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TMI Blog2003 (8) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... through one 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment is invalid: 8. The learned CIT(A) admitted the additional grounds and thereafter obtained the comments of the Assessing Officer as well as the reply of the assessee against such comments. He also discussed the case law and the points as referred to by the party before him and accepted the plea of the assessee by observing as under:- "On considering the above position I am of a view that the notice under section 148 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 he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order, the Assessing Officer has also made reference to the letter of assessee dated 26-3-1999 filed on 30-3-1999 in the assessment proceedings for assessment year 1994-95, the contents of that letter as reproduced by the Assessing Officer are as under:- "After having due consideration to the professional advice tendered to me by my counsel, I feel that I should not be denied the right of appeal in respect of 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), i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e absence of notice to the legal representatives, the assessment was a nullity. On appeal, the Hon'ble Supreme Court observed as under: "Held, allowing the appeal, that the Tribunal was correct in holding that non-service of notice under section 143(2) of the Income-tax Act, 1961, to nine out of the ten legal representatives of the deceased S did not invalidate the assessment orders of the ITO relating to the assessment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ITO that he received the notice. The assessee participated throughout in the assessment proceedings before the ITO without raising any objection. Even if there was any procedural irregularity in the service of the notice in that it was not served by the serving officer on the assessee personally or on an agent empowered to receive service, that irregularity lost all significance once the notice was received 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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