TMI Blog2010 (12) TMI 623X X X X Extracts X X X X X X X X Extracts X X X X ..... gee for the Respondent ORDER P.K. Bansal, Accountant Member (As a Third Member):- 1. Following questions on difference of opinion between the learned Judicial Member and the learned Accountant Member were referred to me by Hon'ble President u/s. 254(4) of the Income-tax Act: (i) "Whether the Ld. CIT(Appeals) has erred in law and on facts and the circumstances of the case in declaring the assessment order as void and a nullity or not? (ii) Whether the Ld. CIT (Appeals) has erred in law and on facts and the circumstances of the case in concluding that the notice u/s. 148 has not been served on proper person?" 2. Although both the Members have mentioned the brief facts in their respective orders relating to these appeals by the Revenue and all these questions arise out of the various grounds taken in the appeals filed by the Revenue, yet for disposing of the questions referred to me, it is necessary for me to refer to the brief facts of the case even at the cost of repetition. 3. The facts of the case are that Shri Sikandar Lal Jain filed his return of income on 29.10.1998 for A.Y. 1998-99. Thereafter, he died on 17.11.2002. Subsequently, the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings initiated u/s. 147 of the Act in the case of Smt. Uma Rani Jain, the legal heir, on the basis of invalid notice, are void as the notice issued u/s. 148 of the Act was in the name of dead person. While doing so, the ld. CIT(A) also sought remand report from the Assessing Officer, who in his report dated 04.09.2006 admitted that the notice was actually issued in the name of Shri Sikandar Lal Jain, the dead person. The assessments in the cases of other two legal heirs were also quashed by the ld. CIT(A) holding that the same amount cannot be taxed twice, i.e., once in the hands of Smt. Uma Rani Jain, the widow and second in the hands of other two legal heirs. 4. Before answering the questions referred to me, I have to adjudicate upon the point whether in the background of aforesaid facts, the notice dated 21.03.2005 issued within the period of limitation but in the name of dead person, Shri Sikandar Lal Jain, and its photocopies served on the legal heirs of the deceased alongwith office letters dated 23.12.2005 of the AO addressed to the legal heirs beyond the period of limitation, should be deemed to be a valid service of notice for acquiring jurisdiction u/s. 147 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon'ble Allahabad High Court has held that the notice was not valid. Since, there is only MP High Court and Mumbai High Court decisions directly on this point, the tribunal is bound to follow those decisions. Thus it was contended that order of the accountant member is in accordance with law and I am bound to agree with the order of the accountant member. 6. The learned AR, on the other hand, contended that the factum of service of notice dated 21.03.2005 on the legal heir Shri Neeraj Jain on 30.03.2005 is not correct. In fact, notice was not served on any of the legal heirs within the period of limitation, i.e., upto 31.03.2005. Even after 31.03.2005, it is only the photocopies of the notice dated 21.03.2005 were served on the legal heirs. The assessee has expired on 17.11.2002. For this attention was drawn at page 128 of the paper book, which is the return of the deceased for A.Y. 2003-04. The proceedings u/s. 147 were initiated against the name of the assessee, a dead person on 21.03.2005. The same very Assessing Officer has issued refund for the assessment year 2003-04 on 24.08.2004 in the name of the legal heir. The notice was received by the daughter-in-law of the decease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case. The notice was in the name of Maharaja of Patiala and did not indicate whether it was issued in the name of present Maharaja or for Maharaja who had already expired. The present Maharaja, in fact, was the legal heir of the deceased Maharaja and who also understood that the notice was served in respect of the income of the late Maharaja. Therefore, he did not raise any objection till the matter reached to the Tribunal. In the case of the assessee, the legal heir has not at all participated in the proceedings, but challenged the noticed issued in the name of dead person even before the first appellate authority. Referring to the decision in the case of Jose T. Mooken v. CIT, 117 ITR 894 (Ker.), it was pointed out that the question involved in that decision did not relate to the issue of the notice on the dead person by referring to para 3 of the decision. The facts involved in that case are different. Referring to the decision in the case of Smt. Kaushalya Bai v. CIT (supra), it was pointed out that this decision relates to the M.P. High Court. In that decision, no doubt, the notice was issued in the name of dead person, but