Late Tanguturi Venkata Subbayya Rep.By Tanguturi Mahalakshmamma, Palakol V. Income Tax Officer, Ward-1, Palakol

ITA 226/VIZ/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1972 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 1 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Invalid notice; Period of limitation; Procedural lapse; Time period of passing order; Reassessment proceedings; Set aside
• Section: 143(3); 148; 144

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH , ACCOUNTANT MEMBER . / I . T .A.NO. 226 /VIZ/201 8 ( / ASSESSMENT YEAR : 20 09 - 10 ) LATE TANGUTURI VENKATA SUBBAYYA REP. BY HIS WIFE SMT. TANGUTURI MAHALAKSHMAMMA D.NO.11 - 1 - 7, SRI RAM PETA PALAKOL, WEST GODAVARI [PAN : A CXPT2019D ] VS. INCOME TAX OFFICER WARD - 1 PALAKOL ( / APPELLANT) ( / RESPONDENT) / APPELLANT BY : SHRI G.V.N.HARI , AR / RESPONDENT BY : S HRI D. V.SUBBA RAO , DR / DATE OF HEARING : 21 . 0 6 . 201 9 / DATE OF PRONOUNCEMENT : 28 .06 . 201 9 / O R D E R P ER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [CIT(A)] - 12 HYDERABAD VIDE APPEAL NO.10243/2017 - 18 DATED 03.01.2018 FOR THE ASSESSMENT YEAR (A.Y.) 2009 - 10. 2 I.T.A. NO . 22 6 /VIZ/201 8 LATE TANGUTURI VENKATA SUBBAYYA, REP BY SMT. TANGUTURI MAHALAKSHMAMMA, PALAKOL 2. GROUND NOS.1 AND 8 ARE GENERAL IN NATURE WHICH DOES NOT REQUIRE SPECIFIC ADJUDICATION. 3. GROUND NO.2 AND 3 ARE RELATED TO THE VALIDITY OF ISSUE OF NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). IN THE INSTANT CASE, THE ASSESSEE DID NOT FILE THE RETURN OF INCOME, THEREFORE, THE ASS ESSING OFFICER(AO) HAS REOPENED THE ASSESSMENT U/S147 AND ISSUED THE NOTICE U/S 148 OF THE ACT AND SERVED THE NOTICE ON HIS WIFE SINCE THE ASSESSEE HA D EXPIRED BY THE TIME THE NOTICE WAS ISSUED. IN RESPONSE TO THE NOTICE ISSUED, THE ASSESSEE S WIFE FILED THE RETURN OF INCOME ADMITTING TOTAL INCOME OF RS.32,158/ - AND SUBSEQUENTLY A NOTICE U/S 143(2) WAS ISSUED IN THE NAME OF SMT. TANGUTURI MAHALAKSHMAMMA, L/R OF THE ASSESSEE AND COMPLETED THE ASSESSMENT U/S 143(3) R.W.S. 147 OF THE ACT ON TOTA L INCOME OF RS.5,15,660/ - AND RAISED THE TAX DEMAND OF RS.1,15,580/ - . 4. AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE WENT ON APPEAL BEFORE THE CIT(A) AND CHALLENGED THE VALIDITY OF ISSUE OF NOTICE U/S 148 IN THE NAME OF DEAD PERSON AND FRAMING THE ASSE SSMENT IN THE NAME OF SMT. TANGUTURI MAHALAKSHMAMMA, WIFE OF THE ASSESSEE. THE LD.CIT(A) HELD THAT SINCE THE NOTICE U/S 143(2) WAS ISSUED IN THE NAME OF SMT. TANGUTURI 3 I.T.A. NO . 22 6 /VIZ/201 8 LATE TANGUTURI VENKATA SUBBAYYA, REP BY SMT. TANGUTURI MAHALAKSHMAMMA, PALAKOL MAHALAKSHMAMMA , W/O LATE SRI TANGUTURI VENKATA SUBBAYYA, LEGAL HEIR OF THE ASSESSEE, TH ERE IS NO INFIRMITY IN THE ACTION TAKEN BY THE AO, ACCORDINGLY UPHELD THE VALIDITY OF ISSUE OF NOTICE U/S 148 AND DISMISSED THE ASSESSEES APPEAL ON THIS GROUND. 