Smt. Chandrikaben J.Panchal L/h of late Jayantilal C.Panchal, Mehsana V. The Income tax Officer,Ward-1, Mehsana

ITA 2048/AHD/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0007 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 23-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 11-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK SUTARIA
• Assessee Lawyers: M J SHAH
• Keywords: Invalid notice; Opportunity of being heard; Period of limitation; Time period of passing order; Reassessment proceedings
• Section: 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NO.2048/AHD/2012 (ASSESSMENT YEAR:2009-10) SMT. CHANDRIKABEN J. PANCHAL LATE SHRI JAYANTILAL C. PANCHAL (PROP. PADMAVATI CONSTRUCTION) 4A, JANKALYAN SOCIETY, OPP. SWAMINARAYAN SOCIETY, MEHSANA APPELLANT VS. INCOME TAX OFFICER, WARD - 1, MEHSANA RESPONDENT PAN: ABIPP5921A / BY ASSESSEE : SHRI M. J. SHAH, A.R. / BY REVENUE : SHRI DEEPAK SUTARIA, SR. D.R. /DATE OF HEARING : 23.09.2016 /DATE OF PRONOUNCEMENT : 29.11.2016 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2009-10 ARISES AGAINST THE CIT(A), GANDHINAGARS ORDER DATED 15.06.2012, IN AP PEAL NO. CIT(A) ITA NO.2048/AHD/2012 (SMT. CHANDRIKABEN J. PANCHAL VS. ITO) A.Y. 2009-10 - 2 - /GNR/13/2011-12, IN PROCEEDINGS UNDER SECTION 143 R .W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE ASSESSEES TWO FOLDED SUBSTANTIVE GROUNDS RA ISED IN THE INSTANT APPEAL INTER ALIA CHALLENGE VALIDITY OF REOPENING T AKEN RECOURSE TO BY THE ASSESSING OFFICER AND UPHELD IN THE LOWER APPELLATE PROCEEDINGS. HER LATTER GROUND PLEADS THAT THE CIT(A) HAS ERRED IN DIRECTIN G THE ASSESSING OFFICER TO MAKE INCOME ADDITION @ 3% OF THE CONTRACT WORKS STA TED TO HAVE NEITHER BEEN EXECUTED NOR PERFORMED AT ASSESSEES BEHEST. 3. WE NOW COME TO FORMER ISSUE OF VALIDITY OF THE I MPUGNED REOPENING FIRST. THIS APPELLANT IS LEGAL HEIR OF THE DECEASE D ASSESSEE SHRI JAYANTILAL C. PANCHAL. HE WAS A CIVIL CONTRACTOR. HE FILED RETU RN ON 29.09.2009 STATING INCOME OF RS.2,06,020/-. THE SAME STOOD PROCESSED. THE ASSESSING OFFICER THEREAFTER FORMED REASONS TO BELIEVE THAT THE ASSES SEES TAXABLE INCOME LIABLE TO BE ASSESSED HAD ESCAPED ASSESSMENT ON ACCOUNT OF DIFFERENCE OF RS.19,24,461/- IN TOTAL RECEIPTS DECLARED VIS--VIS THE CORRESPONDING FIGURES IN TDS CERTIFICATES OF RS.81,10,880/- AND RS.1,00,35,3 41/-; RESPECTIVELY. HE THUS ISSUED SECTION 148 NOTICE DATED 22.10.2010. P