the widow of the deceased participated in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary for his assessment, for that assessment year: Provided further that the Assessing Officer may assess or reassess such income, other than the income involving matters which are the subject matters of any appeal, reference or revision, which is chargeable to tax and has escaped assessment. Explanation 1:- Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. Explanation 2:- For the purposes of this section, the following shall also be deemed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequently a notice has been served under sub-section (2) of section 143 after the expiry of twelve months specified in the proviso to sub-section (2) of section 143, as it stood immediately before the amendment of said sub-section by the Finance Act, 2002 (20 of 2002) but before the expiry of the time-limit for making the assessment, re-assessment or recomputation as specified in sub section (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice: Provided further that in a case- (a) where a return has been furnished during the period commencing on the 1st day of October, 1991 and ending on the 30th day of September, 2005, in response to a notice served under this section, and (b) subsequently a notice has been served under clause (ii) of sub-section (2) of section 143 after the expiry of twelve months specified in the proviso to clause (ii) of sub-section (2) of section 143, but before the expiry of the time-limit for making the assessment, reassessment or recomputation as specified in sub-section (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice. Explanation:- For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued prior to 31.03.2005, service of the notice subsequent to 31.03.2005 will not invalidate the proceedings. Similarly, he was of the view that the notice cannot be held to be invalid merely because it has been issued in the name of dead person. Therefore, I am of the view that in question No. 1 there are two issues involved - (i) whether the service of the notice within the limitation period is essential and (ii) whether the notice issued in the name of the dead person is a valid notice. 9. So far as the first issue is concerned, both the parties agreed that the notice u/s. 148 was issued in this case on 21.03.2005 after recording the reasons. A copy of the reasons is placed in the paper book. The learned AR before me vehemently contended that the notice since was not served on all the legal heirs prior to 31.03.2005, therefore, the proceedings initiated u/s. 147 with the of said notice u/s. 148 are not valid. Sub-section (2) of section 148 requires that the Assessing Officer must first record his reasons before he formally issues the notice under this section. If the word "issuing" in this section is to be read as "serving", in my opinion, it would lead to an absurdity. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Once, it is so, then plainly enough, the ordinary meaning of the word "issued" must be given to that word in section 149 and it is indeed essential to read it only as "issued" and not as "served". The purpose of bringing the provisions of sections 147 to 151, inter alia, against the assessee to bring the assessee who avoided their duty to pay tax or any case against the income which has escaped assessment earlier, within the tax net. Recording of reasons and issuing of notice within the time prescribed is in the hands of the department. The service of the notice is not within the hands of the department. If the service of notice within the time-limit is to be read in section 149, it would tantamount to put a premium on the tax evasion by the assessees whose case is to be reopened for the escaped assessment. The legislature, therefore, with its wisdom has made the provisions that the Assessing Officer must apply his mind and direct the issue of the notice within the time fixed from the last date of the relevant assessment order. The assessee who will be abating the tax will always try to avoid the service of the notice by hook or crook so that he can take plea subsequently that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted. The Income-tax Officer shall now proceed to complete the assessment after complying with the requirements of law." 11. From the aforesaid decision, it is apparent that once the notice is issued within the prescribed limitation period, the proceedings initiated are valid and assessment cannot be made until a notice is actually served. It is not the case of the learned AR that the notice was not actually served to all legal heir of the deceased. In fact, the Assessing Officer has clearly observed that the notice was served to one of the legal heirs, i.e., the son of the assessee, Shri Neeraj Jain on 30.03.2005. This finding has not been challenged by the assessee before the