5. AGAINST THE ORDER OF THE LD.CIT(A), THE ASSESSEE HAS FILED APPEAL BEFORE THIS TRIBUNAL. DURING THE APPEAL HEARING, THE LD.AR SUBMITTED THAT NOTICE U/S 148 WAS ISSUED IN THE NAME OF DECEASED PERSON SHRI TANGUTURI VENKATA SUBBAYYA WHO EXPIRED ON 20.01.2011. HENCE, ARGUED THAT NOTICE ISSUED ON A DEAD PERSON IS INVALID, CONSEQUENT ASSESSMENT FRAM ED U/S 143(3) BECOMES INFRUCTUOUS, HENCE REQUESTED TO QUASH THE NOTICE ISSUED U/S 148 AND CANCEL THE ASSESSMENT FRAMED U/S 143(3) R.W.S. 147 OF THE ACT. THE LD.AR ALSO RELIED ON THE DECISION OF THIS TRIBUNAL IN THE CASE OF SRI AEMALA VENKATESWARA RAO VIDE I.T.A NO.227/VIZ/2017 DATED 03.03.2019. 6. ON THE OTHER HAND, THE LD.DR ARGUED THAT THOUGH THE NOTICE U/S 148 WAS ISSUED ON A DEAD PERSON, THE NOTICE WAS SERVED ON THE WIFE OF THE ASSESSEE AND SUBSEQUENTLY, THE NOTICE U/S 143(2) WAS ISSUED IN THE NAME OF THE WIFE AND THE ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S. 147 IN THE NAME OF SMT.TANGUTURI MAHALAKSHMAMMA. SINCE THE ASSESSMENT WAS 4 I.T.A. NO . 22 6 /VIZ/201 8 LATE TANGUTURI VENKATA SUBBAYYA, REP BY SMT. TANGUTURI MAHALAKSHMAMMA, PALAKOL COMPLETED U/S 143(3) ON THE CORRECT LEGAL HEIR, THE LD.DR ARGUED THAT THERE IS NO REASON TO INTERFERE WITH THE ORDER OF TH E LD.CIT(A) AND THE SAME IS TO BE UPHELD. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL PLACED ON RECORD. IN THE INSTANT CASE, THE ASSESSEE HAS NOT FILED THE RETURN OF INCOME, HENCE THE AO ISSUED NOTICE U/S 148 ON 29.03.2016. BY THE TIM E, THE NOTICE WAS ISSUED U/S 148, THE ASSESSEE HAD EXPIRED. SUBSEQUENTLY, THE AO ISSUED NOTICE U/S 143(2) IN THE NAME OF SMT.TANGUTURI MAHALAKSHMAMMA, WIFE OF THE ASSESSEE AND COMPLETED THE ASSESSMENT. AS VERIFIED FROM THE MATERIAL PLACED BEFORE US, THE ASSESSEE HAD EXPIRED ON 20.01.2011 AND HE WAS SURVIVED BY HIS WIFE, SMT.TANGUTURI MAHALAKSHMAMMA AND HIS 5 CHILDREN AS PER THE LETTER SUBMITTED BY SRI T.NAGESWARA RAO, S/O LATE SRI T.VENKATASUBBAYYA BEFORE ITO, WARD - 1, PALAKOL. THEREFORE , IT IS NOT A CASE OF S O LE LEGAL HEIR, BUT THE LEGAL HEIRS CONSIST OF HIS WIFE AND 5 CHILDREN . ONCE THE ASSESSEE HAD EXPIRED BEFORE THE ISSUE OF NOTICE U/S 148, IT IS THE DUTY OF THE AO TO BRING ALL THE LEGAL HEIR ON RECORD AND ISSUE NOTICE FOR REOPENING THE ASSESSMENT IN THE NAMES OF ALL THE LEGAL HEIRS, BUT NOT IN THE NAME OF DECEASED PERSON. IN THE INSTANT CASE, NOTICE U/S 148 WAS ISSUED ON DEAD PERSON, WHICH IS INVALID. THIS VIEW IS SUPPORTED BY THE DECISION OF 5 I.T.A. NO . 