9. [2019] 72
ITR 389 (Trib.) (Chand.) S/Sh. Balbir
Singh & Navpreet Singh vs. ITO ITA Nos.: 657
& 658/CHD/2016 A.Y.: 2008-09 Date of order:
13th May, 2019
Section 148 –
Issue of notice u/s 148 is a foundation for reopening of assessment and to be
sent in the name of living person – Where notice is issued in the name of
deceased person, the deceased person could not participate in assessment
proceedings and even provisions of section 292BB could not save such invalid
notice
FACTS
The assessment
for A.Y. 2008-09 of the deceased assessee Balbir Singh was reopened u/s 147 of
the Act by way of issuance of a notice in his name only.
Considering the
manner of service of the notice and the name in which it was issued, the legal
heir contested the validity of the reopening before the Commissioner (Appeals).
However, the Commissioner (Appeals) confirmed the action taken by the AO as to
the reopening as well as on merits.
Aggrieved, the
legal heir of the assessee filed an appeal to the Tribunal.
HELD
The Tribunal
observed that for valid reopening of a case, notice u/s 148 should be issued in
the name of the correct person. The notice has to be responded to and hence it
is a requirement that it should be sent in the name of a living person. This view
was based on the decision of the Bombay High Court in Sumit Balkrishna
Gupta vs. ACIT in Writ Petition No. 3569 of 2018, order dated 15th February,
2019, wherein it was held that the issue of a notice u/s 148 of the Act
is the foundation for reopening of assessment.
It also relied
on another decision of the Delhi High Court in Rajender Kumar Sehgal vs.
ITO [2019] 101 taxmann.com 233 (Delhi) wherein it was held that where
the notice seeking to reopen assessment was issued in the name of a deceased
assessee, since she could not have participated in reassessment proceedings,
provisions of section 292BB were not applicable to the case and as a
consequence the reassessment proceedings deserved to be quashed.
On the argument
of the learned D.R. that the legal heir of the assessee ought to have informed
the AO of the fact of the assessee’s death, the Tribunal said this contention
had no force because the notice was not served through registered post / or by
regular mode of service but was allegedly served through a substituted mode of
service, i.e., by affixation of the same at the door of the house of the
assessee and the report of service through affixation had not been witnessed by
any person.
The Tribunal
remarked, ‘It is not believable that the Revenue officials had visited the
house of the assessee and they could not get the information about the death of
the assessee despite affixation of the notice which is also required to be
witnessed by some independent / respectable (sic) of the village.’
The Tribunal
also found that even otherwise, the notice was never served at the address at
which the assessee was actually residing before death, which address was
available in a document with the Income Tax Officer.
Based on these
factual and legal grounds, the notice u/s 148 was held to be invalid.
