VIRENDRA SINGH THRU LEGAL HEIR SANGEETA THAKUR,INDORE V. INCOME TAX OFFICER, INDORE

ITA 203/IND/2024

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The case involves two appeals filed by the legal representative of the deceased assessee, Virendra Singh, against the assessment orders passed in the name of the deceased for the assessment years 2012-13 and 2017-18. The legal representative contended that the orders were non-est in law as they were passed in the name of a deceased person despite prior intimation of death to the AO. The Revenue argued that the proceedings were validly initiated against the deceased before his death, and thus, could continue against the legal representative. The tribunal examined the legal provisions and relevant judicial precedents to determine the validity of the assessment orders.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 469976 (ITAT-INDORE)
• Duration Of Justice: 7 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-10-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-10-2024
• Assessment Year: 2017-2018
• Appeal Filed On: 04-03-2024
• Other Referred Cases: Late Shri Motilal Hastimalji Bothra, ITA No. 2316/Mum/2023, Savita Kapila v/s ACIT, Maruti Suzuki India Limited, Spice Brfotainment, Chandeeshihas Joyantihas Patel vs. The Income Tax Officer, Smt Sudha Prosad vs. ACIT, Rajender Kumar Sehgal vs. ACIT, Alamelu Veerappan vs. The Income Tax Officer
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Scheme of amalgamation
• Section: 147; 148; 144; 143(2); 208; 139

Judgement Text

"sree anitehta siftroror, sate arto, Sate IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER ‘AND SHRI B.M. BIYANI, ACCOUNTANT MEMBER FPA No. 204/Ind/2024(AY: 2012-19) ITA No. 203/Ind/2024(AY: 2017-18) Virendra Sing way _ | Heowe Tex OMTcer7 (theowga L/R~ Smt SATAY | perryacir su) Sangecta Thaleurl ve | maore 125/126 Patnipur, Indore (PAN:AGOPSS9890) (Ranensee/Appellant| TRevenue/ Respondent) Taaeasee by Shi Venus Rewka, AR Revenue by Shr: Ram Kumor Vaday, CIEDR Date of Hearing 14102034, Date of Prououstement \\@-10.2024 = JORDER Per B.M. Biyani, AM: ‘The captioned two appeals have been filed by asscssce as per following details: (i) ITA No, 204/ind/2024 is directed against appeal-order dated 17.01.2024 passed by learned Commissioner of IncomeTax |Appeal)- FAC, Delhi [CIT(A)\"| which in turn erises out of assessment-order duted 06.12.2019 passed by learned DCIT-A(1], Indore FAO\"| u/s Page 1 of 12 Le Virendra Singh (Through L/R Smt. Sangeeta Thaur} TTA 203 & 204/Ind/2024.. AY 2017-18 & 2012-18 147/144 of the Income Tax Act, 1961 [the Act (fave) 2012-19. fi] TTA No. 203/Ind/2024 is directed against appeal-order dated 17.01.2024 passed by seme CIA) which in tum arises out of assessment-order dated 24.12.2019 passed by learned DOMT/ACIT {1}, Indore [AO\"] u/s 144 of the Act for Assessment-Year AY\" 2017- 18. 2. Heard the Ld. Representative of both sides und case-records perused, 3. Since these appeals relate to the same assessee and the issues are slso identieal; they were heard lagether at the request of parties and ure being disposed of by this consolidated order for the sake of convenience and brevity. 4, The assessee has raised various grounds in respective Form No. 36 ly raised in both filed for both appeals. However, the Ground No. 1 identi appeals is a legal ground reading as under: “1, That the Ld. AO erred in tow and facts of the ease and passed the assessment order in. the nome of deceased person even when. AO was very well intimated curing assessment proceedings about his death and therefore order framed in the name of deceased assessee is non-est in lavw and lable ta be quashed.” Id. AR for assessce/appellant firstly submitted that the assessce ‘Shri Virendsa Singh’ expired on 29.09.2019, copy of death-certifieate is filed at Page 3 of Paper-Rook for AY 2012-13, Therefore, the Legal Page 2 of 12 4 — Virencira Singh {Through L/R Smt. Sangeeta Thaur} TTA 203 & 204/Ind/2024- AY 2017-18 & 2012-23 Representative ['L/R\"] Smt. Sangeeta Thales’ ie representing the deceased asnensee in these appeals. He submitted that the intimation about death of assessee was given to the AO vide letter dated 20.11.2019 prior to passing of assessment-order dated 06.12.2019 for AY 2012-15, copy st Page 7 of Paper-Rook for AY 2012-13,, The AO has also acknowledged