22 6 /VIZ/201 8 LATE TANGUTURI VENKATA SUBBAYYA, REP BY SMT. TANGUTURI MAHALAKSHMAMMA, PALAKOL THIS TRIBUNAL IN THE CASE OF SRI AEMALA VENKA TESWARA RAO CITED SUPRA. FOR THE SAKE OF CLARITY AND CONVENIENCE WE EXTRACT RELEVANT PART OF THE ORDER OF THIS TRIBUNAL FROM PARA 6 TO 7, WHICH READS AS UNDER : 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THE INSTANT C ASE, THE ASSESSEE WAS 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 PERSO N. IN RESPONSE TO THE NOTICE ISSUED BY THE AO, THE WIFE OF THE DECEASED HAD INTIMATED THE DEATH OF THE ASSESSEE. HOWEVER, NO EFFORT WAS MADE BY THE AO TO BRING THE LEGAL HEIR ON RECORD, INSTEAD, THE AO PROCEEDED TO COMPLETE THE ASSESSMENT IN THE NAME OF T HE LEGAL HEIR WITHOUT ISSUING NOTICE U/ 148. THE LD.AR RELIED ON THE PROVISIONS OF SECTION 159 OF THE ACT. FOR THE SAKE OF CLARITY AND CONVENIENCE, WE EXTRACT RELEVANT PART OF THE PROVISIONS OF SECTION 159 WHICH READS AS UNDER : 159 . (1) WHERE A PERSON DIES, HIS LEGAL REPRESENTATIVE 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 TO THE SAME EXTENT AS THE DECEASED. (2) FOR THE PURPOSE OF MAKING AN ASSESSMENT (INCLUDING AN ASSESSM ENT, REASSESSMENT OR RECOMPUTATION UNDER SECTION 1 47 ) OF 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 HIS 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 SUR VIVED, MAY BE TAKEN AGAINST THE LEGAL REPRESENTATIVE; AND (C) ALL THE PROVISIONS OF THIS ACT SHALL APPLY ACCORDINGLY. (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 PERSON BEFORE HIS DEATH, IT IS DEEMED THAT THE PROCEEDINGS ARE TAKEN AGAINST THE LEGAL REPRESENTATIVE AND THE SAME WOULD CONTINUE AGAINST THE LEGAL REPRESENTAT IVE 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 AFTER THE DEATH OF THE ASSESSEE, HENCE THE 6 I.T.A. NO . 22 6 /VIZ/201 8 LATE TANGUTURI VENKATA SUBBAYYA, REP BY SMT. TANGUTURI MAHALAKSHMAMMA, PALAKOL NOTICE ISSUED ON THE DEAD PERSON CANNOT MAKE THE LEGAL HEIRS BI NDING UNLESS A PROPER NOTICE IS ISSUED ON THE LEGAL HEIRS. AFTER THE DEATH OF THE ASSESSEE, PROCEEDINGS MUST BE INITIATED AGAINST THE LEGAL HEIRS TO TREAT THE LEGAL HEIRS AS DEEMED ASSESSEES. AS PER SECTION 159 (2)(B), THE AO IS FREE TO INITIATE PROCEEDING S AGAINST THE LEGAL REPRESENTATIVES WHICH COULD HAVE BEEN INITIATED AGAINST THE DECEASED AND DETERMINE THE TAX LIABILITY OF THE DECEASED PERSON AND THE SAME IS BINDING ON THE LEGAL REPRESENTATIVES. ANY NOTICE ISSUED IN THE NAME OF A DECEASED PERSON IS INVA LID AND CANNOT BE ENFORCED IN THE LAW. THE LD.AR RELIED ON THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF ALAMELU VEERAPPAN VS. ITO, NON CORPORATE, WARD 2(2), CHENNAI, WRIT PETITION NO.30060 OF 2017 AND WMP NO.32631 OF 2017. HONBLE MADRAS HIGH COURT HELD THAT THE NOTICE ISSUED ON A DEAD PERSON IS INVALID AND CANNOT BE ENFORCED. FOR THE SAKE OF CLARITY AND CONVENIENCE , WE EXTRACT PARA 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.VEERAPPAN IS ENFORCEABLE IN LAW AND THE SUBSIDIARY ISSUE BEING AS TO WHETHER THE PETITIONER, BEING THE WIFE OF THE SAID