJMER DATED 19 TH AUGUST, 2019 FOR THE ASSESSMENT YEAR 2011-12. THE ASSESSEE HAS RAISED THE FOLLOWING GRO UNDS :- 1. LD. CIT (APPEALS) ERRED IN LAW AS WELL AS ON F ACTS OF THE CASE BY CONFIRMING ACTION OF THE AO IN ISSUING NOTICE U/S 1 48 IN THE NAME OF THE DECEASED ASSESSEE. 2. LD. CIT (APPEALS) ERRED IN LAW AS WELL AS ON FAC TS OF THE CASE BY CONFIRMING ACTION OF THE AO IN ESTIMATING AGRICULTU RE INCOME OF THE ASSESSEE AT RS. 100000/-, INSTEAD OF RS. 2,50,0 00/- AS DECLARED BY THE ASSESSEE IN RETURN OF INCOME. 2 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. 3. LD. CIT (APPEALS) ERRED IN LAW AS WELL AS ON FAC TS OF THE CASE BY CONFIRMING ADDITION OF RS. 5,92,000/- BY TREATING A MOUNT DEPOSITED IN BANK ACCOUNT OF THE ASSESSEE AS UNEXPL AINED DEPOSIT. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, DE LETE OR MODIFY ANY OF THE ABOVE GROUNDS OF APPEAL BEFORE OR AT THE TIM E OF HEARING. THE HEARING OF THE APPEAL IS CONCLUDED THROUGH VIDE O CONFERENCE DUE TO PREVAILING CONDITION OF COVID 19 PANDEMIC. GROUND NO. 1 IS REGARDING VALIDITY OF NOTICE ISSUED UNDER SECTION 148 IN THE NAME OF THE DECEASED ASSESSEE. 2. THE ASSESSEE LATE SHRI SANWARLAL CHOUDHARY DIED ON 12.06.2012. HE WAS RETIRED GOVERNMENT EMPLOYEE AND WAS HAVING INCOME F ROM PENSION BESIDES AGRICULTURAL INCOME. THE AO RECEIVED THE INFORMATI ON ABOUT THE DEPOSIT OF CASH IN THE BANK ACCOUNT OF THE ASSESSEE DURING THE PREVIOU S YEAR RELEVANT TO ASSESSMENT YEAR 2011-12 OF RS. 10,99,500/- IN SAVINGS BANK ACC OUNT AND TIME DEPOSIT OF RS. 5,00,000/-. ACCORDINGLY, THE AO ISSUED NOTICE UNDE R SECTION 148 ON 28 TH MARCH, 2018 IN THE NAME OF DECEASED ASSESSEE. THE LEGAL R EPRESENTATIVE OF THE ASSESSEE RAISED THE OBJECTION AGAINST THE VALIDITY OF NOTICE UNDER SECTION 148 VIDE LETTER DATED 05.07.2018 WHICH WAS DISPOSED OFF BY THE AO VIDE OR DER DATED 21 ST NOVEMBER, 2018. CONSEQUENTLY, THE AO COMPLETED THE ASSESSME NT UNDER SECTION 143(3) READ WITH SECTION 147 WHEREBY AN ADDITION OF RS. 5,92,00 0/- HAS BEEN MADE ON ACCOUNT OF UNEXPLAINED CASH DEPOSIT IN THE BANK ACCOUNT BY RESTRICTING THE AGRICULTURAL INCOME FROM RS. 2,50,000/- TO RS. 1,00,000/-. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE LD. CIT (A) AND ALSO CHALLENGE D THE VALIDITY OF REOPENING, HOWEVER, COULD NOT SUCCEED. 3 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. 3. BEFORE US, THE LD. A/R OF THE ASSESSEE HAS SUBMI TTED THAT THE AO HAS ISSUED THE NOTICE UNDER SECTION 148 ON 28 TH MARCH, 2018 IN THE NAME OF THE DECEASED ASSESSEE WHO HAD PASSED AWAY ON 12.06.2012, THEREFO RE, THE NOTICE ISSUED IN THE NAME OF THE DECEASED PERSON IS INVALID AND LIABLE T O BE QUASHED. HE HAS FURTHER CONTENDED THAT IN THE ABSENCE OF ANY NOTICE ISSUED UNDER SECTION 148 TO THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE WITHIN THE PERIOD OF LIMITATION WHICH EXPIRED ON 31 ST MARCH, 2018, THE PROCEEDINGS INITIATED BY THE AO U NDER SECTION 147/148 ARE NOT VALID AND A NULLITY IN THE EYES OF LAW. IN SUPPORT OF HIS CONTENTION HE HAS RELIED UPON THE FOLLOWING DECISIONS :- VIPIN WALIA VS. ITO 382 ITR 19 (DELHI) RAJENDER KUMAR SEHGAL VS. ITO 414 ITR 286 (DELHI) TRIBUNALS ORDER DATED 26 TH NOVEMBER, 2019 IN ITA NO. 989/JP/2015 (JAIPUR) 4. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T THE AO HAS CONDUCTED AN ENQUIRY TO VERIFY THE SOURCE OF CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE PRIOR TO ISSUING THE NOTICE UNDER SECTION 148. HOW EVER, THERE WAS NO RESPONSE FROM THE ASSESSEE OR OF THE LEGAL REPRESENTATIVE OF THE ASSESSEE TO THE SAID ENQUIRY CONDUCTED BY THE AO. THE LD. D/R HAS FURTHER SUBMI TTED THAT THE ASSESSEE HAS NOT FILED ANY RETURN OF INCOME UNDER SECTION 139(1) OF THE IT ACT DESPITE THE FACT THAT THE CASH DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSE E IS MORE THAN THE THRESHOLD AMOUNT LIABLE TO TAX. THEREFORE, THE AO HAD THE BEL IEF THAT INCOME ASSESSABLE TO TAX 4 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. HAS ESCAPED ASSESSMENT. THE LD. D/R HAS RELIED UPO N THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THERE IS NO DISPUTE THAT THE AO HAS ISSUED NOTICE UNDER SECTION 148 DATED 28 TH MARCH, 2018 IN THE NAME OF THE DECEASED ASSESSEE W HO HAD EXPIRED ON 12.06.2012. THIS FACT IS NOT IN DISPUTE AS THE AO SUBSEQUENTLY BROUGHT THE LEGAL HEIR OF THE DECEASED ASSESSEE ON RECORD. HOWEVER, THE SAID EXERCISE OF THE AO TO BRING THE LEGAL HEIR OF THE DECEASED ASSESSEE ON RE CORD WOULD NOT TURN THE INVALID NOTICE ISSUED UNDER SECTION 148 INTO VALID ONE. TH OUGH THE AO HAS STATED THAT A LETTER WAS WRITTEN TO THE ASSESSEE TO EXPLAIN THE S OURCE OF CASH AND TIME DEPOSIT IN THE BANK ACCOUNT OF THE ASSESSEE, HOWEVER NO REFERE NCE OF DATE OF LETTER IS MENTIONED BY THE AO. THEREFORE, IN THE ABSENCE OF A NY DETAILS OR COPY OF THE LETTER THESE AVERMENTS MADE BY THE AO ARE VERY VAGUE. FUR THER, ONCE THE NOTICE UNDER SECTION 148 WAS ISSUED IN THE NAME OF THE DECEASED ASSESSEE AND SUBSEQUENTLY THE AO CAME TO KNOW THAT THE ASSESSEE HAD ALREADY EXPIR ED, THEN IT WAS INCUMBENT UPON THE AO TO SERVE A FRESH NOTICE UNDER SECTION 1 48 ON THE LEGAL HEIR, IF LIMITATION FOR ISSUING THE NOTICE IS AVAILABLE. IN THE CASE I N HAND IT IS APPARENT THAT THE NOTICE UNDER SECTION 148 WAS ISSUED IN THE NAME OF THE DEC EASED ASSESSEE ON 28 TH MARCH, 2018 AND THE AO HAS NOT ISSUED ANY FURTHER NOTICE T O THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE. IT IS ALSO NOT IN DISPUTE T HAT THE LEGAL REPRESENTATIVE OF THE ASSESSEE RAISED THE OBJECTION AGAINST THE NOTICE IS SUED UNDER SECTION 148 VIDE LETTER DATED 05.07.2018 WHICH WAS DISPOSED OFF BY THE AO V IDE ORDER DATED 21 ST 5 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. NOVEMBER, 2018 AND THE ISSUE REGARDING VALIDITY OF THE NOTICE ISSUED IN THE NAME OF THE DECEASED PERSON IS DECIDED BY THE AO AS UNDER : - OBJECTION 2 : NOTICE ISSUED IN THE NAME OF THE P ERSON WHO HAS ALREADY BEEN DEMISED. DISPOSAL : ON EXAMINATION OF THE DETAILS AVAILABLE WITH THE INCOME TAX DEPARTMENT AND FACTS AVAILABLE ON THE RECORD, IT IS EVIDENTLY CLEAR THAT LEGAL HEIRS OF T HE ASSESSEE HAS NOT INFORMED THE DEPARTMENT ABOUT THE ASSESSEES DEATH. IT HAS BEEN ALREADY MENTIONED IN THE REASONS FOR RECORD THAT ASSESSEE HAS ONLY FILED RETURN OF INCOME FOR A.Y. 2008-09. HENCE, THE RETURN WITH REGARD TO INTIMATION OF THE LEGAL HEIR OF THE DEMISED PERSONS IS NEVER AVAILABL E WITH THE ASSESSING OFFICER. HENCE, THE ASSESSING OFFICER RIGHTLY ISSUED THE NOTICE U/S 148 AND LATER ON THE PROCEEDINGS ARE CONTINUED WITH THE LEGAL HEIR OF THE ASSESSEE I.E. HIS SPOUSE SMT. RAMPYARI. SO THE VERSION OF THE ASSESSEE IS NOT ACCEPTABLE AND DISMISSED ACCORDINGLY. FROM THE ABOVE IT IS CLEARLY THAT THE INFORMATION A BOUT THE INCOME AND EXPIRY OF THE ASSESSEE IS NEVER FURNISHED BEFORE TH E ASSESSING OFFICER BEFORE ISSUANCE OF THE NOTICE U/S 148 OF THE ACT. N EITHER THE LEGAL HEIR OF THE ASSESSEE HAS APPLIED BEFORE THE ASSESSING OF FICER ABOUT DELETING OF THE PAN AS THE ASSESSEE HAS EXPIRED. IN VIEW OF THE ABOVE DISCUSSIONS, YOUR OBJECTIONS A GAINST REOPENING OF THE CASE DO NOT HOLD ANY MERIT AND THEY ARE HEREBY REJECTED. YOU ARE REQUESTED TO COMPLY WITH THE NOTICE U/S 143(2) AND NOTICE U/S 142(1) ISSUED TO YOU IN CONTINUATION OF THE PROCEEDINGS. 6 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. THUS IT IS CLEAR THAT THE AO HAS SHIFTED THE BLAME ON THE LEGAL HEIR OF THE ASSESSEE REGARDING THE INFORMATION OF DEATH OF THE ASSESSEE INSTEAD OF CONDUCTING THE ENQUIRY TO FIND OUT THE FACT. SINCE IT IS NOT A CASE OF PE NDING ASSESSMENT PROCEEDINGS BUT THE AO PROPOSED TO ASSESS THE INCOME UNDER SECTION 147/148 OF THE ACT, THEN IT IS INCUMBENT UPON THE AO TO ISSUE THE NOTICE UNDER SEC TION 148 TO THE RIGHT PERSON. THE SUBSEQUENT PARTICIPATION OF THE LEGAL HEIR IN T HE ASSESSMENT PROCEEDINGS WOULD NOT RENDER THE PROCEEDINGS VALID WHEN THE INITIATIO N OF THE PROCEEDINGS ITSELF ARE INVALID FOR WANT OF A VALID NOTICE UNDER SECTION 14 8. THE HONBLE DELHI HIGH COURT IN CASE OF RAJENDER KUMAR SEHGAL VS. ITO (SUPRA) HAS C ONSIDERED THIS ISSUE IN PARA 6 TO 12 AS UNDER :- 6. THE PROVISION RELEVANT TO DECIDE THE FIRST ISSUE I S SECTION 159 OF THE ACT, WHICH READS AS FOLLOWS: '159. (1) WHERE A PERSON DIES, HIS LEGAL REPRESENTA TIVE SHALL BE LIABLE TO PAY ANY SUM WHICH THE DECEASED WOULD HAVE BEEN LIABLE T O PAY IF HE HAD NOT DIED, IN THE LIKE MANNER AND TO THE SAME EXTENT AS THE DE CEASED. (2) FOR THE PURPOSE OF MAKING AN ASSESSMENT (INCLUD ING AN ASSESSMENT, REASSESSMENT OR RE-COMPUTATION UNDER SECTION 147) O F THE INCOME OF THE DECEASED AND FOR THE PURPOSE OF LEVYING ANY SUM IN THE HANDS OF THE LEGAL REPRESENTATIVE IN ACCORDANCE WITH THE PROVISIONS OF SUB-SECTION (1),- (A) ANY PROCEEDING TAKEN AGAINST THE DECEASED BEFORE HI S DEATH SHALL BE DEEMED TO HAVE BEEN TAKEN AGAINST THE LEGAL REPRESENTATIVE AND MAY BE CONTINUED AGAINST THE LEGAL 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 AGAINST THE DECEASED IF HE HAD SURVIVED, MAY BE TAKEN AGAINST THE LEGAL REPRESENTATIVE; AND (C) ALL THE PROVISIONS OF THIS ACT SHALL APPLY ACCORDIN GLY. (3) THE LEGAL REPRESENTATIVE OF THE DECEASED SHALL, FOR THE PURPOSES OF THIS ACT, BE DEEMED TO BE AN ASSESSEE. 