, , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . . , BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER& SHRI D.S. SUNDER SINGH, ACCOUNTANT MEMBER M . A .NO. 29 /VIZ/201 9 (ARISING OUT OF I.T.A NO.2 27 /VIZ/201 7 ) ( / A SSESSMENT Y EAR : 20 0 7 - 08 ) INCOME TAX OFFICER WARD - 2 ( 1 ) GUNTUR ( / APPELLANT) VS. SRI AEMALA VENKATESWARA RAO ASST.IN THE NAME OF AEMALA NIRMALA DEVI L/R OF SRI AEMALA VENKATESWARA RAO D.NO. 5 - 93 - 39 , 6/13 , BRODIPET GUNTUR [PAN :A ESPA0834Q ] ( / RESPONDENT) / APPELLANT BY : SHRI B.RAMA KRISHNA, DR / RESPONDENT BY : SHRI C.KAMESWARA RAO, AR / DATE OF HEARING : 0 6 .0 3 .2020 / DATE OF PRONOUNCEMENT : 06 .0 3 . 20 20 / O R D E R P ER SHRI D.S.SUNDER SINGH, ACCOUNTANT MEMBER : IN THE INSTANT CASE, THE REVENUE HAS FILED MISCELLANEOUS APPLICATION AGAINST THE ORDER PASSED BY THIS TRIBUNAL IN I.T.A. NO.227/VIZ/2017 DATED 03.04.2019 FOR THE ASSESSMENT YEAR 2007 - 08. IN THE INSTANT CASE, THE TRIBUNAL HAS QUASHED THE NOTICE ISSUED U/S 1 48, HOLDING THAT THE ISSUE OF 2 M .A. NO . 29 /VIZ/201 9 , A.Y.20 0 7 - 08 S RI AEMALA VENKATESWARA RA, GUNTUR NOTICE U/S 148 ON A DEAD PERSON IS INVALID. THE DEPARTMENT HAS FILED MISCELLANEOUS PETITION STATING THAT THERE WERE SOME MISTAKES IN THE ORDER OF THE TRIBUNAL AS UNDER : 4.1 . IN THE PRESENT CASE, THE HONBLE TRIBUNAL RECORDED FACTS WHICH ARE INCORRECT BASED ON THE MATERIAL AVAILABLE ON RECORD AND AS PER THE FACTS ESTABLISHED BY THE AO IN THE ASSESSMENT ORDER. CORRECT FINDING OF THE FACT ESTABLISHED BY THE AO IS GIVEN BELOW AGAINST THE FACT STATED BY THE HONBLE TRIBUNAL. INCOR RECT FINDING OF FACT MADE BY THE HONBLE TRIBUNAL FINDING OF FACT ESTABLISHED BY THE AO FACT TO HAVE PROBABLY BEEN ADDUCED BY THE HONBLE ITAT FROM THE FACTS ESTABLISHED BY THE AO THE NOTICE WAS RECEIVED BY SMT.A.NIRMALA DEVI, W/O SHRI LATE VENKATESWARA RAO WHO REPLIED TO THE ASSESSING OFFICER (AO)STATING THAT HER HUSBAND SHRI VENKATESWARA RAO HAS EXPIRED IN 2009 AND DID NOT FURNISH THE RETURN OF INCOME ASSESSING OFFICER VIDE PARA (IX) OF PAGE 4 OF ASSESSMENT ORDER STATED THAT IN RESPONSE TO IT, THE L.R INFORMED THAT HER HUSBAND DIED ON 03.11.2009. SHE STATED THAT THE R.O.I FILED ORIGINALLY ON 29.10.2007 MAY BE TREAD AS R.O.I FILED IN RESPONSE TO THE NOTICE ISSUED U/S 148 ASSESSEE DID FURNISH THE RETURN OF INCOME AND THAT THE SAME WAS ADMITTED BY THE LR OF THE ASSESSEE TO BE TREATED AS ONE IN RESPONSE TO THE NOTICE ISSUED U/S 148 OF THE ACT. SINCE THERE WAS NO COMPLIANCE FOR THE NOTICE U/S 148, THE AO HAD ISSUED THE NOTICE U/S 142(1) AND THE ASSESSMENT WAS COMPLETED U/S 144 R.W.S. 147 DATED 20.03.2013 DE TERMINING TOTAL INCOME OF RS.1,72,76,310/ - AND RAISED THE DEMAND OF RS.64,50,000/ - ASSESSING OFFICER VIDE PARA (V) OF PAGE 3 OF ASSESSMENT ORDER STATED THAT IN RESPONSE TO THE SAID NOTICE, THE WIFE OF THE ASSESSEE, SMT. A. NIRMALA DEVI BY HER LETTER DATED 25.04.2012 STATED THAT SHE RECEIVED THE SAID NOTICE AND HER HUSBAND EXPIRED IN THE YEAR 2009. ASSESSING OFFICER VIDE PARA (IX) OF PAGE 4 OF ASSESSMENT ORDER STATED THAT IN RESPONSE TO IT, LR OF THE ASSESSEE DID RESPOND TO THE NOTICE ISSUED U/S 148 OF THE ACT AND HENCE THERE WAS A COMPLIANCE BY THE LR TO THE NOTICE IS SUED U/S 148. 