MR.S.VEERAPPAN, CAN BE COMPELLED TO PARTICIPATE IN THE PROCEEDINGS AND RESPOND TO THE IMPUGNED NOTICE. THE FACT THAT THE SAID MR.S.VEERAPPAN DIED ON 26.1.2010 IS NOT IN DISPUTE. IF THIS FACT IS NOT DISPUTED, THEN THE NOTICE ISSUED IN THE NAME OF THE DEAD PERSON 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 CANCEL THE PAN REGISTRATION IN THE NA ME OF THE ASSESSEE AND THAT THEREFORE, THE DEPARTMENT 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 UN ENFORCEABLE IN LAW. IF SUCH IS THE LEGAL POSITION, WOULD THE REVENUE BE JUSTIFIED IN CONTENDING THAT THEY, HAVING NO KNOWLEDGE ABOUT THE DEATH OF THE ASSESSEE, 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. 17. THIS COURT SUPPORTS SUCH A CONCLUSION WITH THE FOLLOWING REASONS : ADMITTEDLY, THE LIMITATION PERIOD FOR ISSUANCE OF NOTICE FOR REOPENING EXPIRED ON 31.3.2017. THE IMPUGNED NOTICE WAS ISSUED ON 30.3.2 017 IN THE NAME OF THE DEAD PERSON. ON BEING INTIMATED ABOUT THE DEATH, THE 7 I.T.A. NO . 22 6 /VIZ/201 8 LATE TANGUTURI VENKATA SUBBAYYA, REP BY SMT. TANGUTURI MAHALAKSHMAMMA, PALAKOL DEPARTMENT SENT THE NOTICE TO THE PETITIONER - HIS SPOUSE TO PARTICIPATE IN THE PROCEEDINGS. 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 PERIOD OF LIMITATION I.E. 31.3.2017 IS A NULLITY, UNENFORCEABLE IN LAW AND WITHOUT JURISDICTION. THUS, MERELY BECAUSE THE DEPARTMENT WAS NOT INTIMATED ABOUT THE DEATH OF TH E 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 OBLIGATION ON THE PART OF THE LEGAL REPRESENTATIVES OF THE DECEASED ASSESSEE TO IMMEDIATELY INTIMATE THE DEATH OF THE ASSESSEE OR TAKE STEPS TO CANCEL THE PAN REGISTRATION. 18. IN SUCH CIRCUMSTANCES, THE QUESTION WOULD BE AS TO WHETHER SECTION 159 OF THE ACT WOULD GET ATT RACTED. THE ANSWER TO THIS QUESTION WOULD BE IN THE NEGATIVE, AS THE PROCEEDINGS UNDER SECTION 159 OF THE ACT CAN BE INVOKED ONLY IF THE PROCEEDINGS HAVE ALREADY BEEN INITIATED WHEN THE ASSESSEE WAS ALIVE A ND WAS PERMITTED FOR THE PROCEEDINGS TO BE CONTINUED AS AGAINST THE LEGAL HEIRS. THE FACTUAL POSITION IN THE INSTANT CASE BEING OTHERWISE, THE PROVISIONS OF SECTION 159 OF THE ACT HAVE NO APPLICATION. 19. THE REVENUE SEEKS TO BRING THEIR CASE UNDER SECTION 292 OF THE ACT TO STATE THAT THE DEFECT IS A CURABLE DEFECT AND ON THAT GROUND, THE IMPUGNED NOTICE CANNOT BE DECLARED AS INVALID. 20. THE LANGUAGE EMP LOYED IN SECTION 292 OF THE ACT IS CATEGORICAL AND CLEAR. THE NOTICE HAS TO BE, IN SUBSTANCE AND EFFECT, IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THE ACT. UNDOUBTEDLY, THE ISSUE RELATI NG TO LIMITATION IS NOT A CURABLE DEFECT FOR THE REVENUE TO INVOKE SECTION 292B OF THE ACT. 21. ALL THE ABOVE REASONS ARE FULLY SUPPORTED BY THE DECISION IN THE CASE OF VIPIN WALIA. IN THAT CASE, THE NOTI CE 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 