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Judgment
PER VIMAL KUMAR, JM:
The appeal filed by the appellant/assessee is against order dated 23.09.2025 of the Ld. Commissioner of Income Tax (Appeals)/NFAC, Delhi [hereinafter referred to as “the CIT(A)”] under section 250 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) arising out of assessment order dated 24.12.2018 of Ld. Assessing Officer/ ITO, Ward 52(5), New Delhi (hereinafter referred to as ‘the AO’) u/s 147 r.w.s. 144 of the Act for A.Y. 2011-12.
Brief facts of the case are that the assessee Shri Vinod Kumar Gupta filed return of income declaring income of Rs. 12,69,090/- on 27.03.2012. The return of income was processed u/s 143(1) of the Act. No assessment u/s 143(3) of the Act was made. An information was received from income ADIT, (Investigation), Unit- 3(2), Jhandewalan, New Delhi in relation of the assessee, who had made high and consistent cash deposit in accounts held by him in Kotak Mahindra Bank, ICICI Bank and CITI Bank to the tune of Rs. 15,41,15,282/-. Ld. AO had reasons to believe that a sum of Rs. 15,41,15,282/-chargeable to tax had escaped assessment for A.Y. 2011-12. From the report of investigation wing it was gathered that the assessee expired on 19.01.2016. After reopening notice u/s 148 of the Act to LR’s of assessee were issued on 31.03.2018. No reply was received. Show cause notice along with notice u/s 142(1) of the Act dated 07.12.2018 was issued to the LR’s of assessee. On completion of proceedings, ld. AO vide order dated 24.12.2018 made addition of Rs. 15,11,49,146/-.
Against order dated 24.12.2018 of Ld. AO, the assessee filed appeal before the ld. CIT(A) which was dismissed the appeal vide order dated 23.09.2025.
Being aggrieved, the appellant/assessee through LR’s filed present appeal.
Ld. Authorized Representative for appellant/assessee submitted that notice u/s 148 of the Act dated 31.03.2018 issued to the assessee Sh. Vinod Kumar Gupta who expired on 19.01.2016 at page No. 67 of paper book is illegal. Reliance was placed order dated 15.02.2016 in W.P.(C) 8273/2015 & CM No. 17434/2015 Vipin Walia vs. ITO and order dated 17.01.2022 in C.W.(C) No. 9227/2021 titled as Dharamraj vs. ITO.
Ld. Departmental Representative relied on impugned order.
From examination of record in light of the aforesaid rival contention, it is crystal clear that notice u/s 148 of the act dated 31.03.2018 is in name of assessee Sh. Vinod Kumar Gupta who had expired on 19.01.2016.
Hon’ble High Court of Delhi in writ petition No. CN 227/2021 titled as Dharamraj vs. ITO in order dated 17.01.2022 held as under:
“8.The issue of validity of a notice and proceedings held subsequent thereto against a dead person is no longer res integra. This Court in Savita Kapila vs. Assistant Commissioner of Income-Tax, in W.P. (C) No.3258/2020 has held as under:
"AN ALTERNATIVE STATUTORY REMEDY DOES NOT OPERATE AS A BAR TO MAINTAINABILITY OF A WRIT PETITION WHERE THE ORDER OR NOTICE OR PROCEEDINGS ARE WHOLLY WITHOUT JURISDICTION. IF THE ASSESSING OFFICER HAD NO JURISDICTION TO INITIATE ASSESSMENT PROCEEDINGS, THE MERE FACT THAT SUBSEQUENT ORDERS HAVE BEEN PASSED WOULD NOT RENDER THE CHALLENGE TO JURISDICTION INFRUCTUOUS.
24.Further, the fact that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequent would have no legs to stand. If the notice goes, so does the order of assessment. It is trite law that if the Assessing Officer had no jurisdiction to initiate assessment proceeding, the mere fact that subsequent orders have been passed would not render the challenge to jurisdiction infructuous. xxxxx
THE SINE QUA NON FOR ACQUIRING JURISDICTION TO REOPEN AN ASSESSMENT IS THAT NOTICE UNDER SECTION 148 SHOULD BE ISSUED TO A CORRECT PERSON AND NOT TO A DEAD PERSON. CONSEQUENTLY, THE JURISDICTIONAL REQUIREMENT UNDER SECTION 148 OF THE ACT, 1961 OF SERVICE OF NOTICE WAS NOT FULFILLED IN THE PRESENT INSTANCE. xxxxx
26.In the opinion of this Court the issuance of a notice under Section 148 of the Act is the foundation for reopening of an assessment. Consequently, the sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. [See Sumit Balkrishna Gupta v. Asst. Commissioner of Income Tax, Circle 16(2), Mumbai & Ors., (2019) 2 TMI 1209- Bombay High Court].
27.xxxxx Consequently, in view of the above, a reopening notice under Section 148 of the Act, 1961 issued in the name of a deceased assessee is null and void. xxxxxx
AS IN THE PRESENT CASE PROCEEDINGS WERE NOT INITIATED/PENDING AGAINST THE ASSESSEE WHEN HE WAS ALIVE AND AFTER HIS DEATH THE LEGAL REPRESENTATIVE DID NOT STEP INTO THE SHOES OF THE DECEASED ASSESSEE, SECTION 159 OF THE ACT, 1961 DOES NOT APPLY TO THE PRESENT CASE.
30.Section 159 of the Act, 1961 applies to a 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 assessee. Since that is not the present factual scenario, Section 159 of the Act, 1961 does not apply to the present case.
31.xxxxx THERE IS NO STATUTORY REQUIREMENT IMPOSING AN OBLIGATION UPON LEGAL HEIRS TO INTIMATE THE DEATH OF THE ASSESSEE.
32.This Court is of the view that in the absence of a statutory provision it is difficult to cast a duty upon the legal representatives to intimate the factum of death of an assessee to the income tax department. After all, there may be cases where the legal representatives are estranged from the deceased assessee or the deceased assessee may have bequeathed his entire wealth to a charity. Consequently, whether PAN record was updated or not or whether the Department was made aware by the legal representatives or not is irrelevant. In Alamelu Veerappan (supra) [2018 (6) TMI 760 - Madras High Court] it has been held "nothing has been placed before this Court by the Revenue to show that there is a statutory obligation on the part of the legal representatives of the deceased assessee to immediately intimate the death of the assessee or take steps to cancel the PAN registration." xxxxx
34.Consequently, the legal heirs are under no statutory obligation to intimate the death of the assessee to the Revenue.
SECTION 292B OF THE ACT, 1961 HAS BEEN HELD TO BE INAPPLICABLE, VIS-À-VIS, NOTICE ISSUED TO A DEAD PERSON IN RAJENDER KUMAR SEHGAL [2018 (12) TMI 697 (DELHI)], CHANDRESHBHAI JAYANTIBHAI PATEL [2019 (1) TMI 353 -GUJARAT HIGH COURT] AND ALAMELU VEERAPPAN [2018 (6) TMI 760 - MADRAS HIGH COURT].
35.This Court is of the opinion that issuance of notice upon a dead person and non-service of notice does not come under the ambit of mistake, defect or omission. Consequently, Section 292B of the Act, 1961 does not apply to the present case.
IN RAJINDER KUMAR SEHGAL (SUPRA) A COORDINATE BENCH OF THIS COURT HAS HELD THAT SECTION 292BB OF THE ACT, 1961 IS APPLICABLE TO AN ASSESSEE AND NOT TO A LEGAL REPRESENTATIVE. xxxxx
38.This Court is also of the view that Section 292BB of the Act, 1961 is applicable to an assessee and not to a legal representative. Further, in the present case one of the legal heirs of the deceased assessee, i.e. the petitioner, had neither cooperated in the assessment proceedings nor filed return or waived the requirement of Section 148 of the Act, 1961 or submitted to jurisdiction of the Assessing Officer. She had merely uploaded the death certificate of the deceased assessee. xxxxxx
40.Consequently, the applicability of Section 292BB of the Act, 1961 has been held to be attracted to an assessee and not to legal representatives."
9.The above judgment was followed by this Court in W.P.(C) No.2678/2020 titled Mrs. Sripathi Subbaraya Manohara L/H Late Sripathi Subbaraya Gupta vs. Principal Commissioner of Income Tax 22, N.Delhi & Anr.
10.In the present case also, as the notice under Section 148 of the Act was issued against a dead person, the same is null and void and all consequent proceedings/orders, including the assessment order and the subsequent notices, being equally tainted, are liable to be set aside.
11.Consequently, the impugned notice dated 30.03.2019 issued under Section 148 of the Act is set aside along with all consequential proceedings/notices/assessment orders.”
In view of the above material facts of issuance of notice u/s 148 of the act dated 31.03.2018 to Sh. Vinod Kumar Gupta who died on 19.01.2016 page No. 67 of paper book by respectfully following the well settled legal position is held to be null and void. Consequential proceedings and assessment orders are set aside. Grounds of appeal are accepted.
In the result, the appeal filed by the assessee is allowed for statistical purposes.