AGE 23 OF THE PAPER BOOK REVEALS THAT THE ORIGINAL ASSESSEE HAD ALREADY LEFT FOR HIS HEAVENLY ABODE ON 15.07.2010 I.E. MUCH BEFORE THE ISSUANCE OF REOPENI NG NOTICE. THIS APPELLANT THEN FILED HER REPLY DATED 10.03.2011 INTIMATING TH E ASSESSING OFFICER ABOUT THE ORIGINAL ASSESSEES DEATH. THE ASSESSING OFFIC ER COMPLETED RE- ASSESSMENT IN QUESTION MAKING ADDITION OF THE ABOVE STATED AMOUNT OF RS.19,24,461/-. 4. THE APPELLANT FILED APPEAL. HER FIRST AND FOREM OST SUBSTANTIVE GROUND CHALLENGED VALIDITY OF THE ABOVE RE-OPENING ON THE GROUND THAT SECTION 148 ITA NO.2048/AHD/2012 (SMT. CHANDRIKABEN J. PANCHAL VS. ITO) A.Y. 2009-10 - 3 - NOTICE HAD BEEN ISSUED IN THE NAME OF A DEAD PERSON /ASSESSEE. THE CIT(A) DECLINES THE SAME AS FOLLOWS: 4.3 I HAVE GONE THROUGH THE FACTS OF THE CASE, THE SUBMISSION OF THE APPELLANT AND THE REPORT OF THE AO ON THE ISSUE. THERE IS NO DISPUTE THAT THE NOTICE WAS ISSUED IN THE NAME OF THE DECEASED PERSON TO WHOM T HE INCOME BELONG ORIGINALLY AND THE AO WAS NOT PERSON TO WHOM THE INCOME BELONG ORIGINALLY AND. THE AO WAS NOT KNOWING ABOUT THAT UNFORTUNATE DEATH OF THE PER SON WHILE ISSUING THE NOTICE. THE FACT THAT THERE WAS A NEWS ITEM IN THE LOCAL NE WSPAPER DOES NOT MEAN THAT THE AO HAD PRIOR KNOWLEDGE. IT IS ALSO TRUE THAT NO FRE SH NOTICE U/S 148 RWS 147 .HAS BEEN .ISSUED IN THE NAME OF THE LEGAL HEIR EVEN THE REAFTER. HOWEVER, .THE PROCEEDINGS CONTINUED AND APPARENTLY SUBSEQUENT NOT ICES U/S 142(1) ETC WAS ISSUED IN THE NAME OF THE LEGAL HEIR ONLY AND THE A SSESSMENT FRAMED THROUGH HER ONLY. I AGREE THAT INFIRMITY HAS BEEN COMMITTED BUT IT IS CURABLE. IN SIMILAR CIRCUMSTANCES THE THIRD MEMBER BENCH OF HON'BLE ITA T, AMRITSAR IN THE CASE OF ASHOK KUMAR 80 ITD 33 HAS HELD SO AND SET-ASIDE THE MATTER BACK TO THE AO. THE ACCOUNTANT MEMBER IN HIS ORDER HAD APPROVED THE ACT ION OF THE FIRST APPELLATE AUTHORITY IN RESTORING THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER ASKING HIM TO REPROCESS THE SAME DE NOVO BUT AFTER, BRINGI NG .THE OTHER LEGAL HEIRS ON RECORD. THIS DIRECTION WAS IN CONFORMITY WITH THE J UDGMENT OF THE SUPREME COURT IN CIT V. JAI PRAKASH SINGH [1996] 219 ITR 737. THE CIT(A) CANNOT ORDER FOR FRESH ADJUDICATION AFTER THE AMENDMENT IN THE POWER S OF THE FIRST APPELLATE AUTHORITY. THEREFORE, IT IS HELD THAT THE PROCEEDIN GS ARE NOT AB INITIO INVALID AND AS IN PRACTICE ALL OPPORTUNITY OF BEING HEARD HAS. BEE