A DEAD PERSON. HOWEVER, THE FACT REGARDING THE DEATH OF THE ASSESSEE COULD NOT BE DISPUTED BY THE DEPARTMENT. THE DEPARTMENT CONTINUED THE PROCEEDINGS UNDER SECTION 147 / 148 OF THE ACT AND AT THAT STAGE, THE SON OF THE DECEASED APPROACHED THE HIGH COURT OF DELHI. THE HIGH COURT OF DELHI POINTED OUT THAT WHAT WAS SOUGHT TO BE DONE BY THE INCOME TAX OFFICER WAS TO INITIATE PROCEEDINGS UNDER SECTION 147 OF 8 I.T.A. NO . 22 6 /VIZ/201 8 LATE TANGUTURI VENKATA SUBBAYYA, REP BY SMT. TANGUTURI MAHALAKSHMAMMA, PALAKOL THE ACT AGAINST THE DECEASED ASSESSEE FOR THE ASSESSMENT YEAR 2008 - 09, FOR WHICH, THE LIMITATION FOR ISSUA NCE OF NOTICE UNDER SECTION 147 / 148 OF THE ACT WAS 31.3.2015 AND ON 02.7.2015 WHEN THE NOTICE WAS ISSUED, THE ASSESSEE WAS ALREADY DEAD AND IF THE DEPAR TMENT INTENDED TO PROCEED UNDER SECTION 147 OF THE ACT, IT COULD HAVE DONE SO PRIOR TO 31.3.2015 BY ISSUING THE 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 THE LEGAL REPRESENTATIVES OF THE ASSESSEE. THE DECISION IN VIPIN WALIA FULLY SUPPORTS THE CASE OF THE PETITIONER HEREIN. 22. THE DECISION IN THE CASE OF VIPIN WALIA WAS FOLLOWED IN THE DECISION OF THE HIGH COURT OF G UJARAT IN THE CASE OF RASID LALA, IN WHICH, THE RE - ASSESSMENT PROCEEDINGS WERE INITIATED AGAINST THE DEAD PERSON, THAT TOO, AFTER A LONG DELAY. THE COURT POINTED OUT THAT EVEN IF THE PROVISIONS OF SECTION 159 OF THE ACT ARE ATTRACTED, IN THAT CASE ALSO, THE NOTICE WAS REQUIRED TO BE ISSUED AGAINST AND IN THE NAME OF THE HEIRS OF THE DECEASED ASSESSEE AND UNDER THE SAID CIRCUMSTANCES, SECTION 159 OF THE ACT SHALL NOT 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 FELL FOR CONSIDERATION, IS AS TO WHETHER SUCH FRAMING OF ASSESSMENT AGAINST A NON EXISTING ENTIT Y OR A DEAD PERSON COULD BE BROUGHT WITHIN THE AMBIT OF SECTION 292B OF THE ACT AND AFTER REFERRING TO THE DECISIONS ON THE POINT INCLUDING THE DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF SRI NATH SURESH CHAND RAM NARESH VS. 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 EXISTING ENTITY/PERSON GOES TO THE ROOT OF THE MATTER, WHICH IS NOT A PROCEDURAL IRREGULARITY, BUT A JURISDICTIONAL DEFECT, AS THERE CANNOT BE ANY ASSESSMENT AGAINST A DEAD PERSON. 7. HONBLE MUMBAI HIGH COURT IN THE CASE OF SUMIT BALKRISHNA GUPTA. V.ASSISTANT COMM ISSIONER OF INCOME - TAX, CIRCLE 16(2), MUMBAI 103 TAXMANN.COM 188 HELD THAT THE NOTICE ISSUED ON A DEAD PERSON IS INVALID UNENFORCEABLE IN LAW. WE EXTRACT THE RELEVANT PART OF THE ORDER OF HONBLE BOMBAY HIGH COURT IN SUMIT BALKRISHNA GUPTA SUPRA 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 ACQUIRING JURISDICTION TO REOPEN AN ASSESSMENT IS THAT SUCH NOTICE SHOULD BE ISSUED IN THE NAME OF THE CO RRECT PERSON. THIS REQUIREMENT OF ISSUING NOTICE TO A CORRECT PERSON AND NOT TO A DEAD PERSON IS NOT A MERELY A PROCEDURAL REQUIREMENT BUT IS A CONDITION PRECEDENT TO THE IMPUGNED NOTICE BEING 9 I.T.A. NO . 