7 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. (4) EVERY LEGAL REPRESENTATIVE SHALL BE PERSONALLY LIABLE FOR ANY TAX PAYABLE BY HIM IN HIS CAPACITY AS LEGAL REPRESENTATIVE IF, WHI LE HIS LIABILITY FOR TAX REMAINS UNDISCHARGED, HE CREATES A CHARGE ON OR DISPOSES OF OR PARTS WITH ANY ASSETS OF THE ESTATE OF THE DECEASED, WHICH ARE IN, OR MAY COME INTO, HIS POSSESSION, BUT SUCH LIABILITY SHALL BE LIMITED TO THE VALUE OF THE ASSET SO CHARGED, DISPOSED OF OR PARTED WITH. (5) THE PROVISIONS OF SUB-SECTION (2) OF SECTIONS 1 61, 162 AND 167 SHALL, SO FAR AS MAY BE AND TO THE EXTENT TO WHICH THEY ARE NOT I NCONSISTENT WITH THE PROVISIONS OF THIS SECTION, APPLY IN RELATION TO A LEGAL REPRESENTATIVE. (6) THE LIABILITY OF A LEGAL REPRESENTATIVE UNDER T HIS SECTION SHALL, SUBJECT TO THE PROVISIONS OF SUB-SECTION (4) AND SUB-SECTION ( 5), BE LIMITED TO THE EXTENT TO WHICH THE ESTATE IS CAPABLE OF MEETING THE LIABILIT Y.' 7. AFTER NOTICING THE FACTS OF THE CASE, THE DIVISION BENCH, IN VIPIN WALIA (SUPRA) (WHERE AGAIN THE REASSESSMENT NOTICE WAS ISSUED IN THE NAME OF THE DECEASED AND NO NOTICE WAS ISSUED TO THE LEGAL REPRESENTATIVE), HELD THAT: '11. SECTION 159 (2) OF THE ACT MAKES A SPECIFIC RE FERENCE TO A REASSESSMENT PROCEEDING UNDER SECTION 147 OF THE AC T. WHILE SECTION 159 (2) (A) OF THE ACT TALKS OF A PROCEEDING ALREAD Y TAKEN AGAINST AN ASSESSEE 'BEFORE HIS DEATH'. SECTION 159 (2) (B) OF THE ACT ENVISAGES ANY PROCEEDING WHICH COULD HAVE BEEN TAKEN AGAINST THE DECEASED IF HE HAD SURVIVED. IT PERMITS SUCH A PROCEEDING TO BE TA KEN AGAINST THE LRS OF THE DECEASED ASSESSEE EVEN IF IT HAD NOT TAKEN W HILE THE ASSESSEE WAS ALIVE. SECTION 159 (2) (B) IS RELEVANT AS FAR A S THE PRESENT CASE IS CONCERNED. 12. WHAT WAS SOUGHT TO BE DONE BY THE ITO WAS TO IN ITIATE PROCEEDINGS UNDER SECTION 147 OF THE ACT AGAINST THE DECEASED ASSESSE E FOR AY 2008-09. THE LIMITATION FOR ISSUANCE OF THE NOTICE UNDER SECTION 147 /148 OF THE ACT WAS 31ST MARCH 2015. ON 27TH MARCH 2015, WHEN THE NOTICE WAS ISSUED, THE ASSESSEE WAS ALREADY DEAD. IF THE DEPARTMENT INTENDED TO PRO CEED UNDER SECTION 147 OF THE ACT, IT COULD HAVE DONE SO PRIOR TO 31ST MARCH 2015 BY ISSUING A NOTICE TO THE LRS OF THE DECEASED. BEYOND THAT DATE IT COULD NOT HAVE PROCEEDED IN THE MATTER EVEN BY ISSUING NOTICE TO THE LRS OF THE ASS ESSEE.' 8. THIS COURT SEES NO REASON TO DISAGREE WITH THE DEC ISION IN VIPIN WALIA (SUPRA); THE SUMMATION OF THE PRINCIPLE APPLI CABLE, GIVEN THE PLAIN WORDS OF THE STATUTE ARE UNEXCEPTIONABLE. THE REVEN UE'S ARGUMENT THAT THE 'DEFECT' WAS CURABLE, IN REGARD TO THE ISSUANCE OF NOTICE, TO A DECEASED INDIVIDUAL, IS, IN THE OPINION OF THIS COURT, UNTEN ABLE. THE PHRASEOLOGY OF SECTION 292BB PRECLUDES THE CONTENTION. THAT PROVIS ION READS AS FOLLOWS: '292BB. NOTICE DEEMED TO BE VALID IN CERTAIN CIRCUM STANCES.