assessce's letter of intimation of death in Pura 6 of assessment order for AY 2012.15. He submitted that so far as AY 2017-18 is conceed, the L/R alse updated death stams of assesace on income-tax portal on 21.12.2019 prior to pausing of asscesment-order dated 24.12.2019 for AY 2017-18, screenshots of income-tax portal are Bled al Page 25-26 of Paper-Book for AY 2017-18. ‘Thus, the assessce has given proper intimations to AO before passing both asscsament-orders af respective years 6. ‘Then, Ld. AR drew us to both assessment-onders passed by AO for AY 2012-13 & 2017-18 to show that the AO has passed those orders in the name of *Virendra Singh” which was a deceased person. Ld, AR contended that such orders passed in the name of deceased person, despite intimation by L/R, are invalid or non-est in the eyes of law and must be quashed. 7. In support of hie contention, Ld, AR relied upon certain judicial rulings, the most relevant being TAT, Mumbai in Late Shri Motilal Hastimalji Bothra, ITA No. 2316/Mum/2023, dated 16.10.2023, Ld. AR submitted that in this decision, it was held that where the proceeding hhave been initiated against a deceased person prior lo death and the L/R Page 8 of 12 ees Virendra Singh (Through I/R Smt. Sangeeta Thamr] ITA 203 @ 204/Ind/2024 - AY 2017-18 6 2012-13 did not inform AO about death of deceased during proceedings, even then the assessment order framed in the name of deveused person is nom eat in law liable to be quashed. He submitted that in coming to such conchusion, the TTAT, Mumbai has also noted thet there is no statutory provision obligating the L/R to intimate the AQ about death of deceased. Me submitted that the present cases of asvewsee are much better than the exe of ITAT, Mumbai because there was cn intimation to AO about death of assesnee before passing assessment-orders, Accordingly, Ld, AR prayed to quash the assossment-orders passed by AO. Per contra, Ld. DR for revenue gubmitied that the assessee deceased on 29.09.2019, He submitted thet ITA No, 204/tnd/2024 for AY 2012-13 involves & siluation of re-assessment u/s 147 wherein the notice u/s 148 vwas served on 26.08.2019 upon deceased person. Further, the ITA No, 203/Ind/2024 for AY 2017-18 has a situation of regular assessment u/s 143(2) wherein the notice u/s 1453/2) was served on 24.08.2018 upon deceased person. ‘Thus, the notices u/s 148 and 143(2) initiating the proceeding of re-ussessment/regular assesament were served upon the deceased person prior to death, He submitted that in tetms of section 159{2)(9), any proceeding taken against a deceased persom before hie deaths shall be deemed to have heen taken against the L/R and may be continued against the L/R from the stage atwhich il slond on the date of death of the deceased and in terms of section 159(3}, the L/R of the deceased shall, for the purpose of this Act, be deemed ta be an assesses, Therefore, since the Page 4 of 12 ees Virendira Singh {Through L/R Smt. Sangesta Thence] TTA 203 & 204/Inui/2024 - AY 2017-18 & 2012-18 ‘AO has validly initiated proceedings of re-asscssmicnt/regular asscssment against deceaned person before death, those proceedings were rightly ‘continued against the L/R. He submitted that the position would have been ifferent had the AO issued notices u/s 148/143(2) in the name of deceased person after death which is not the present cases at all, He submitted that the assessee docs not and cannot have any objection ‘against initiation of proceeding against deceased person and cherealler continuation of same against L/R. The assessee has a limited objection tut the asscsament-orders were passed in the mame of deceased person despite intimation to AO before passing of asscsament-orders, In such a situation, according to Ld, DR, at the best it uiuy be treuled os un ‘rvegularity in the body of assesement-onders and for that reason, the assessment-orders cannot be quashed. He submitted that either the bench should uphold assessment-orders or at best it may remand to AO for passing asseuument-orders affesh in the names of legal xepresentative(s} He strongly prayed for second course of action i.e. remanding to AO. 9. We have considered rival submission of both sides and carefully examined the grievance raised by asscssee in the light of judicial rulings ited before us. At inst, we re-produce the relevant paras of ITAT, Mumba in Late Shri Motital Hastimay! Bothra supra) relied by Li, AR for “6, We find that in the statement of facts fled before the learned! CIS), the legal heir of the assesase speciicaty submitted that the assessee sucumbed Page 5 of 12 Leet Virendra Singh {Through L/R Smt. Sangeeta Thar} \"TTA 208 & 204/ind/2024 - AY 2017-28 & 2012-13 fo cancer on 06/08/2015. We find that in this regard the Death Certificate of the assessce and the medical report were also furnished alongasith the appeat before the learned CLITA) Thus, #48 evident Oud the assessee exgrircd much Defore the passing of the assessment order ov 24/02/2016 and even ail the notices except dated 24/06/2015 were issued after the death of the assessee oe 067 08) 5018, During the hearing, the learned DIE submitted that there was to intimation 1 the AQ by the legal heirs regarding the demise of the lassessce. i find that while rejecting similar arguments, the Hontbte Delhi High Court in Savtta Kapila v/s ACIT, [2020] 273 Taxman 148 (Del) observed as under ‘32. This Cowt is of the view that in the absence of @ statutory “provision iis difficult to east « duty upon the legal representarives 10 fuimate the factum of death of an assessee 10 the ineoine tax department. After all, there may be cuses where the legal Japresentatives are estranged from the deceased assessee or the Geccased assesaee may have bequeathed Nis entire wealth to Ghanty, Consequently, iwhether PAN record wus updated oF not or tohether the Department was made avare by the legal representatives Or not f ivelevant. in Alamels Veerappan fsupra) it has beer held rotting has been placed before this Court by the Revenue to show that there tga statutory obligation on the part of the legal representatives of he deceased assessee to immediately intimate the death of the ‘assesses oF take ateps to cancel the PAN registration. 7, Undoubtedly as per section 159 of the Act, where a person dies, his tegal representative shall be lable to pay any sum which the deceased would have boon Kable to pay if he had not died, in the ike manner and tothe same extent as the deceased. However, undisputedly in the present case, after the death of the assesses, his legal heir was net brought on the record anul no notice was ssued m the name ofthe legal hetr. Therefore, the assessment order framed in the name of the deceased ussesses is nonvest in faa and hence is quashed ‘Since the relief 1 granted or ihis shart issue, the other grounds raised in the (present appeal are rendered academic and tus are kept open. 8. In the result the appeal by the assessee is allowed.” 10. Thus, the Hon'ble ITAT, Mumbai has only tuken a Para No. 32 from the order Hon'ble Delhi High Court in Savita Kapila Vs. ACIT that there is no statutory provision casting a duty upon legal heirs to intimate the death of deceased to AO and accordingly held that the assessnent order made by AO ia the name of deceased person was non-est. But if we carefully look into Para 25 & 26 of the order of Savita Kapila, we find that their lordship have Page 6 of 12 ie Virendira Singh (Through 1/R Smt. Sangesta Thaur} TTA 203 & 204/Ind/2024 - AY 2017-18 & 2012-23 clearly noted that the AO issue notice u/s 148 to the deceased person after death. They further held that the notice could never be served upon a dead person, consequently the jurisdictional requirement u/s 148 vas not fulfilled and also held that the sine gua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. They further observed that the requirement of issuing notice to a correct person and not to a deceased person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. Thereafter, in Para 30 of the order, their lordship have also noted that “Section 139 of the Act, 1961 applies to @ situation where proceedings are initiated / pending against the assessee when he is alive and after his death the legal representative steps into the shoes of the deceased assesses. Since that is not the present factual scenario, Section 159 of the Act, 1961 does nol apply to the present case.\" Even in Para 33, their lordship took support from Marutt Suaukt Ltd. (Supreme Court) which was also a case wherein the AO issued jurisdictional notice u/s 149(2) to @ non-existent company. The relevant portion of order of Hon\"ble Delhi High Court while highlighting these paras is re-produced below for an immediate reference: