TMI Blog2003 (8) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... of his legal heirs who always represented the deceased in subsequent asstt. years." 5. The facts related to the issue involved in the ground of appeal are that originally return for assessment year 1992-93 was filed on 21-12-1992 by the assessee and the income of Rs. 65,000 was declared. The return was processed under section 143(1)(a) of I.T. Act. Thereafter the assessee late Shri Atiquer Rehman died on 9-2-1997. After his death, a notice under section 148 was issued on 26-3-1999. This notice was addressed to Shri Shahid Atiq legal heir of late Shri Atiquer Rehman. This notice reads as under:- "Shri Shahid Atiq L/H of Late Shri S.H. Atiquer Rehman, 4791, Chandni Chowk, Delhi-6" 6. This notice was served upon the assessee on 27-3-1997. Thereafter notices under sections 143(2) and 142(1) was issued in response thereof. Shri R. Balasubramanian, CA filed necessary explanations and case was discussed by the Assessing Officer. The Assessing Officer considered the relevant agreement and the case law in detail and thereafter completed the assessment by observing as under:- "The assessee has ultimately in fact accepted that the arrangement made was not legally permissible therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 has not been validly issued inasmuch as it has not been issued to all the legal heirs which in this case consists of late assessee's sons, his wife and a daughter and, therefore, the Assessing Officer did not assume proper jurisdiction to pass the assessment order. Also it is visually clear that the assessment order has been passed in the name of a dead person" 9. The learned DR submitted before me that the learned first appellate authority has not properly considered the legal issue. According to her since notice under section 148 was issued to one of the legal heirs who participated in the proceedings, it was not open for him to raise objection, subsequently regarding the legality of notice issued under section 148 and assessment made against him as legal heir of the deceased assessee. She also placed reliance on the decision of Supreme Court in the case of CIT v. Jai Prakash Singh [1996] 219 ITR 737. After placing the reliance on the said decision, she submitted that the assessment cannot be treated to be null and void and at the most there was only an irregularity which was curable and stood cured by the participation of the legal heir of the assessee. 10. Learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the additions that you propose to make. While doing so, I am also aware of the fact that on the assessment so made, substantial demands are going to arise, which apart from regular tax would also include interest under the appropriate sections. I am also aware of the fact that after the creation of these demands, there would be significant pressure on me to discharge these liabilities. I have always been a firm believer in the role of law. I also appreciate that till such time the matter gets finally involved interest would keep piling up on such demands. I therefore feel that while I should not lose my right of appeal nevertheless. I would like to discharge the regular tax liability (if any) that may be created in pursuance to the assessment order under section 143(3), in six months instalments. I would also propose to move a petition under section 273 for the waiver of interest and penalty. However, before paying the demands that are likely to arise, may I request you to adjust a part of the demand against the refund determinable in the case of the assessee (since deceased) for the assessment year 1998-99 and 1999-2000. These refunds have arisen because of the tax deducted at so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment years 1965-66, 1966-67 and 1967-68 and that it was at best an irregularity for which the Appellate Assistant Commissioner was justified in setting aside the assessments and it was not a case fit for cancellation of the assessments." 16. The Hon'ble Supreme Court also made reference to the decision of Federal Court in the case of Chatturam v. CIT [1947] 15 ITR 302. In that case the Federal Court made the following observations:-- "The income-tax assessment proceedings commence with the issue of a notice. The issue or receipt of a notice is not however, the foundation of the jurisdiction of the Income-tax Officer to make the assessment or of the liability of the assessee to pay the tax. It may be urged that the issue and service of a notice under section 22(1) or (2) may affect the liability under the penal clauses which provide for failure to act as required by the notice. The jurisdiction to assess and the liability to pay the tax, however, are not conditional on the validity of the notice. Suppose a person, even before a notice is published in the papers under section 22(1), or before he receives a notice under section 22(2) of the I.T. Act, gets a form of return fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceived by the assessee and was acted upon by him before the ITO without raising any objection. Such a procedural irregularity in the service of the notice under section 148 could not invalidate the assessment. The service of the notice on the assessee was valid." 21. In this case, the Hon'ble High Court made reference to the decision in the case of CIT v. Bhanji Kanji's Shop [1968] 68 ITR 416 (Guj.) wherein it was held that even if there is a procedural irregularity in the notice of reassessment, if the assessee admits that he had received the notice or from the facts it can be ascertained that the notice was served then the contention on behalf of such ail assessee that the notice was not properly served is to be rejected. The case of Gujarat High Court was also followed by Patna High Court in case Mahendra Kumar Agrawalla v. ITO [1976] 103 ITR 688. 22. In view of the above decisions, the legal position is very clear. Since notice under section 148 was served upon one of the legal representatives who did not raise the plea of illegal assumption of jurisdiction before the ITO and on the other hand, participated in the assessment proceedings, such plea cannot be raised at the a ..... 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