-WHERE AN ASSESSEE HAS APPEARED IN ANY PROCEEDING OR COOPERAT ED IN ANY INQUIRY RELATING TO AN ASSESSMENT OR REASSESSMENT, IT SHALL BE DEEMED THAT ANY NOTICE UNDER ANY PROVISION OF THIS ACT, WHICH IS RE QUIRED TO BE SERVED UPON HIM, HAS BEEN DULY SERVED UPON HIM IN TIME IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT AND SUCH ASSESSEE SHALL BE PRECLUDED FROM 8 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. TAKING ANY OBJECTION IN ANY PROCEEDING OR INQUIRY U NDER THIS ACT THAT THE NOTICE WAS- (A) NOT SERVED UPON HIM; OR (B) NOT SERVED UPON HIM IN TIME; OR (C) SERVED UPON HIM IN AN IMPROPER MANNER: PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPLETION OF SUCH ASSESSMENT OR REASSESSMENT.' 9. IF THE ORIGINAL ASSESSEE HAD LIVED AND LATER PARTI CIPATED IN THE PROCEEDINGS, THEN, BY REASON OF SECTION 292BB, SHE WOULD HAVE BE EN PRECLUDED FROM SAYING THAT NO NOTICE WAS FACTUALLY SERVED UPON HER. WHEN THE NOTICE WAS ISSUED IN HER NAME- WHEN SHE WAS NO LONGER OF THIS WORLD, IT IS INCONCEIVABLE THAT SHE COULD HAVE PARTICIPATED IN THE REASSESSMENT PROCEED INGS, (NOR IS THAT THE REVENUE'S CASE) TO BE ESTOPPED FROM CONTENDING THAT SHE DID NOT RECEIVE IT. THE PLAIN LANGUAGE OF SECTION 292BB, IN OUR OPINION PRE CLUDES ITS APPLICATION, CONTRARY TO THE REVENUE'S ARGUMENT. 10. AS FAR AS PANKAJBHAI RAMESHBHAI ZALAVADIYA (SUPRA) IS CONCERNED, THIS COURT NOTICES THAT THE JUDGMENT IS AN AUTHORITY ON THE PROPOSITION THAT REJECTION OF AN APPLICATION UNDER ORDER XXII RULE 4 CPC WITHOUT ADJUDICATING ITS MERITS IS NOT PER SE A BAR FOR IMP LEADMENT OF THE LEGAL HEIRS AND SUCCESSORS OF A PARTY UNDER ORDER-I RULE 10(2) CPC. THIS COURT IS OF OPINION THAT THE ABSENCE OF ANY PROVISION IN THE AC T, TO FASTEN REVENUE LIABILITY UPON A DECEASED INDIVIDUAL, IN THE ABSENCE OF PENDI NG OR PREVIOUSLY INSTITUTED PROCEEDING WHICH IS REALLY WHAT THE PRESENT CASE IS ALL ABOUT, RENDERS FATAL THE EFFORT OF THE REVENUE TO IMPOSE THE TAX BURDEN UPON A LEGAL REPRESENTATIVE. 11. AS FAR AS THE SECOND ARGUMENT, WITH REGARD TO THE CLARIFICATION IS CONCERNED, THIS COURT IS UNPERSUADED BY THE REVENUE 'S ARGUMENT. THE PETITIONER'S OBJECTION THAT THE TRANSACTION WITH AN ENTITY ATTRIBUTED TO THE DECEASED WAS UNSUPPORTED BY THE BOOKS FURNISHED TO THE REVENUE, WAS STRAIGHTAWAY REJECTED. HOWEVER, THE 'REASONS TO BEL IEVE' ARE PREMISED UPON SUCH A TRANSACTION WITH ONE VARUN CAPITAL SERVICES LTD. (AS IS EVIDENT FROM THE TABLE AT APPENDIX B TO THAT DOCUMENT). AFTER RE JECTION, OF THE OBJECTION, WHICH MEANT THAT ACCORDING TO THE REVENUE, SUCH A T RANSACTION WAS INDEED RECORDED IN THE DECEASED'S BOOKS, THE REVENUE ATTEM PTED TO 'CORRECT' THE 'ERROR' BY CHANGING THE NAME OF THE ENTITY (WITH WH OM THE SUSPECT TRANSACTION OCCURRED). THIS COURT IS OF OPINION THAT SUCH 'CORR ECTION' IS NEITHER INNOCUOUS NOR INNOCENT; IT WAS CLEARLY AIMED AT IMPROVING WHA T WAS A FATALLY DEFECTIVE 'REASONS TO BELIEVE' AND MASK THE REALITY, TO WIT, THAT THE REVENUE AUTHORITIES UTTERLY FAILED TO APPLY THEIR MINDS TO THE FACTS AN D CIRCUMSTANCES OF THE CASE. ON THE LAST ISSUE, I.E. THE FATALITY ATTACHED TO TH E COMPLETED REASSESSMENT IN THE ABSENCE OF A NOTICE UNDER SECTION 143 (2), THIS COU RT NOTICES THAT THE OMISSION RENDERS THE ASSESSMENT (OR REASSESSMENT AS IN THIS CASE) VOID A PROPOSITION OF LAW ENUNCIATED IN ASSTT. CIT V. HOTEL BLUE MOON [2010] 188 TAXMAN 113/321 ITR 362 (SC) . 9 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. 12. IN VIEW OF THE FOREGOING CONCLUSIONS, THE IMPUGNED REASSESSMENT NOTICE AND ALL CONSEQUENT PROCEEDINGS- INCLUDING THE REASS ESSMENT ORDER-HAVE TO BE AND ARE, HEREBY QUASHED. THE WRIT PETITION IS ACCOR DINGLY ALLOWED, BUT WITHOUT ORDER ON COSTS. THE HONBLE HIGH COURT HAS HELD THAT A NOTICE ISSUE D UNDER SECTION 148 IN THE NAME OF THE DECEASED PERSON SUFFERS FROM ILLEGALITY WHIC H IS NOT A CURABLE DEFECT. SIMILARLY, THIS TRIBUNAL IN THE CASE OF LATE SHRI B HURA RAM VS. ITO (SUPRA) HAS CONSIDERED THIS ISSUE IN PARA 8 TO 11 AS UNDER :- 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE, SHRI BHURA RAM HAD EXPIRED ON 26.11.2008 AS PER DEATH CE RTIFICATE DATED 11.02.2009 ISSUED BY JAIPUR MUNICIPAL CORPORATION. THE REASONS FOR REOPENING THE ASSESSMENT U/S 147 WERE RECORDED ON 1 5.03.2013 AND THEREAFTER THE NOTICE U/S 148 WAS ISSUED IN THE NAM E OF ASSESSEE ON 20.03.2013. THEREFORE, AT THE TIME OF ISSUANCE OF T HE NOTICE U/S 148, THE ASSESSEE HAD ALREADY EXPIRED AND THE NOTICE WAS THUS ISSUED IN THE NAME OF DECEASED ASSESSEE. FURTHER, WE FIND THAT TH ERE IS NO SUBSEQUENT NOTICE U/S 148 WHICH HAS BEEN ISSUED BY THE ASSESSING OFFICER ON THE LEGAL HEIRS OF THE DECEASED ASSESSEE . IN THIS REGARD, WE REFER TO THE DECISION OF DELHI HIGH COURT IN CASE O F VIPIN WALIA VS. ITO (SUPRA) WHEREIN REFERRING TO THE PROVISIONS OF SECT ION 159 OF THE ACT, IT WAS HELD AS UNDER: 11. SECTION 159(2) OF THE ACT MAKES A SPECIFIC RE FERENCE TO A REASSESSMENT PROCEEDING UNDER SECTION 147 OF THE ACT. WHILE SECTION 159(2)(A) OF THE ACT TALKS OF A PROCE EDING ALREADY TAKEN AGAINST AN ASSESSEE 'BEFORE HIS DEATH '. SECTION 159(2)(B) OF THE ACT ENVISAGES ANY PROCEEDING WHICH COULD 10 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. HAVE BEEN TAKEN AGAINST THE DECEASED IF HE HAD SURV IVED. IT PERMITS SUCH A PROCEEDING TO BE TAKEN AGAINST THE L RS OF THE DECEASED ASSESSEE EVEN IF IT HAD NOT TAKEN WHILE TH E ASSESSEE WAS ALIVE. SECTION 159(2)(B) IS RELEVANT AS FAR AS THE PRESENT CASE IS CONCERNED. 12. WHAT WAS SOUGHT TO BE DONE BY THE ITO WAS TO I NITIATE PROCEEDINGS UNDER SECTION 147 OF THE ACT AGAINST TH E DECEASED ASSESSEE FOR AY 2008-09. THE LIMITATION FOR ISSUANC E OF THE NOTICE UNDER SECTION 147/148 OF THE ACT WAS 31ST MA RCH 2015. ON 27TH MARCH 2015, WHEN THE NOTICE WAS ISSUED, THE ASSESSEE WAS ALREADY DEAD. IF THE DEPARTMENT INTEND ED TO PROCEED UNDER SECTION 147 OF THE ACT, IT COULD HAVE DONE SO PRIOR TO 31ST MARCH 2015 BY ISSUING A NOTICE TO THE LRS OF THE DECEASED. BEYOND THAT DATE IT COULD NOT HAVE PROCEE DED IN THE MATTER EVEN BY ISSUING NOTICE TO THE LRS OF THE ASS ESSEE. 