N PROVIDED TO THE LEGAL HEIR; THE SUBSEQUENT ASSESSMENT IS-HELD VALID. .THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF ESTATE OF LATE RANGALAL JAJODIA [1971] 79 ITR 505 (SC) 'IN .WHICH CASE IT WAS DECIDED THAT IT IS A CURABLE DEFECT AND THE QUESTION OF LIMITATION DOES NOT ARISE IS RELIED UPON. AS FAR AS THE REASONS FOR REO PENING ARE CONCERNED THESE HAVE BEEN REPRODUCED IN THE ASSESSMENT ORDER AND OPPORTU NITY HAS BEEN GIVEN IN THE ASSESSMENT PROCEEDINGS ON THIS SPECIFIC- ISSUE. THE DECISION OF HD.N'BLE DELHI HIGH COURT IN THE CA SE OF R. C. JAIN DECEASED; 273 ITR 384 CITED BY THE APPELLANT IS NOT APPLICABLE TO THE PRESENT FACTS AS THE DEPARTMENT WAS PARTICULARLY INFORMED ABOUT T HE DEATH OF THE PERSON BEFORE THE INVALID NOTICE WAS ISSUED. THEREFORE, IT IS DEC IDED THAT THE REASONS HAVE BEEN PROPERLY RECORDED, THE PROCEEDINGS ARE NOT AB-INITI O VOID AND THE REASSESSMENT ORDER IS VALIDLY FRAMED. THE GROUNDS ARE DECIDED AC CORDINGLY. 5. WE HAVE HEARD BOTH THE PARTIES VEHEMENTLY ARGUED IN FAVOUR OF THEIR RESPECTIVE STANDS. THERE IS HARDLY ANY DISPUTE BY NOW THAT THE ORIGINAL ASSESSEE EXPIRED ON 15.07.2010 EVEN BEFORE ISSUANCE OF SECTION 148 NOTICE DATED 22.12.2010. THERE IS FURTHER NO QUARREL THAT THIS APPELLANT BROUGHT THE SAME TO ASSESSING OFFICERS KNOWLEDGE AS STATED IN PARA 3.1 OF THE RE- ITA NO.2048/AHD/2012 (SMT. CHANDRIKABEN J. PANCHAL VS. ITO) A.Y. 2009-10 - 4 - ASSESSMENT ORDER. WE NOTICE IN THESE FACTS THAT A CO-ORDINATE BENCH OF THIS TRIBUNAL IN IT(SS)A NO.441/AHD/2011 HASMUKHBHAI BAR OT VS. ACIT DECIDED ON 13.08.2015 QUASHES AN IDENTICAL REOPENIN G AS UNDER: 7. WE HAVE CONSIDERED RIVAL CONTENTIONS AND GONE T HROUGH THE RECORD CAREFULLY. WE FIND THAT THE AO HAD ISSUED NOTICE UN DER SECTION 158BD ON 21.6.2004 UPON SHRI KANTILAL B. BAROT. COPY OF THE NOTICE IS AVAILABLE AT PAGE NO.25. HIS LEGAL HEIR, SHRI HASMUKHBHAI K. BAROT, H AS POINTED OUT TO THE AO VIDE LETTERS DATED 6.6.2004 AND 23.6.2006 THAT SHRI KANT ILAL B. BAROT WAS EXPIRED ON 27.12.2001. THUS, IT IS AN ESTABLISHED FACT THAT NO TICE UNDER SECTION 158BD WAS ISSUED UPON A DECEASED PERSON. THE QUESTION BEFORE US, WHETHER THIS INHERENT DEFECT IN THE NOTICE CAN BE LEGALIZED WITH THE HELP OF SECTION 292BB. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SECTION 292 BB WAS CONSIDERED BY THE SPECIAL BENCH OF THE ITAT IN THE CASE OF KUBER TOBA CCO VS. DCIT, 117 ITD 273 WHEREIN IT HAS BEEN OBSERVED THAT THIS PROVISION IS PROSPECTIVE IN NATURE. IT WAS BROUGHT IN STATUTE W.E.F. 1.4.2008 AND HENCE, IT WA S NOT EFFECTIVE WHEN THE NOTICE UNDER SECTION 158BD WAS ISSUED. THEREFORE, THE DEPA RTMENT CANNOT GET ANY BENEFIT FROM THIS SECTION. APART FROM THIS, WE FIND THAT TH IRD MEMBER OF THE ITAT IN THE CASE OF SIKANDAR LAL JAIN (SUPRA) HAS MADE LUCID EN UNCIATION THE LAW ON THIS ISSUE, AND HENCE, THE NOTICE ISSUED UPON A DECEASED PERSON WOULD NOT BE VALID ONE FOR INITIATING THE PROCEEDINGS. THE DISCUSSION MADE IN THE ORDER IS WORTH TO NOTE, AS UNDER: '12. NOW COMING TO THE SECOND ISSUE WHETHER THE NOT ICE ISSUED IN THE NAME OF A DEAD PERSON IS A VALID NOTICE OR NOT. CAN THE PROCEEDINGS BE INITIATED AGAINST A DEAD PERSON ? THE FACTS OF THE CASE CLEAR LY SPEAK THAT THE NOTICE UNDER SECTION 148 WAS ISSUED IN THE NAME OF THE ASS ESSEE WHO HAS ALREADY EXPIRED ON 17-11-2002. SHRI SIKANDAR LAL JAIN, THE ASSESSEE, HAS SUBMITTED THE RETURN UP TO THE ASSESSMENT YEAR 2002-03. HIS R ETURN FOR ASSESSMENT YEAR 2003- 04 WAS FILED ON 26-3-2004 BY HIS WIFE SM T. UMA RANI JAIN AS HIS LEGAL HEIR. THE SAID RETURN WAS PROCESSED BY TH E ASSESSING OFFICER ON 2- 7-2004 AND REFUND WAS GRANTED IN THE NAME OF SMT. U MA RANI JAIN AS LEGAL HEIR OF THE ASSESSEE. THUS, THE FACT REGARDING THE DEATH OF THE ASSESSEE WAS VERY MUCH IN THE RECORD OF THE ASSESSING OFFICER. U NDER THESE FACTS, THE ASSESSING OFFICER INITIATED THE PROCEEDINGS IN THE NAME OF SHRI SIKANDAR LAL JAIN BY RECORDING THE REASONS AS WELL AS ISSUIN G OF THE NOTICE UNDER SECTION 148 DATED 21-3-2005. FOR A VALID INITIATION OF THE PROCEEDINGS UNDER SECTION 147, IN MY OPINION, ISSUANCE OF A VAL ID NOTICE WITHIN THE LIMITATION PERIOD AS WELL AS RECORDING OF THE REASO NS IS ESSENTIAL. THE SERVICE OF THE NOTICE ON THE ASSESSEE IS ALSO NECES SARY. A READING OF SECTIONS 147, 148 AND 149 MAKES IT CLEAR THAT THE NOTICE HAS TO BE ISSUED TO THE ASSESSEE. ISSUANCE OF THE NOTICE TO THE ASSESSEE, A S I HAVE ALREADY HELD, IS ESSENTIAL FOR VALID PROCEEDINGS. THE ASSESSEE IS DE FINED UNDER SECTION 2, SUB-SECTION (7) WHICH LAYS DOWN AS UNDER : '(7) 'ASSESSEE' MEANS A PERSON BY WHOM ANY TAX OR A NY OTHER SUM OF MONEY IS PAYABLE UNDER THIS ACT, AND INCLUDES ITA NO.2048/AHD/2012 (SMT. CHANDRIKABEN J. PANCHAL VS. ITO) A.Y. 2009-10 - 5 - (A) EVERY PERSON IN RESPECT OF WHOM ANY PROCEEDING UNDER THIS ACT HAS BEEN TAKEN FOR THE ASSESSMENT OF HIS INCOME OR ASSE SSMENT OF FRINGE BENEFITS OR OF THE INCOME OF ANY OTHER PERSON IN RE SPECT OF WHICH HE IS ASSESSABLE, OR OF THE LOSS SUSTAINED BY HIM OR B Y SUCH OTHER PERSON, OR OF THE AMOUNT OF REFUND DUE TO HIM OR TO SUCH OTHER PERSON ; (B) EVERY PERSON WHO IS DEEMED TO BE AN ASSESSEE UN DER ANY PROVISION OF THIS ACT; (C) EVERY PERSON WHO IS DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER ANY PROVISION OF THIS ACT;' FROM THE READING OF THIS SECTION, IT IS APPARENT TH AT 'ASSESSEE' MEANS A PERSON BY WHOM ANY TAX OR ANY SUM OF MONEY IS PAYAB LE UNDER THIS ACT AND ALSO INCLUDES EVEN EVERY PERSON WHO IS DEEMED TO BE AN ASSESSEE UNDER ANY PROVISION OF THE INCOME-TAX ACT. THE PERSON IS DEFI NED UNDER SECTION 2, SUB- SECTION (31) WHICH INCLUDES AN INDIVIDUAL. 'INDIVID UAL' MEANS A SINGLE HUMAN BEING DISTINCT FROM A GROUP OF HUMAN BEINGS. NOW, THE QUESTION ARISES WHETHER THE PERSON WHO HAS ALREADY EXPIRED, CAN BE REGARDED TO BE A HUMAN BEING SO AS TO FALL WITHIN THE DEFINITION O F 'INDIVIDUAL'. NOTICE IN THIS CASE IS NOT ISSUED IN THE NAME OF THE LEGAL RE PRESENTATIVES OF THE ASSESSEE BUT ISSUED IN THE NAME OF AN INDIVIDUAL WH O HAS ALREADY EXPIRED ON 17-11-2002. THEREFORE, IT CANNOT BE SAID THAT TH ERE WAS AN INDIVIDUAL IN EXISTENCE IN THE NAME OF SHRI SIKANDAR LAL JAIN IN WHOSE NAME NOTICE IS ISSUED AS ON THE DATE WHEN THE PROCEEDINGS UNDER SE CTION 147 WAS INITIATED OR THE NOTICE UNDER SECTION 148 WAS ISSUED. UNDER T HE 1922 ACT, THE WORD 'INDIVIDUAL' DID NOT NECESSARILY REFER TO A NATURAL HUMAN BEING BUT ALSO INCLUDED A JURISTIC PERSON LIKE A HINDU IDOL, BUT U NDER THE 1961 ACT DEFINITION, THERE IS A SEPARATE APPROPRIATE SPECIFI CATION 'EVERY ARTIFICIAL JURIDICAL PERSON.....'. SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF DECCAN WINE & GEN ERAL STORES V. CIT [1977] 106 ITR 111, IN WHICH IT WAS CATEGORICALLY H ELD THAT AN INDIVIDUAL UNDER THE INCOME-TAX ACT, 1961 MEANS ONLY A HUMAN B EING. THE ISSUANCE OF A VALID NOTICE IS A FOUNDATION FOR THE VALIDITY OF THE RE-ASSESSMENT. THERE IS A CLEAR CUT DISTINCTION BETWEEN THE PRECEDENT AND P ROCEDURE. THE DEFECT IN THE PROCEDURE WILL NOT NORMALLY AMOUNT TO LACK OF J URISDICTION. THE NOTICE PRESCRIBED UNDER SECTION 148 FOR THE PURPOSE OF INI TIATION OF REASSESSMENT PROCEEDINGS IS NOT A MERE PROCEDURAL REQUIREMENT, B UT IS A CONDITION PRECEDENT TO THE VALIDITY OF REASSESSMENT. IF NO NO TICE IS ISSUED OR IF THE