CIT(A). Now at this stage, the learned AR cannot be permitted to take the plea that the finding given by the Assessing Officer that the notice was served on the son of the assessee Shri Neeraj Jain on 30.03.2005 is incorrect. Even otherwise also, the copy of the notice was duly served on 23.12.2005 on all the legal heirs of the deceased. I do agree with the learned AR that the notice must be served on all the legal heirs and the assessment framed without the service of notice on all the legal heirs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Act; From the reading of this section, it is apparent that 'assessee' means a person by whom any tax or any sum of money is payable under this Act and also includes even every person who is deemed to be an assessee under any provision of the Income-tax Act. The person is defined u/s. 2 sub-section (31) which includes an individual. Individual means a single human being distinct from a group of human beings. Now, the question arises whether the person who has already expired, can be regarded to be a human being so as to fall within the definition of 'individual'. Notice in this case is not issued in the name of the legal representatives of the assessee but issued in the name of an individual who has already expired on 17.11.2002. Therefore, it cannot be said that there was an individual in existence in the name of Shri Sikandar Lal Jain in whose name notice is issued as on the date when the proceedings u/s 147 was initiated or the notice u/s 148 was issued. Under the 1922 Act, the word "individual" did not necessarily refer to a natural human being but also included a juristic person like a Hindu idol, but under the 1961 Act definition, there is a separate appropriate sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man being as on the date when the notice was issued in this case. Only legal heir can be regarded to be the indivisual. In view of the clear mandates of the provisions of section 2 (7) and sub-sections (1), (2) and (3) of section 159, I am of the opinion that the notice issued in the name of a dead person is not a valid notice. In the absence of issuance of a valid notice, the proceedings initiated u/s. 147 cannot be said to be valid one. Since both the parties have argued this issue extensively relying on a number of case laws clamed to be in their favour, I am bound to discuss all these case laws before giving any final verdict and accordingly these cases are discussed in the following paragraphs as under: (A). The decisions relied on by the assessee: (i). Shaikh Abdul Kadar v. ITO, 34 ITR 451 (MP): 13. In this case it was held: "Under section 24B(2) of the IT Act, a notice under section 34 in respect of the income of a deceased assessee has to be issued to his executor, administrator or legal representatives. In the present case the notice and all communications were addressed to S who, admittedly, was dead at that time, and had been so dead for a long time. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even Smt. Vandana Jain, the daughter-in-law of the deceased, when notice dated 21.03.2005 was served on her, mentioned in the copy of the notice acknowledging the notice itself that the assessee has already expired. The Assessing Officer remained silent and did not take any action so that fresh notice could be issued in the name of the legal heir/s within the permissible time. (ii) Late Mrs. Jerbanoo N. Wadia v. Asstt. CIT, (39) TTJ (Bom) 138. 15. In this case Mumbai Bench of this Tribunal has held as under: "It is not disputed by the Department that notice under s. 148, dt.14th March, 1988 was issued to Smt. J.N.W., and received on her behalf on 19th March, 1988. At this point of time, i.e., on 14th March, 1988, the ITO was expected to be aware of the fact that Smt. J.N. W. was no more alive. The intimation of her death was given to the ITO as early as on 30th Oct., 1987 and the ITO had taken cognizance of the fact that the assessee was dead, as can be seen from the fact, that the ITO had described the assessee as Smt. J.N.W. (deceased). Thus, although the ITO was aware of the death of the assessee as early as in Nov.,1987,he chose to issue the notice under s. 148 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the fact that in the present case, there was a compliance of this notice by the legal heir does not cure the defect.-Shaikh Abdul Kadar v. ITO [1958] 34 ITR 451 (MP), E. Alfred v. First Addl. ITO [1957] 32 ITR 402 (Mad), P.N. Sashi Kumar v. CIT (1988) 69 CTR (Ker) 78: [1988] 170 ITR 80 ker), CIT v. Surendra Kumar Bhadani [1986] 55 CTR (Pat.) 80 [1987] 164 ITR 323 (Pat.) and Y. Narayana Chetty and ANR v. CIT [1959] 35 ITR 388 (SC) applied; Maharajah of Patiala v. CIT (1943) 11 ITR 202 (Bom.) distinguished." 