22 6 /VIZ/201 8 LATE TANGUTURI VENKATA SUBBAYYA, REP BY SMT. TANGUTURI MAHALAKSHMAMMA, PALAKOL VALID IN LAW. THUS, A NOTICE WHICH HAS BEEN ISSUED IN THE NAME OF THE DEAD PERSON IS ALSO NOT PROTECTED EITHER BY PROVISIONS OF SECTION 292B OR 292BB OF THE ACT. THIS IS SO AS THE REQUIREMENT OF ISSUING A NOTICE IN THE NAME OF CORRECT PERSON IS THE FOUNDATIONAL REQUIREMENT TO ACQUIRE JURISDICTION TO REOPEN THE ASSESSM ENT. THIS IS EVIDENT FROM SECTION 148 OF THE ACT, WHICH REQUIRES THAT BEFORE A PROCEEDING CAN BE TAKEN UP FOR REASSESSMENT, A NOTICE 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 TH E 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 REQUIRE MENT. THEREFORE, BOTH THE IMPUGNED NOTICE DATED 29.3.2018 AND THE IMPUGNED ORDER DATED 13.11.2018 ARE QUASHED AND SET ASIDE. IT IS MADE CLEAR THAT THIS ORDER WILL NOT PROHIBIT THE REVENUE FROM ISSUING A FRESH NOTICE FOR REASSESSMENT, IF REQUIREMENT OF SECT IONS 147/ 148 OF THE ACT ARE SATISFIED, INCLUDING THE LIMITATION PERIOD THEREIN. THE LD.DR DID NOT SUBMIT ANY OTHER CASE LAW OR THE DECISION SUPPORTING THE NOTICE ISSUED ON A DEAD PERSON IS VALID OR TO CONTROVERT THE SUBMISSIONS MADE BY THE LD.AR. THERE FORE, WE HOLD THAT THE NOTICE U/S 148 ON A DEAD PERSON IS INVALID AND ACCORDINGLY QUASHED. CONSEQUENT ASSESSMENTS MADE U/S 144 R.W.S. 147 IS ANNULLED. 7.1. IN THE INSTANT CASE, THERE IS NO DISPUTE THAT THE ASSESSEE HAD EXPIRED AND NOTICE WAS ISSUED ON DEAD PERSON. THOUGH SUBSEQUENTLY, NOTICE U/S 143(2) WAS ISSUED IN THE NAME OF HIS WIFE AND THE SAME CANNOT VALIDATE THE INVALID NOTICE. THE NOTICE ISSUED ON A DEAD PERSON IS HELD TO BE INVALID AS DISCUSSED EARLIER IN THIS ORDER. ONCE THE NOTICE ISSUED U/ S 148 IS INVALID, SUBSEQUENT PROCEEDINGS ALSO BECOME INVALID AND RENDERS THE ASSESSMENT INFRUCTUOUS. HENCE, RESPECTFULLY FOLLOWING THE VIEW TAKEN BY THIS TRIBUNAL 10 I.T.A. NO . 22 6 /VIZ/201 8 LATE TANGUTURI VENKATA SUBBAYYA, REP BY SMT. TANGUTURI MAHALAKSHMAMMA, PALAKOL IN THE CASE CITED SUPRA, WE QUASH THE NOTICE U/S 148 AND CANCEL THE ASSESSMENT MADE U/S 143( 3) R.W.S.147 OF THE ACT . 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH JUNE 2019. S D/ - S D/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 28 .06.2019 L.RAMA, SPS / COPY OF THE ORDER FORWARDED TO: - 1. / THE ASSESSEE - LATE TANGUTURI VENKATA SUBBAYYA , REP. BY HIS WIFE SMT. TANGUTURI MAHALAKSHMAMMA , D.NO.11 - 1 - 7, SRI RAM PETA, PALAKOL, WEST GODAVARI 2. / THE REVENUE INCOME TAX OFFICER, WARD - 1, PALAKOL 3. THE PR. COMMISSIONER OF INCOME TAX , RAJAMAHENDRAVARAM 4. THE COMMISSIONER OF TAX (APPEALS) - 12 , HYDERABAD 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM