LILY SARKAR, LEGAL HEIR OF LATE SUDHIR CHOWDHURY,DURGAPUR V. ITO, WARD 1(2), DURGAPUR

ITA 1437/KOL/2025

AI Insights

The case involves an appeal by Lily Sarkar, the legal heir of the late Sudhir Chowdhury, against the order of the Commissioner of Income Tax (Appeals) at the National Faceless Appeal Centre. The primary contention was that a notice under section 148 of the Income Tax Act was issued to the deceased Sudhir Chowdhury, and no subsequent notice was issued to his legal heirs, which is a procedural requirement under section 159 of the Act. The Tribunal referenced a similar case for the assessment year 2010-11, where proceedings were quashed under identical circumstances. The Tribunal noted that the Assessing Officer had failed to update the records to reflect the legal heirs and did not take necessary actions post the death of the assessee, leading to the conclusion that the notice and subsequent assessment were invalid.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 774836 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 02-07-2025
• Other Referred Cases: Rasid Lala Vs. ITO (2017) Taxmann.com39, Alamelu Veerappan Vs. ITO (2018) 95 Taxmann.com155, Srinath Suresh Chand Ram Naresh Vs. CIT (2005) 145 Taxman 186
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANDIP SARKAR
• Assessee Lawyers: SHUVO CHAKRABOTY
• Keywords: Set aside
• Section: 148