16. This decision, in my opinion, is applicable to the facts of the case before me. In this case, the Tribunal not only held that the notice issued in the name of the deceased-asses see is invalid, but also took the view that even if the legal heirs have participated in the proceedings initiated u/s. 147 by issue of notice in the name of the dead person, the assessment so framed cannot be a valid assessment. Section 292B cannot cure the defect. Issuance of a valid notice is the foundation for reassessment proceedings. In the case before me also, the undisputed fact is that the notice had been issued to a dead person and copy of the same notice was served on the legal heirs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of notice, is invalid. In the case before me also, the notice is addressed to Shri Sikandar Lal Jain, who has already died prior to the date of issue of the notice. (iv) CIT v. Shital Prasad Kharag Prasad 280 ITR 541 (All.): 19. In this case, the Hon'ble Allahabad High Court has held as under: "The Assessing Authority gets jurisdiction to reopen a concluded assessment only after serving a valid notice on the assessee. A notice contemplated under section 148 of the Income-tax Act, 1961, is a jurisdictional notice and is not curable under section 292B of the Act, if it was not served in accordance with the provisions of the Act." 20. In this case, the jurisdictional High Court has laid down the proposition of law that the notice contemplated u/s. 148 is a jurisdictional notice and any defect therein cannot be cured u/s. 292B of the Income-tax Act, if it was not served in accordance with the provisions of the Act. The facts of this case are different to the facts of the case before me. In this case, there was a joint Hindu family consisting of two brothers and sons of the pre-deceased brother. One of the brothers died leaving no male descendant. The business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tural justice as well as mandatory provisions contained in section 148. Although in this case, I noted that the court has also noted that the notice u/s. 148 was not even served on the legal representative, the Hon'ble High Court quashed all the proceedings, notices, order, pursuant to the notice u/s. 148. In my opinion, this decision, even though differs on the facts as in the case before me, the Assessing Officer served the copies of the notice to all the legal heirs but the fact remains that the notice was addressed to a deceased who cannot be a person u/s 2(31) in the status of an individual. Therefore, to that extent, this decision supports the case of the assessee. (vi) Smt. Kesar Devi v. CIT, 321 ITR 344 (Raj.): 23. In this case, the Hon'ble Rajasthan High Court has held as under: Head Notes - Assessment- Validity- Notice issued to dead person- A case cannot be decided in the absence of the affected party- Therefore, notice to the dead person and consequent assessment were illegal. 24. I noted that the facts in this case are little different, as in this case, the assessment order as well as notice of demand were also made in the name of the dead person. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot applicable to the facts of the case of assessee. The service of the notice is not under dispute. The question before me is - whether the notice addressed to a dead person entrusts valid jurisdiction on the Assessing Authority u/s. 147/148 of the Income-tax Act or not. In the case of the assessee this is an admitted fact that the notices to all the legal heirs were duly served by sending the photocopies of the notice dated 21.03.2005 through Assessing Officer's office letter dated 23.12.2005. This fact has not been disputed by the assessee. Even the notice on Shri Neeraj Kumar Jain, son of the deceased was served on him on 30.03.2005 itself. (viii) CIT v. Amarchand N. Shroff, 48 ITR 59 (SC): 27. In this case, the Hon'ble Supreme Court has laid down following proposition of law: "Section 24B does not authorize levy of tax on receipts by the legal representative of a deceased person in the years of assessment succeeding the year of account being the previous year in which such person died." 28. This case, in my opinion is not applicable to the facts of the case before me. This case relates to the interpretation of section 24B under 1922 Act. In this case, Hon'ble Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee. There is no infirmity in the findings of the CIT(A) - CIT v. Jai Prakash Singh [1996] 132 CTR (SC) 262: (1996) 219 ITR 737 (SC) distinguished." 32. This case, even though has been vehemently relied on by the learned AR, in my opinion, is not relevant to the facts in the case before me. In this case, the notice u/s. 148 was not served on all the legal heirs of the deceased assessee. Therefore, under these facts, Jodhpur Bench of this Tribunal has categorically held that the re-assessment proceedings were null and void, as the notice u/s. 148 was not served on all the legal heirs of the deceased assessee. In the case before me, this is an admitted fact that the copy of the notice issued to dead person were served on all the legal heirs. Therefore, this decision, in my opinion, is not applicable to the case before me. (xi) ITO v. Ganga Prasad Jaiswal 39 ITD (All.) 444: 33. In this case, Allahabad Bench of this Tribunal has held as under: "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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Ganga Ram Jaiswal had admittedly died on 20th March, 1985. Secondly, the notice was served on Kesho Ram Munim, who had no authority to receive the notice. In this way, the very issue of notice in the name of a dead person was an invalid notice and, secondly, the very service of the said notice on Munim was invalid. Thirdly, the Munim had written on the very notice itself that Shri Ganga Ram had expired 8 days back and his legal heir was his widow Smt. Tara Devi. The notice was served by the Inspector and thus the knowledge of the said information now cannot be denied by the Department as it had been received and communicated to the Inspector who had gone to effect the service on 29th March, 1985 itself, while there was still three days left to amend the mistake and issue a fresh notice on the legal heir within the limitation prescribed under the law. Despite this information, no action was taken by the Department and now the Revenue tries to take shelter under section 292B. Section 292B does not protect the assessments which are void ab initio. It is only an enabling provision just to condone the mistake, defect or omission in the return of income, assessment or notice or summo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued or if the notice issued is invalid or is not served in accordance with law, the assessment would be void. It was further held in that case that it is a jurisdictional issue and unless such a notice is issued, the Income-tax Officer does not get jurisdiction to make an assessment on a particular assessee. In this case the notice was issued to AS, an individual and the return was filed by his brother, SS (Karta of his HUF). It was held in this case that the two were absolutely distinct entities in law, and a valid assessment could not be made on the assessee-HUF as no notice had been issued to it under section 148 of the Income-tax Act. (xii) CIT v. Rakesh Kumar, Mukesh Kumar L/H of Late Mohar Singh, 313 ITR 305(PandH): 35. In this case, Punjab and Haryana High Court has held as under: Head notes: "Search and seizure - Block assessment - Validity vis-a-vis search warrant in the name of a dead person - Search warrant being issued in the name of a dead person and Panchnama also prepared in the name of dead person, the search and the authorization were invalid and void ab initio and therefore block assessment under section 158BC r/w s. 144 in pursuance thereof is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income from the firm received by the wife was includible in the total income of the assessee." 40. In this case I noted that the notice was in the name of a dead person, but legal heir participated in the proceedings for re-assessment. On these facts, the Hon'ble High Court took the view that the issue of the notice on a dead person u/s. 292B of the Act should be treated to be a procedural irregularity because the widow of the deceased participated in the proceedings. Due to her participation, the defect, if any, stands automatically cured. The question whether a dead person can be an assessee was not before the High Court and Hon'ble High Court has not decided that question. This decision is applicable to the extent that the notice is issued in the name of dead person. But in the case before me, the legal representative has not participated in the re-assessment proceedings, rather the assessment order was passed u/s. 144 of the Income-tax Act. I also noted that although this decision was given by the Division Bench of Madhya Pradesh High Court, but Hon'ble High Court did not refer to the decision of the M.P. High Court in the case of Shaikh Abdul Kadar v. ITO, 34 ITR 451 (MP. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 22, and, therefore, the provisions of section 24B(2) apply, and the Income-tax Officer was entitled to serve on the executor, administrator or other legal representative of the deceased Maharaja a notice under section 22(2) or under section 34 as the case might be, and then proceed to assess the total income of the deceased Maharaja as if such executor, administrator or other legal representative were the assessee. As observed by the president of the Tribunal in his judgment, the Income-tax officer made no attempt to observe the provisions of that sub-section. He served the notice on the present Maharaja, without showing in what capacity. But the Tribunal have found, as a fact, that the present Maharaja is the legal representative of the deceased Maharaja, and although it would obviously have been better so to describe him in the notice, I am not prepared to say that the notice was bad, if it was served on the legal representative, merely because it omitted to state that it was served in that capacity. It should have been stated that it was served on the legal representative of the late Maharaja, and that the return required was of the late Maharaja's income. It was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. In the case before me, the legal heirs did not participate in the proceedings before the Revenue Authorities at all and the assessment has been completed u/s. 144. 