NOTICE ISSUES IS SHOWN TO BE INVALID, THE PROCEED- INGS INITIATED BY THE ASSESSING OFFICER WOULD BE INVALID AND VOID. THE AS SESSMENT FRAMED ON THE BASIS OF SUCH INVALID PROCEEDINGS WILL BE INVALID. A NOTICE ISSUED TO A DEAD PERSON, IN MY OPINION, CANNOT BE REGARDED TO BE A N OTICE ISSUED TO AN INDIVIDUAL AS HE CANNOT BE A PERSON TO BE AN ASSESS EE. IN CONSEQUENCE THEREOF, IT CANNOT BE REGARDED TO HAVE BEEN ISSUED TO AN ASSESSEE. NO DOUBT, UNDER SECTION 2, SUB-SECTION (7) OF THE INCO ME-TAX ACT, HIS LEGAL REPRESENTATIVES BEING DIFFERENT HUMAN BEINGS FROM S HRI SIKANDAR LAL JAIN, ARE DEEMED TO BE THE ASSESSEE IN VIEW OF THE PROVIS IONS OF SECTION 159 OF THE INCOME-TAX ACT. SECTION 159(1) STRESSED THAT WHERE A PERSON DIES, HIS LEGAL ITA NO.2048/AHD/2012 (SMT. CHANDRIKABEN J. PANCHAL VS. ITO) A.Y. 2009-10 - 6 - REPRESENTATIVES SHALL BE LIABLE TO PAY ANY SUM WHIC H THE DECEASED WOULD HAVE BEEN LIABLE TO PAY IF HE HAD NOT DIED, IN THE LIKE MANNER AND TO THE SAME EXTENT AS THE DECEASED. SIMILARLY, SECTION 159 (2) ALSO EMPOWERS THE ASSESSING OFFICER TO TAKE THE PROCEEDINGS AGAINST T HE LEGAL REPRESENTATIVES WHICH HE SHOULD HAVE TAKEN AGAINST THE DECEASED IF HE HAD SURVIVED. SECTION 159(2) NOWHERE AUTHORIZES THE ASSESSING OFF ICER TO TAKE THE PROCEEDINGS AGAINST THE INDIVIDUAL WHO HAS ALREADY EXPIRED, THAT IS WHY THE LEGAL REPRESENTATIVE UNDER SECTION 2(7) ARE REGARDE D TO BE ASSESSEE. IT EMANATES THAT THE ASSESSEE IN THE CASE OF A DECEASE D PERSON WILL BE THE PERSON WHO ARE REGARDED TO BE THE LEGAL HEIRS OF TH E DECEASED AS THEY CAN BE REGARDED TO BE THE HUMAN BEING. THE NOTICE UNDER SECTION 148 HAS TO BE ISSUED ON THE ASSESSEE,I.E.,INDIVIDUAL (HUMAN BEING ). A PERSON WHO HAS ALREADY EXPIRED CANNOT BE REGARDED TO BE A HUMAN BE ING AS ON THE DATE WHEN THE NOTICE WAS ISSUED IN THIS CASE. ONLY LEGAL HEIR CAN BE REGARDED TO BE THE INDIVIDUAL. IN VIEW OF THE CLEAR MANDATES OF THE PROVISIONS OF SECTION 2(7) AND SUB-SECTIONS (1), (2) AND (3) OF SECTION 1 59, I AM OF THE OPINION THAT THE NOTICE ISSUED IN THE NAME OF A DEAD PERSON IS NOT A VALID NOTICE. IN THE ABSENCE OF ISSUANCE OF A VALID NOTICE, THE PROC EEDINGS INITIATED UNDER SECTION 147 CANNOT BE SAID TO BE VALID ONE. SINCE B OTH THE PARTIES HAVE ARGUED THIS ISSUE EXTENSIVELY RELYING ON A NUMBER O F CASE LAWS CLAIMED TO BE IN THEIR FAVOUR, I AM BOUND TO DISCUSS ALL THESE CASE LAWS BEFORE GIVING ANY FINAL VERDICT AND ACCORDINGLY THESE CASES ARE D ISCUSSED IN THE FOLLOWING PARAGRAPHS AS UNDER: .....' 