May 2023

Reassessment Notice Initial notice issued in the name of deceased assessee Invalid Notice and order under section 148A(d) set aside

K. B. Bhujle, Advocate

12. Prakash Tatoba Toraskar vs. ITO
[2023] 452 ITR 59 (Bom)
Date of order: 10th February, 2023
Sections 147, 148, 148A(b) and 148A(d)
of ITA 1961

Reassessment Notice Initial notice issued in the name of deceased assessee Invalid Notice and order under section 148A(d) set aside

The AO issued a notice under section 148 of the Income-tax Act, 1961 dated 30th June, 2021for reopening the assessment under section 147 in the name of the assessee who had died on 4th November, 2019.. Pursuant to the judgment in UOI vs. Ashish Agarwal [2022] 444 ITR 1 (SC) the AO treated the notice issued under section 148 in the name of the deceased assessee to be a show-cause notice under section 148A(b). By that time the assessee had died. The legal heir of the the deceased assessee objected and did not participate in the assessment proceedings. The AO passed an order under section 148A(d).

The legal heir filed a writ petition and challenged the reassessment proceedings and the order under section 148A(d). The Bombay High Court allowed the writ petition and held as under:

i)    Notwithstanding the objection having been taken by the legal heir of the deceased assessee, an order u/s. 148A(d) was passed on June 30, 2022. The initial notice issued u/s. 148 and the subsequent communication dated May 20, 2022 purporting to be a notice u/s. 148A(b) were in the name of the deceased assessee. The notice issued u/s. 148 against a dead person would be invalid, unless the legal representatives submit to the jurisdiction of the Assessing Officer without raising any objection.

ii)    The petition is allowed. The notice dated June 30, 2021 issued u/s. 148, the communication dated May 20, 2022 purporting to be a notice u/s. 148A(b) and the order dated June 30, 2022 u/s. 148A(d) were set aside.

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