3 M .A. NO . 29 /VIZ/201 9 , A.Y.20 0 7 - 08 S RI AEMALA VENKATESWARA RA, GUNTUR THE L.R. INFORMED THAT HER HUSBAND DIED ON 03.11.2009. SHE STATED THAT THE R.O.I FILED ORIGINALLY ON 29.10.2007 MAY BE TREATED AS R.O.I FILED IN RESPONSE TO THE NOTICE ISSUED U/S 148. 2. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE ORDERS PASSED BY THE LOWER AUTHORITIES AS WELL AS THE ORDER OF THE TRIBUNAL AND FIND THAT THE ASSESSING OFFICER (AO) HAD MENTIONED IN THE ASSESSMENT ORDER IN PARA NO. (IX) OF PAGE NO.4 THAT IN RESPONSE TO THE NOTICE ISSUED, THE LD.AR INFORMED THAT HER HUSBAND DIED ON 03.11.09. SHE ALSO STATED THAT THE RETURN OF INCOME FILED ORIGINALLY ON 29.10.2007 MAY BE TREATED AS RETURN IN RESPONSE TO THE NOTICE ISSUED U/S 148, HOWEVER SHE HAS NOT FILED THE RETURN OF INCOME AS DIRECTED U/S 148 OF THE A CT. 3. IN THE MISCELLANEOUS APPLICATION, THE AO HAS SUBMITTED THAT THE FACTS OF THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF ALAMELU VEERAPPAN VS. ITO 95 TAXMANN.COM 155 IS DISTI NGUISHABLE WITH THE FACTS OF THE ASSESSEES CASE, THEREFORE, THE CASE LAW IS NOT APPLICABLE IN ASSESSEES CASE. THE AO CONTENDED THAT IN THE CASE LAW RELIED UP ON BY THE ASSESSEE, THE LEGAL HEIR NEITHER RESPONDED TO THE NOTICE NOR PARTICIPATED IN THE ASSE SSMENT PROCEEDINGS WHEREAS IN THE ASSESSEES CASE THE LEGAL HEIR 4 M .A. NO . 29 /VIZ/201 9 , A.Y.20 0 7 - 08 S RI AEMALA VENKATESWARA RA, GUNTUR RESPONDED TO THE NOTICE THUS THE FACTS OF THE CASE LAW STATED TO BE DISTINGUISHABLE AND HAS NO APPLICATION TO THE CASE. 4. ON THE OTHER HAND, THE LD.AR SUBMITTED THAT THERE IS NO MATERIAL DIFFERENCE IN THE FACTS SUBMITTED BY THE AO FROM THE FINDINGS OF THE T RIBUNAL. IN THE ORDER OF THE T RIBUNAL , THE ITAT STATED THAT THE ASSESSEE HAS NOT FURNISHED THE RETURN OF INCOME , SINCE THE SAME IS CORRECT FACT. THE AO NEITHER SERVED THE NOTICE ON ALL THE LEGAL HEIRS NOR DID THE LEGAL HEIRS FILE THE RETURN OF INCOME. LD.A.R ARGUED THAT AS PER THE DECIDED CASE LAWS , NOTICE REQUIRED TO BE SERVED ON ALL THE LEGAL HEIRS AND ALL THE LEGAL HEIRS HAVE TO FILE THE RETURN OF INCOME DULY VERIFIED AND SIGNED BY AL L OF THEM. MERE FILING A LETTER FROM THE WIFE OF THE DECEASED CANNOT BE TREATED AS SUFFICIENT COMPLIANCE TO THE NOTICE AND THE SAME CANNOT BE TREATED AS VALID RETURN IN THE CASE OF DEAD PERSON. THUS ARGUED THAT THERE WAS NO MISTAKE IN THE FINDING OF THE IT AT WITH REGARD TO NON COMPLIANCE TO THE NOTICE ISSUED U/S 148. EVEN IF IT IS CONSIDERED THAT THE LEGAL HEIR HAS FURNISHED A LETTER STATING THAT THE RETURN OF INCOME FILED MAY BE TREATED AS RETURN IN RESPONSE TO NOTICE ISSUED U/S 148, THERE IS NO NEED TO R ECALL THE ORDER , SINCE THE ISSUE UNDER DISPUTE IS VALIDITY OF ISSUE OF NOTICE ON A DEAD PERSON. THE FACT REMAINS THAT THE NOTICE WAS ISSUED ON A DEAD PERSON WHICH WAS RENDERED INVALID, THEREFORE, ARGUED THAT THERE IS NO MISTAKE IN THE ORDER. WITH REGARD 5 M .A. NO . 29 /VIZ/201 9 , A.Y.20 0 7 - 08 S RI AEMALA VENKATESWARA RA, GUNTUR T O THE APPLICATION OF CASE LAW OF ALAMELU VEERAPPAN OF MADRAS HIGH COURT, THE LD.AR ARGUED THAT AT THE TIME OF HEARING THE APPEAL, THE LD.DR DID NOT DISTINGUISH THE CASE LAW, FURTHER FACTS OF THE CASE LAW SQUARELY APPLICABLE IN THE INSTANT CASE, HENCE, NO I NTERFERENCE IS CALLED FOR IN THE ORDER OF THE TRIBUNAL. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL PLACED ON RECORD. IN THE INSTANT CASE, AS OBSERVED BY THIS TRIBUNAL IN ITS ORDER, THE LEGAL HEIR DID NOT FILE THE RETURN OF INCOME FOR THE NOTICE ISSUED U/S 148. HOWEVER, SHE HAS FILED THE LETTER IN RESPONSE TO NOTICE U/S 148, REQUESTING TO TREAT THE RETURN OF INCOME FILED ON 29.10.2007 AND THE SAME CANNOT BE TREATED AS SUFFICIE NT COMPLIANCE, SINCE ALL THE LEGAL HEIRS REQUIRED TO SIGN THE RETURN AND THE AO FAILED TO BRING THE LEGAL HEIRS ON RECORD. THE FACT REMAINED THAT NOTICE WAS ISSUED ON DEAD PERSON, SHRI AEMALA VENKATESWARA RAO , WHICH IS INVALID. THOUGH THE NOTICE WAS SERVE D ON THE WIFE, WE OBSERVE FROM THE ORDER OF THE AO THAT SHE HAS NOT PARTICIPATED IN THE ASSESSMENT PROCEEDINGS AND THE AO DID NOT CONDUCT THE PROCEEDINGS ON THE LEGAL HEIR BY ISSUE OF FRESH NOTICE. FROM THE ASSESSMENT ORDER PAGE NO.4 PARA NO.(XIV), IT IS FOUND THAT THE LEGAL HEIR NEITHER PARTICIPATED IN THE ASSESSMENT PROCEEDINGS NOR COMPLIED WITH THE NOTICE ISSUED U/S 143(2). THUS, THE LEGAL HEIR DID NOT PARTICIPATE IN THE ASSESSMENT AND HENCE THE 6 M .A. NO . 29 /VIZ/201 9 , A.Y.20 0 7 - 08 S RI AEMALA VENKATESWARA RA, GUNTUR ASSESSMENT WAS COMPLETED U/S 144 OF THE A CT. THEREFORE, THE FACTS OF THE CASE LAW RELIED UPON BY THIS TRIBUNAL IN THE CASE OF ALAMELU VEERAPPAN VS. ITO (SUPRA) OF HONBLE MADRAS HIGH COURT IS SQUARELY APPLICABLE IN THE ASSESSEES CASE. APART FROM THE ABOVE, THE TRIBUNAL ALSO RELIED ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF SUMIT BALKRISHNA GUPTA. V. ASSISTANT COMMISSIONER OF INCOME - TAX, CIRCLE 16(2), MUMBAI , 103 TAXMANN.COM 188 AND HELD THAT THE NOTICE ISSUED U/S 148 ON A DEAD PERSON IS INVALID. IN THE INSTANT CASE AS DISCUSSED EARLIER WE, FIND NO MISTAKE IN THE ORDER , HENCE, WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. 6. IN THE RESULT, MISCELLANEOUS APPLICA TION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH MARCH, 2020. SD/ - SD/ - ( . ) ( . . ) (V. DURGA RAO) ( D.S. SUNDER SINGH ) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /VISAKHAPATNAM /DATED : 06 . 0 3 .20 20 L.RAMA, SPS 7 M .A. NO . 29 /VIZ/201 9 , A.Y.20 0 7 - 08 S RI AEMALA VENKATESWARA RA, GUNTUR / COPY OF THE ORDER FORWARDED TO: - 1 . / THE REVENUE INCOME TAX OFFICER , WARD - 2(1) , GUNTUR 2. / THE ASSESSEE - SRI AEMALA VENKATESWARA RAO, ASST.IN THE NAME OF AEMALA NIRMALA DEVI, L/R OF SRI AEMALA VENKATESWARA RAO, 5 - 93 - 39; 6/13 BRODIPET, GUNTUR 3. / THE PR.COMMISSIONER OF INCOME TAX , GUNTUR 4. ( ) - 1/ THE COMMISSIONER OF INCOME - TAX (APPEALS) - 1 , GUNTUR 5 . , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // SR. PRIVATE SECRETARY ITAT, VISAKHAPATNAM