9. SIMILAR VIEW HAS BEEN TAKEN EARLIER BY THE HON BLE ALLAHABAD HIGH COURT IN CASE OF CIT VS. SURESH CHANDRA JAISWA L (SUPRA) WHEREIN IT WAS HELD AS UNDER:- IN THE PRESENT CASE, THE NOTICE U/S 148 WAS ADDRES SED TO AN ASSESSEE WHO WAS ALREADY DEAD EVEN ON THE DATE O F ISSUE OF NOTICE. THE NOTICE WAS ISSUED ON 28TH MARC H, 1985, WHILE THE ASSESSEE, GANGA PRASAD JAISWAL HAD DIED ON 20TH MARCH, 1985. THE NOTICE WAS NOT SERVED UPON THE LEGAL REPRESENTATIVES OF GANGA PRASAD JAISWAI BUT I T WAS SERVED ON ONE KESHAV RAM, MUNIM. EVEN THE NAME OF T HE DECEASED ASSESSEE WAS NOT CORRECTLY MENTIONED IN TH E NOTICE. THE NOTICE WAS ADDRESSED TO GANGA PRASAD JA ISWAI WHILE THE CORRECT NAME OF THE ASSESSEE WAS GANGA RA M 11 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. JAISWAL. THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE DEFECTS IN THE NOTICE UNDER S. 148 WERE NOT CURED BY S. 292 B. 10. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE MADR AS HIGH COURT IN CASE OF ALAMELU VEERAPPAN VS ITO (SUPRA), FOLLOW ING THE DECISION OF THE HONBLE DELHI HIGH COURT IN CASE OF VIPIN WALIA , WHEREIN IT WAS HELD AS UNDER: 14. THE ISSUE, WHICH FALLS FOR CONSIDERATION, IS A S TO WHETHER THE IMPUGNED NOTICE UNDER SECTION 148 OF THE ACT IS SUED IN THE NAME OF THE DEAD PERSON - THE SAID MR.S.VEERAPPAN I S ENFORCEABLE IN LAW AND THE SUBSIDIARY ISSUE BEING A S TO WHETHER THE PETITIONER, BEING THE WIFE OF THE SAID MR.S.VEE RAPPAN, CAN BE COMPELLED TO PARTICIPATE IN THE PROCEEDINGS AND RESPOND TO THE IMPUGNED NOTICE. THE FACT THAT THE SAID MR.S.VE ERAPPAN DIED ON 26.1.2010 IS NOT IN DISPUTE. IF THIS FACT I S NOT DISPUTED, THEN THE NOTICE ISSUED IN THE NAME OF THE DEAD PERS ON IS UNENFORCEABLE IN THE EYE OF LAW. 15. THE DEPARTMENT SEEKS TO JUSTIFY THEIR STAND BY CONTENDING THAT THEY WERE NOT INTIMATED ABOUT THE DEATH OF THE ASSESSEE, THAT THE LEGAL HEIRS DID NOT TAKE ANY STEPS TO CANC EL THE PAN REGISTRATION IN THE NAME OF THE ASSESSEE AND THAT T HEREFORE, THE DEPARTMENT WAS JUSTIFIED IN DIRECTING THE PETITIONE R TO CO- OPERATE 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 DEFINITELY AGAINST THE REVENUE. 12 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. 17. THIS COURT SUPPORTS SUCH A CONCLUSION WITH THE FOLLOWING REASONS : ADMITTEDLY, THE LIMITATION PERIOD FOR ISS UANCE OF NOTICE FOR REOPENING EXPIRED ON 31.3.2017. THE IMPUGNED NO TICE WAS ISSUED ON 30.3.2017 IN THE NAME OF THE DEAD PERSON. ON BEING INTIMATED ABOUT THE DEATH, THE DEPARTMENT SENT THE NOTICE TO THE PETITIONER - HIS SPOUSE TO PARTICIPATE IN THE P ROCEEDINGS. THIS NOTICE WAS WELL BEYOND THE PERIOD OF LIMITATION, AS IT HAS BEEN ISSUED AFTER 31.3.2017. IF WE APPROACH THE PROBLEM SANS COMPLICATED FACTS, A NOTICE ISSUED BEYOND THE PERIO D OF LIMITATION I.E. 31.3.2017 IS A NULLITY, UNENFORCEAB LE IN LAW AND WITHOUT JURISDICTION. THUS, MERELY BECAUSE THE DEPA RTMENT WAS NOT INTIMATED ABOUT THE DEATH OF THE ASSESSEE, THAT CANNOT, BY ITSELF, EXTEND THE PERIOD OF LIMITATION PRESCRIBED UNDER THE STATUTE. NOTHING HAS BEEN PLACED BEFORE THIS COURT BY THE REVENUE TO SHOW THAT THERE IS A STATUTORY OBLIGATIO N ON THE PART OF THE LEGAL REPRESENTATIVES OF THE DECEASED ASSESS EE TO IMMEDIATELY INTIMATE THE DEATH OF THE ASSESSEE OR T AKE STEPS TO CANCEL THE PAN REGISTRATION. 