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2022 (5) TMI 744 - HC - Income TaxReopening of assessment u/s 147 - notice against deceased - deceased - Jagannath Rampal Kabra had claimed bogus accommodation entry and there was escapement of income - whether the reopening of assessment is void-ab-initio as the Notice under Section 148 of the Act has been issued to dead person? - HELD THAT:- The aforesaid question of law is no more res-integra. The issue came to be considered by this Court in the case of Chandreshbhai Jayantibhai Patel vs. Income Tax Officer [2019 (1) TMI 353 - GUJARAT HIGH COURT] as legal representative not having waived the requirement of notice under section 148 of the Act and not having submitted to the jurisdiction of the Assessing Officer pursuant to the impugned notice, the provisions of section 292B of the Act would not be attracted and hence, the notice under section 148 of the Act has to be treated as invalid There is no scope/occasion for filing a voluntary return for escapement of income and the only provision under which return can be filed is on issue of a notice under Section 148. Indisputably, the assessment proceedings for escaped income were initiated by issue of notice under Section 148 of the Act and therefore the AO was vested with jurisdiction over the case. However, issuing notice upon the deceased assessee is as good as no valid notice in eye of law resulting in irregularity, which is not curable. It would be a nullity, as it hits upon the inherent jurisdiction of AO. On a bare reading of the provision, it is evident that issuance of valid notice confers power upon the AO to assume jurisdiction for initiation of proceedings for assessment of escapement of income. It is a cardinal proposition in law that not issuing notice at all or issuing that beyond statutory period or issue of an invalid notice under Section 148 does affect the jurisdiction of AO and would make the assessment/reassessment "null and void" because the notice under this section is not a mere procedural requirement but a condition precedent to assume jurisdiction and to make a valid assessment/reassessment. Absence of such a notice would make the assessment invalid and without jurisdiction in view of the decisions of Y Narayana Chetty[1958 (10) TMI 10 - SUPREME COURT], THAYABALLI MULLA JEEVAJI KAPASI (DECD.) (BY HIS LEGAL REPRESENTATIVES) [1967 (3) TMI 1 - SUPREME COURT],KURBAN HUSSAIN IBRAHIMJI MITHIBORWALA [1971 (9) TMI 9 - SUPREME COURT], ELECTRO STEEL CASTINGS LTD. [2003 (7) TMI 58 - CALCUTTA HIGH COURT], MADAN LAL AGARWAL [1982 (9) TMI 26 - ALLAHABAD HIGH COURT], NYALCHAND MALUKCHAND DAGLI [1965 (9) TMI 57 - GUJARAT HIGH COURT] Thus notice being issued upon deceased – assessee is void ab initio and the consequential proceedings and the orders passed thereon are any without jurisdiction and are therefore, hereby quashed and set aside. - Decided in favour of assessee.
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