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, KOLKATA BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI SANJAY AWASTHI, ACCOUNTANT MEMBER ITA No.1437/Kol/2025 Assessment Year: 2011-12 Lily Sarkar, Legal Heir of Late Sudhir Chowdhury Mohiskapur Road, B Zone, Durgapur, Dist-Burdwan 713205, W.B-713205. (PAN: AIYPC4460G) Vs ITO, Ward-1(2), Durgapur (Appellant) (Respondent) Present for: Appellant by : Shri Shuvo Chakraboty, A.R Respondent by : Shri Sandip Sarkar, JCIT-Sr. DR Date of Hearing : 02.09.2025 Date of Pronouncement : 03.09.2025 ORDER Per Sanjay Awasthi: This is an appeal filed by the assessee against the order of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre [hereinafter referred to as the ‘CIT(A)’] in appeal no.CIT(A), Durgapur/10164/2018-19 dated 29.01.2025 for assessment year 2011- 12. 2. Shri Shuvo Chakraboty, A.R represented on behalf of the assessee and Shri Sandip Sarkar, Sr. DR represented on behalf of the revenue. 3. It was submitted by the ld. AR that the assessee i.e. Shri Sudhir Chowdhury expired on 18.12.2016. The assessee drew our attention to the death certificate which reads as follows: Printed from counselvise.com ITA No.1437/Kol/2025 Lily Sarkar, Legal Heir of Late Sudhir Chowdhury 2 3.1 It was the submission that the notice u/s 148 of the Act came to be issued in the name of the deceased assessee on 30.03.2018. The ld. AR Printed from counselvise.com ITA No.1437/Kol/2025 Lily Sarkar, Legal Heir of Late Sudhir Chowdhury 3 drew our attention to page 18 of the paper-book which is the copy of the notice issued u/s 148 of the Act, which reads as follows: 3.2 It was the submission that the notice u/s 148 of the Act has been issued on a deceased assessee, therefore, the assessment is liable to be quashed. It was the submission that no fresh notice has been issued on the legal heirs of the assessee either. The ld. AR submitted that for the assessment year 2010-11, on identical circumstances, the ld. NFAC has already quashed the assessment wherein in para 7.3 of the order of the ld. CIT(A) for the assessment year 2010-11 has held as follows: Printed from counselvise.com ITA No.1437/Kol/2025 Lily Sarkar, Legal Heir of Late Sudhir Chowdhury 4 “7.3 During the course of appellate proceedings, the appellant has furnished the death certificate which was issued by Municipal Corporation of Durgapur, Govt. of West Bengal, Durgapur. The death certificate furnished by the legal heir of appellant is perused and found that Shri Sudhir Chowdhury has died on 15.12.2016 whereas the notice u/s 148 was issued on 31.03.2017. From the above facts, it is clear that notice u/s 148 was issued on the deceased person after three months of his death. As per section 159 of the Act, the taxable income of the deceased person should be levied on the collected deceased person. Further, section 159 says that any pending Income Tax Proceedings such as Notices, Assessment Orders and Payable Demand should be completed on the legal representative of the deceased person. As per the provision of income tax Act, no Income Tax notice should be issued on the deceased person and notice should be issued on the legal heir of the deceased person. If any notice is issued and any income tax proceedings is completed on the deceased person, the same notice and the proceedings will be treated as null and void. Further, the appellant hasrelied upon various High Court decision such as Rasid Lala Vs. ITO (2017) Taxmann.com39, High Court of Gujarat, Alamelu Veerappan Vs. ITO (2018) 95 Taxmann.com155, High Court of Madras, Srinath Suresh Chand Ram Naresh Vs. CIT (2005) 145 Taxman 186, High Court of Allahabad. The undersigned perused the decisions which are relied upon by the legal representative of the appellant. The facts of those case laws are squarely applicable into the facts of the appellant's case. In view of the above-mentioned facts, judicial decisions and discussions the assessment could not be made on the deceased person. Therefore, the notice issued u/s 148 of the Act and assessment completed on the deceased person Shri Sudhir Chowdhury is null and void. Hence, the appeal of the appellant is allowed. Ground no. 1, 2 & 3 are decided in favour of the appellant. Ground no. 4 is general in nature.” 3.3 It was the submission that for the assessment year 2011-12, unfortunately, the ld. CIT(A) has dismissed the appeal of the assessee holding that the appeal is not maintainable on the ground that the legal heirs have not been brought on record and the appeal could not have been filed by the deceased person. It was the prayer that the order of the ld. CIT(A) be set aside and that of the Assessing Officer be quashed. In this connection, the findings of the ld. CIT(A) for the impugned assessment year in paras 7.2 & 7.3 is extracted as follows: “7.2 Further it is noted from Form 35, that the appeal is filed in the name of the deceased assessee and the verification alone is made by Smt Minu Chowdhury, the wife and the legal heir of the deceased assessee. The appeal ought to have been filed by the legal heir in the capacity of legal Printed from counselvise.com ITA No.1437/Kol/2025 Lily Sarkar, Legal Heir of Late Sudhir Chowdhury 5 representative of the deceased assessee representing the deceased assessee and not in the name of the deceased assessee. 7.3 The legal heir ought to have filed the relevant documents before the AO and update the records incorporating the legal representative of the deceased assessee before filing the appeal. The jurisdiction to verify and incorporate the details of legal heir and the legal representative lies with the jurisdictional AO only. Hence it is held that the appeal filed in the name of the deceased assessee is not maintainable, therefore dismissed. However, without prejudice to the appellant, the appellant is at liberty to apply for registration of the legal heir details and to be the legal representative of the deceased assessee before the AO and thereafter to file the appeal with request for condonation of delay.” 4. It was put to the ld. Sr. DR that the ld. CIT(A) has recorded that the legal heir incorporation is to be done by the jurisdictional Assessing Officer only. A perusal of the assessment order shows that the Assessing Officer made Lily Sarkar, the daughter of the deceased assessee as a legal heir. A perusal of column 11 of Form 35 clearly shows that legal heir has been specifically identified as the assessee’s wife namely Smt. Minu Choudhury and Smt. Lily Sarkar has denied the status of legal heir and has also denied receipt of any notice. The Form 35 has been signed by Smt. Minu Choudhury. When this was put to ld. Sr. DR, the ld. Sr. DR submitted that she has nothing to say and only relied on the order of the ld. CIT(A). 5. We have heard the rival submissions and perused the materials available on record. A perusal of the facts clearly shows that notice u/s 148 of the Act has not been served on the legal heir. The assessee is deceased. The notice in respect of deceased assessee is to be served on legal heirs first and it is after that the legal heir so specified and brought on record, would represent on behalf of the deceased assessee. Nothing has been done by the Assessing Officer when the Assessing Officer passed the assessment order, he was aware that the assessee was deceased. The Assessing Officer has not mentioned how he has treated Smt. Lily Sarkar as the legal heir. It is further noticed that for the assessment year 2010-11, the ld. CIT(A) quashed the proceedings on Printed from counselvise.com ITA No.1437/Kol/2025 Lily Sarkar, Legal Heir of Late Sudhir Chowdhury 6 account of notice not being issued to the legal heir but on the deceased assessee. This being so, as the notice has been issued by the Assessing Officer on a deceased assessee and even after the knowledge that the assessee is deceased, no action has been taken by the Assessing Officer to issue fresh notice in the name of the legal heir, therefore, the notice u/s 148 of the Act is quashed and the consequential assessment orders are also quashed. 6. In the result, the appeal of the assessee is allowed. Kolkata, the 3rd September, 2025. Sd/- Sd/- [George Mathan] [Sanjay Awasthi] ÛयाǓयक सदèय/Judicial Member लेखा सदèय/Accountant Member Dated: 03.09.2025. RS Copy of the order forwarded to: 1. Appellant - 2. Respondent – 3. CIT(A)- 4. CIT- , 5. CIT(DR), //True copy// By order Assistant Registrar, Kolkata Benches Printed from counselvise.com "