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TMI Blog2016 (4) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... to the legal representative and his authorised representative appeared and attended the hearings before the Commissioner of Income Tax during the proceedings under Section 263 of the Income Tax Act ?" 2. Heard Mr.M.Swaminathan, learned Standing Counsel for the appellant/Department. 3. The respondent is the legal heir (the son) of one late M.A.Margesan. For the assessment year 2009-10, the assessee filed a return of income on 3.6.2009 admitting a total income at Rs. 39,26,390/-. The return was processed under Section 143(1). It was selected for scrutiny and a notice under Section 143(2) was issued. The assessee participated in the proceedings, produced books of accounts and presented his case through an authorised representative. Thereafter, the Assessing Officer passed an order dated 23.6.2011, recomputing the income and ultimately arriving at the conclusion that an amount of Rs. 57,162/- was due as refund by the Department to the assessee. It must be noticed that this is a case of scrutiny assessment. 4. After two years of passing of the assessment order, the Commissioner of Income Tax issued a show cause notice under Section 263 on 6.9.2013. The show cause notice was addresse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition that the entire proceedings are a nullity. 12. But unfortunately, the said contention loses sight of the settled position that any proceeding initiated against a dead person is a nullity. The contention of the learned Standing Counsel for the Department loses sight of one important distinction between a case where the proceedings are initiated against a person, who is alive, but continued after his death and a case of proceedings initiated against a dead person himself. If the proceedings had been initiated against a person, who was alive, and they were continued after his death after putting his legal heirs on notice, those proceedings, under certain circumstances, may be saved. Such a situation is also contemplated in civil proceedings and a provision is made in the Civil Procedure Code itself under Order XXII Rule 4. Therefore, the cases where the very proceedings are initiated against a dead person stand apart from those proceedings where they are initiated against a live person, but continued after his death against the legal heirs. Hence, the first contention is rejected. 13. The second contention revolves around Section 292BB of the Act, which reads as follows : "29 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under Section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of Sub-Section (1),-- (a) any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased ; (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) all the provisions of this Act shall apply accordingly. (3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. (4) Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains undischarged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value of the asset so charged, disposed of, or parted with. (5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to the effect that the addressee was dead, clinches the fact. Despite being put on notice that the noticee was dead, the Department chose to pursue the very same notice. In such circumstances, Clause (b) of Sub-Section (2) of Section 159 cannot be taken advantage of by the Department. 22. Sub-Section (3) of Section 159 contains a deeming fiction. It states that the legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. Therefore, it is contended by Mr.M. Swaminathan, learned Standing Counsel for the Department that the respondent should be deemed to be an assessee and the service of notice on him should be deemed to be sufficient service. 23. In other words, the contention of the learned Standing Counsel is that the respondent herein automatically becomes a deemed assessee in terms of Sub-Section (3) and hence, his participation would pre-empt him from taking objection to the fact that the notice was addressed to a dead person. 24. Though at first blush, the contention appears to be well founded, we do not think that the Department can raise it in this case. As we have pointed out earlier, the original order of assessment was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had mentioned therein does not appear to be correct. A notice sent to a dead person is actually a nullity. There is only one exception in so far as civil proceedings are concerned, which could be traced to Order XXII Rule 4. Section 159 of the Income Tax Act also carves out an exception. Since service of notice on the legal heir of a dead person falls under the category of an exception to the general rule, the same cannot overtake the rule in the absence of a specific provision. 30. A Bench of this Court, to which, one of us (VRSJ) was a party, had pointed out in Gopalakrishnan G.S. Vs. State of Tamil Nadu [2006 (4) CTC 757], that a distinction has always to be maintained between judicial/ quasi judicial proceedings and other proceedings. In Savithriammal Vs. State of Tamil Nadu [2006 (3) MLJ 389], a Division Bench of this Court had categorically pointed out that the notification issued in the name of a dead person is a nullity. In Smt. Lila Vati Bai Vs. State of Bombay [AIR 1957 SC 521], the Constitution Bench of the Supreme Court had carved out an exception. 31. The case on hand will not fall under the said exception. Therefore, the very initiation of the proceedings against t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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