18. IN SUCH CIRCUMSTANCES, THE QUESTION WOULD BE AS TO WHETHER SECTION 159 OF THE ACT WOULD GET ATTRACTED. THE ANS WER TO THIS QUESTION WOULD BE IN THE NEGATIVE, AS THE PROCEEDIN GS UNDER SECTION 159 OF THE ACT CAN BE INVOKED ONLY IF THE P ROCEEDINGS HAVE ALREADY BEEN INITIATED WHEN THE ASSESSEE WAS A LIVE AND WAS PERMITTED FOR THE PROCEEDINGS TO BE CONTINUED A S AGAINST THE LEGAL HEIRS. THE FACTUAL POSITION IN THE INSTAN T CASE BEING OTHERWISE, THE PROVISIONS OF SECTION 159 OF THE ACT HAVE NO APPLICATION. 19. THE REVENUE SEEKS TO BRING THEIR CASE UNDER SEC TION 292 OF THE ACT TO STATE THAT THE DEFECT IS A CURABLE DEFEC T AND ON THAT GROUND, THE IMPUGNED NOTICE CANNOT BE DECLARED AS I NVALID. 13 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. 20. THE LANGUAGE EMPLOYED IN SECTION 292 OF THE ACT IS CATEGORICAL AND CLEAR. THE NOTICE HAS TO BE, IN SUB STANCE AND EFFECT, IN CONFORMITY WITH OR ACCORDING TO THE INTE NT AND PURPOSE OF THE ACT. UNDOUBTEDLY, THE ISSUE RELATING TO LIMI TATION IS NOT A CURABLE DEFECT FOR THE REVENUE TO INVOKE SECTION 29 2B OF THE ACT. 11. IN VIEW OF THE AFORESAID LEGAL PROPOSITION SO L AID DOWN BY THE VARIOUS COURTS, IN THE INSTANT CASE, THE NOTICE ISS UED U/S 148 IN THE NAME OF THE DECEASED ASSESSEE IS A NULLITY IN THE E YES OF LAW. FURTHER, NO NOTICE U/S 148 HAS BEEN ISSUED IN THE NAME OF TH E LEGAL HEIRS AND THEREFORE, THE PROVISIONS OF SECTION 159 CANNOT BE INVOKED IN THE INSTANT CASE. CONSEQUENTLY, THE PRESENT REASSESSME NT PROCEEDINGS INITIATED BY ISSUANCE NOTICE ON THE DECEASED ASSESS EE ARE BEING QUASHED FOR WANT OF JURISDICTION. IN VIEW OF THE A BOVE, REST ALL GROUNDS TAKEN BY THE ASSESSEE HAVE BECOME ACADEMIC IN NATUR E AND THE SAME ARE DISMISSED AS INFRUCTUOUS. THE TRIBUNAL AFTER CONSIDERING THE DECISION OF HON BLE DELHI HIGH COURT IN CASE OF VIPIN WALIA VS. ITO (SUPRA) AS WELL AS THE DECISION OF HONBLE MADRAS HIGH COURT IN CASE OF ALAMELU VEERAPPAN VS. ITO, 95 TAXMANN.COM 1 55 (MADRAS) HAS HELD THAT NOTICE ISSUED UNDER SECTION 148 IN THE NAME OF THE DECEASED ASSESSEE IS A NULLITY IN THE EYES OF LAW. CONSEQUENTLY, THE PROCEEDINGS INI TIATED UNDER SECTION 147/148 ARE VITIATED AND LIABLE TO BE QUASHED. ACCORDINGLY IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND FOLLOWING THE DECISIONS AS DISCUSSED ABOVE , WE HOLD THAT THE NOTICE ISSUED UNDER SECTION 148 IN THE NAME OF THE DECEASED ASSES SEE IS INVALID. THE SAME IS LIABLE TO BE QUASHED. SINCE THE INITIATION OF REASS ESSMENT PROCEEDINGS ITSELF ARE HELD 14 ITA NO. 1249/JP/2019 SMT. RAMPYARI, AJMER. TO BE INVALID, THE REASSESSMENT ORDER PASSED BY THE AO WOULD NOT SURVIVE AND LIABLE TO BE SET ASIDE. SINCE THE NOTICE UNDER SECTION 14 8 IS QUASHED BEING INVALID, THEREFORE, WE DO NOT PROPOSE TO GO TO THE OTHER GRO UNDS OF THE APPEAL ON THE MERITS OF THE ADDITION AS THEY BECOME INFRUCTUOUS. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER IS PRONOUNCED IN THE OPEN COURT ON 05/10/ 2020. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 05/10/2020. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- SMT. RAMPYARI, AJMER. 2. THE RESPONDENT THE ITO WARD 2(3), AJMER. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1249/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR