TMI Blog1991 (8) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... e due consideration to the fact that this notice was duly complied with and the return was filed by the legal heir. 2. The learned CIT(A), while deciding the appeal, has relied upon the ratio of decisions of different Hon'ble Courts which had no occasion to consider the provisions of section 292B because it was on the status when the relevant cases were decided. Therefore, placing reliance on such decisions was also not correct in law. 3. That the order of the CIT(A) being erroneous in law and on facts may be set aside and the order of the ITO may be restored." 2. Although the grounds have been split up into three, but the basic issue involved is as to whether the notice issued in the name of the deceased assessee was valid or not and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. 3. The learned Departmental Representative has very vehemently argued out that the issue of the notice is covered by the provisions of section 292B. Section 292B reads as under : " 292B. Return of income, etc. not to be invalid on certain grounds. No return of income, assessment, notice, summons or other proceeding furnished or made or issued or taken or purponed to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 821 (SC), CIT v. Thayaballi Mulla Jeevaji Kapasi [1967] 66 ITR 147 (SC), Y. Narayana Chetty v. ITO [1959] 35 ITR 388 (SC), CIT v. Ishwar Singh Sons [1981] 131 ITR 480 (All.), 120 ITR 76 (Mad.) (sic), 124 ITR 181 (All.) (sic), B.K. Gooyee v. CIT [1966] 62 ITR 109 (Cal.) and Smt. Indu Barua v. CWT [1980] 125 ITR 436 (Gauhati). The facts in the case of Madan Lal Agrawal were that for the assessment year 1946-47, the ITO, Aligarh, issued notice to the assessee under section 1.48 of the Income-tax Act, 1961 on the ground that he had reason to believe that the income of the assessee had escaped assessment. On the receipt of the notice, the assessee filed a return in the status of an individual. The ITO thereupon informed the assessee that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee has stressed that the very assessment on the basis of an invalid notice in the present case was void ab initio and invalid in the eyes of law and thus the order of the learned CIT in declaring the said assessment order as such was perfectly correct and justified. 9. We have heard the parties at length and we are of the opinion that the order passed by the learned CIT(A) was perfectly correct and justified. The Hon'ble Allahabad High Court in the case of Madanlal Agrawal and in the case of Smt. Phoolmati Devi had very clearly held that the notice should be properly and legally issued and if the very issue of the notice is not in accordance with law or the notice itself is bad in the eyes of law, then no assessment framed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TO in pursuance of an invalid notice will be illegal and void. 11. The Hon'ble Madras High Court in the case of Jayanthi Talkies Distributors v. CIT [1979] 120 ITR 576 has also held the same view and held that the ITO will have no jurisdiction to make an assessment under section 147 unless the notice under section 148 is validly issued to and served on the assessee. 12. With these decisions in the background, if we analyse the facts of the present case, we have no option but to hold that the notice issued in this case was invalid. Admittedly, the notice was issued in the name of Ganga Prasad Jaiswal on 28-3-1985 and Shri Ganga Ram Jaiswal had admittedly died on 20-3-1985. Secondly, the notice was served on Kesho Ram Munib, who had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITO to re-frame the assessment under section 147 of the Income-tax Act, 1961. In absence of the proper and valid notice and in absence of proper service, the entire proceedings for reassessment and the assessment order framed thereafter, in our opinion, becomes void and invalid in the eyes of law. The various decisions of the Hon'ble Supreme Court and of Hon'ble Allahabad High Court, cited above and relied upon by the learned counsel for the assessee, in our opinion, apply with full force to the present case. Hence, taking all those decisions into consideration, we are of the opinion that the order passed by the learned CIT(A) was perfectly correct and does not call for any interference. The issues are decided accordingly. 13. As a resul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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