43. Now, I would like to deal with the contention of the Ld. D.R. whether the said judgment of the Bombay High Court is binding on me on this issue or not. I find that the Bombay High Court in the case of Thana Electricity Supply Ltd. 206 ITR 727 has laid down categorically with regard to the precedent that the decision of one High Court is neither binding precedent for another High Court nor for Courts or Tribunals outside its territorial jurisdiction. In the said judgment, Hon'ble High Court after discussing the various judgments of Hon'ble Supreme Court hold the following proposition of law on the binding force of a judgment at page 738 of the judgment: "(a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bit thereof. The fact that there is only one decision of any one High Court on a particular point or that a number of different High Courts have taken identical views in that regard is not at all relevant for that purpose. Whatever may be the conclusion, the decisions cannot have the force of binding precedent on other High Courts or on any subordinate courts or Tribunals within their jurisdiction. That status is reserved only for the decisions of the Supreme Court which are binding on all courts in the country by virtue of article 141 of the Constitution." 44. Thus, the Mumbai High Court in the aforesaid judgment has clearly laid down that the decision of the non-jurisdictional High Court is not binding. In order to understand and appreciate the binding force of a decision, it is always necessary to see what were the facts of the case and what was the point which had to be decided. A precedent is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is called ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , but this decision, in my opinion, will not assist the Revenue, as I have already pointed out that the Madhya Pradesh High Court has taken a different view in its earlier decision in the case of Shaikh Abdul Kadar v. ITO, 34 ITR 451 (MP.). This judgment, as relied by the learned DR, even though directly relate to the issue of the notice on the dead person, but cannot be binding precedent on the Tribunal as this judgment has been rendered without noticing the previous judgment and is considered to have been rendered per incurium. The Hon'ble Madhya Pradesh High Court in the case of Jabalpur Bus Operators Association v. State of MP, AIR 2003 MP 81, decided the question, which view is to be followed by the High Court as a binding precedent when there are conflicting views between the decisions rendered by the co-equal benches of the Apex Court. The court noted the approach of various high Courts on the issue and lack of the decision on the issue by the Supreme Court. The two trends that were noticed by the Hon'ble High Court were (a) following the latter case and (b) following the case which in the judgment of the High Court was correct. Ultimately the court held that in case of conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered to have been rendered 'per incuriam'. It is even said that such a judgment need not be given effect to by a lower court. In the instant case, the attention of the Bombay High Court in Snowcem India Ltd.'s case (supra) was not drawn to sub-section (4) of section 115JA, as had been pointed out by the Accountant Member in his dissent. The High Court, therefore, had no occasion to examine the question whether the decisions of the Karnataka High Court and the Supreme Court in Kwality Biscuits (supra), rendered in the context of section 115J which did not have a sub-section similar to sub-section (4) of section 115JA, would still be applicable as binding precedent in a case which arose under section 115JA." 45. In view of my aforesaid discussion and the fact that the notice issued in the name of the dead person is invalid, I decide the questions referred to me as under: (i) The assessment order passed, in view of the issue of notice on the dead person, is void and the CIT(Appeals), in my opinion, was correct in law and in facts holding the assessment order as void. (ii) The CIT(A), in my opinion, was not correct in law in concluding that the notice u/s. 148 has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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