8. DURING THE COURSE OF HEARING, SECTION 159 OF THE INCOME TAX ACT, WAS ALSO BROUGHT TO OUR NOTICE. THIS SECTION PROVIDES A MECH ANISM FOR PUTTING TAX LIABILITY UPON THE LEGAL REPRESENTATIVE, WHO INHERITED THE PR OPERTY OF THE DECEASED. 9. THIS ASPECT HAS ALSO BEEN CONSIDERED BY THE TRIB UNAL IN THE CASE OF SIKANDAR LAL JAIN EXTRACTED (SUPRA). THIRD MEMBER H AS HELD THAT SECTION 159(2) NOWHERE AUTHORIZE THE AO TO TAKE PROCEEDING AGAINST THE INDIVIDUAL WHO HAS ALREADY EXPIRED, THAT IS WHY THE LEGAL REPRESENTATI VE UNDER SECTION 2(7) ARE REGARDED TO BE ASSESSEE. THIS ASPECT CAN ALSO APPRE CIATED BY AN EXAMPLE, VIZ. AN ASSESSEE DIED LEAVING BEHIND FOUR LEGAL REPRESENTAT IVES. THE AO ISSUED NOTICE ON THE DECEASED. ONE OF THE LEGAL REPRESENTATIVES PART ICIPATED IN THE PROCEEDINGS AND THE AO PASSED ASSESSMENT ORDER. ALL THE FOUR LEGAL REPRESENTATIVES HAD INHERITED PROPERTY OF THE DECEASED. CAN TAX LIABILITY IMPOSED UPON THE DECEASED ASSESSEE WILL BE RECOVERED FROM THE REST OF THE LEGAL REPRES ENTATIVES, WHO INHERITED THE PROPERTY, BUT DID NOT PARTICIPATE IN THE PROCEEDING , BECAUSE THEY HAD NOT RECEIVED ANY NOTICE ? SECTION 292BB WILL NOT HELP THE AO IN THIS SITUATION. THEREFORE, CONSIDERING FROM ALL ANGLES, WE FIND THAT NOTICE IS SUED BY THE AO UPON THE DECEASED IS DEFECTIVE NOTICE AND NO VALID ASSESSMEN T ORDER COULD BE PASSED. RESPECTFULLY FOLLOWING THE ORDER OF THE ITAT IN THE CASE OF SIKANDARLAL JAIN (SUPRA), WE ALLOW THE FIRST GROUND OF APPEAL AND QU ASH THE ASSESSMENT ORDER. CONSEQUENTLY, WE DO NOT DEEM IT NECESSARY TO CONSID ER OTHER GROUNDS OF APPEAL, IN VIEW OF THE ABOVE DISCUSSION. ITA NO.2048/AHD/2012 (SMT. CHANDRIKABEN J. PANCHAL VS. ITO) A.Y. 2009-10 - 7 - 6. LD. DEPARTMENTAL REPRESENTATIVE FAILS TO INDICAT E ANY DISTINGUISHING FEATURES IN FACTS OF THE TWO CASES. WE ACCORDINGLY DRAW SUPPORT FROM THE ABOVE EXTRACTED CO-ORDINATE BENCHS DECISION TO QUA SH THE IMPUGNED REOPENING LEAVING BEHIND THE LATTER GROUND (SUPRA) AS RENDERED INFRUCTUOUS. 7. THIS APPELLANT SUCCEEDS IN THE INSTANT APPEAL. [PRONOUNCED IN THE OPEN COURT ON THIS THE 29 TH DAY OF NOVEMBER, 2016.] SD/- SD/- (N. K. BILLAIYA) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 29/11/2016 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )* + ,--. . /0 / DR, ITAT, AHMEDABAD 1 + 23 / GUARD FILE. BY ORDER / . // . /0