IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM (Through web-based video conferencing platform)

BEFORE SHRI N.K. CHOUDHRY, HON’BLE JUDICIAL MEMBER &

SHRI D.S. SUNDER SINGH, HON’BLE ACCOUNTANT MEMBER I.T.A. No. 115/VIZ/2020 (Asst. Year : 2009-10)

ITO, Ward-1(1), vs. Smt. Gorrepati Pushpalatha, Vijayawada. L/H of Gorrepati Raghava Reddy, D.No. 31-23-6, Srinivasa Nilayam, Eluru Road, Maruthi Nagar, Vijayawada.

PAN No. AFHPG 6683 H (Appellant) (Respondent)

C.O.No. 20/VIZ/2020 (Arising out of I.T.A. No. 115/VIZ/2020)

(Asst. Year : 2009-10)

Smt. Gorrepati Pushpalath, Vs. ITO, Ward-1(1), L/H of Gorrepati Raghava Vijayawada.

Reddy, D.No. 31-23-6, Srinivasa Nilayam, Eluru Road, Maruthi Nagar, Vijayawada.

PAN No. AFHPG 6683 H (Applicant) (Respondent)

Assessee by : Shri C.Subrahmanyam, FCA Department by : Shri D.K. Sonawal, CIT-DR Date of hearing : 16/09/2021.

Date of pronouncement : 24/09/2021.

O R D E R

PER BENCH This appeal has been preferred by the Revenue Department and the cross objection by the Assessee against the order dated 03/12/2019 impugned herein passed by the ld. Commissioner of Income Tax (Appeals) [for short, “ld. Commissioner”], Vijayawada u/sec. 250(6) of the Income Tax Act, 1961 (hereinafter referred to as "Act") for the A.Y. 2009-10.

2. The Revenue Department challenged the impugned order, whereas the Assessee preferred the CO. In this case, ld. Commissioner has dealt with the facts and issues involved in the case extensively and therefore for the cost of repetition, we are not reproducing the same herein.

3. It is the case of the Revenue that notice u/sec. 148 of the Act was issued in the name of the deceased Assessee on dated 28/03/2016 which was returned by the postal authorities on dated 31/03/2016 by endorsing the remarks that the addressee has expired, therefore the same notice was subsequently served upon the Legal Representative (LR) of the Assessee. Further as there was no prior intimation about the death of the Assessee therefore no named notice was issued in the name of the LR of the Assessee. Further even the LR of the Assessee has never raised any objection before the AO regarding the validity of notice issued u/sec. 148 and therefore the impugned order is liable to set aside.

4. On the contrary the Assessee more or less supported the impugned order by filing cross objection.

5. Having heard the parties and perused the material available on record. The ld. Commissioner examined the issue to the effect that as to whether notice was issued in the name of LR of the deceased Assessee on or before 31/03/2016 i.e. before expiry of limitation period for issuing of notice u/sec. 148 of the Act. In the remand report, the AO submitted that no notice u/sec. 148 of the Act was issued in the name of LR as there was no prior intimation about the death of the Assessee. The AO also pointed out that LR of the Assessee never raised any objection about the validity of notice issued u/sec. 148. The ld. Commissioner while analysing the facts and circumstances of the case and referring and respectfully following the dictums laid down in the judgments of the Hon‟ble Supreme Court and High Courts held that notice issued u/sec. 148 of the Act is bad in law and consequently the addition of Rs.3,41,00,500/- under the head „income from other sources‟ made in the said assessment does not survive. The concluding part of the order of the ld. Commissioner is reproduced herein below:-

20. Having regard to the ratio laid down by the Hon’ble High Courts in the above mentioned cases, it is seen that it is a settled position of law that a notice such a notice are invalid in the eyes of the law. Respectfully following the said decisions, it is held that the notice issued u/s.148 in the present case in the name of the deceased person Sri Gorrepati Raghava Reddy is void and unenforceable in law. The non-issuance of notice u/s 148 in the name of the L/R of the assessee is a jurisdictional defect and the said jurisdictional defect, canno