👍👍👍👍👍Section 263 notice issued to a person after his death is invalid

Clipped from: https://taxguru.in/income-tax/section-263-notice-issued-person-death-invalid.html

Mohammad Sharif Siddiqui (Through legal Heir Suhail Siddiqui) Vs ITO (ITAT Mumbai)

In the assessment order itself, the learned Assessing Officer has mentioned that he has come to know through e-portal that assessee has expired in the month of January, 2019. Despite this fact, the assessment order was passed in the name of late Mr. Mohammad Sharif Siddique on 17th December, 2019. This order was revised by the learned PCIT on 29th March, 2022 by an order passed under Section 263 of the Act. This order was also passed in the name of deceased assessee. The factum of the death of the assessee in the month of January, 2019 is mentioned in the assessment order itself. Despite this fact, the learned PCIT passed the order in the name of deceased assessee. Further, the notice for hearing under Section 263 of the Act dated 24thFebruary, 2022 was also issued in the name of dead person. Thus, where the notices were issued to the assessee under Section 263 of the Act after his death the notice could not have been validly served upon the assessee, therefore, said notices are invalid and liable to quash. The assessment order framed under dead person is also liable to be quashed. Consequently, the order under Section 263 of the Act also passed on the dead person is liable to be quashed.

FULL TEXT OF THE ORDER OF ITAT MUMBAI

01. This appeal is filed by Mr. Suhail Siddiqui in ITA No.1179/Mum/2022 against the revisionary order passed by the Pr. Commissioner of Income Tax under Section 263 of the Income-tax Act, 1961 (the Act) in the name of Late Mr. Mohammad Sharif Siddique for A.Y. 2017-18 on 29th March, 2022 wherein the learned PCIT held that assessment order passed under Section 143(3) of the Act dated 17th December, 2019 determining the total income of the assessee at ₹22,30,740/- by the learned Assessing Officer, ward 20(2)(1), Mumbai (the learned Assessing Officer) is erroneous and prejudicial to the interest of the Revenue.

02. This appeal is filed by the legal heir of late Mr. Mohammad Sharif Siddique (the assessee).

03. Brief facts of the case shows that assessee is an individual who filed his return of income for A.Y. 2017-18 on 29th July, 2017 declaring total income of ₹3,20,740/-. The case was selected for limited scrutiny. The learned Assessing Officer noted that during the course of assessment proceedings that assessee expired in the month of January, 2019, the legal heir filed the submission during the course of assessment proceedings and subsequently, the assessment order was passed wherein the addition of ₹19,10,000/- was made in the hands of the assessee as unexplained money, being cash deposited in the assessee’s bank account. The assessment order was passed on 17th December, 2019 in the name of late Mr. Mohammad Sharif Siddique determining total income of ₹20,30,740/-.

04. The learned PCIT on examination of the record that the learned Assessing Officer has failed to initiate the penalty proceedings under Section 271AAC of the Act. Pursuant to that show cause notice was issued under Section 263 of the Act on 24th February, 2022 in the name of late Mr. Mohammad Sharif Siddiqi . Legal heirs responded by filing a letter dated 4th March, 2022. The learned PCIT rejected the explanation of the assessee and held that the non initiation of penalty under Section 271AAC of the Act by the learned Assessing Officer rendering the order erroneous and prejudicial to the interest of the Revenue. He directed the learned Assessing Officer to initiate the penalty proceedings under Section 271AAC of the Act. He passed the order under Section 263 of the Act in the name of Mohammad Sharif Siddique.

05. The legal heir of the assessee is aggrieved with the above order and filed this appeal. The first ground raised is that the 263 order is invalid as same is passed in the name of deceased person. It was also stated that assessment order is also passed in the name of dead person.

06. At the time of hearing, none appeared on behalf of the Therefore, this appeal is decided on the basis of information available on record.

07. The learned CIT Departmental Representative supported the order of the order of the learned PCIT.

08. We have carefully considered the contentions of the learned CIT Departmental Representative and also perused the orders of the lower authorities. In the assessment order itself, the learned Assessing Officer has mentioned that he has come to know through e-portal that assessee has expired in the month of January, 2019. Despite this fact, the assessment order was passed in the name of late Mr. Mohammad Sharif Siddique on 17th December, 2019. This order was revised by the learned PCIT on 29th March, 2022 by an order passed under Section 263 of the Act. This order was also passed in the name of deceased assessee. The factum of the death of the assessee in the month of January, 2019 is mentioned in the assessment order itself. Despite this fact, the learned PCIT passed the order in the name of deceased assessee. Further, the notice for hearing under Section 263 of the Act dated 24thFebruary, 2022 was also issued in the name of dead person. Thus, where the notices were issued to the assessee under Section 263 of the Act after his death the notice could not have been validly served upon the assessee, therefore, said notices are invalid and liable to quash. The assessment order framed under dead person is also liable to be quashed. Consequently, the order under Section 263 of the Act also passed on the dead person is liable to be quashed.

09. In view of this, we have no hesitation in quashing the order passed under Section 263 of the Act. Accordingly, the appeal of the assessee is allowed.

10. In the result, the appeal of the assessee is allowed.

Order pronounced in the open court on 29.12.2022.

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