9911796707
TMI Blog2018 (2) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... section 148 of the Income Tax Act, 1961 (hereinafter referred to as the "Act"). 3. The petitioner is the son of late Shri Dhirajlal Dayaljibhai Thakkar, who was engaged in the business of general merchant, commission agent and commodity broker, besides finance under the name and style of M/s. D.M. Finance and had been allotted PAN AAXPT0185C. Shri Dhirajlal Thakkar passed away on 19.08.2012 despite which the impugned notice dated 30.03.2017 came to be issued to Shri Dhirajlal Dayaljibhai Thakkar, viz. a dead person. The impugned notice having been issued to a dead person, the petitioner being his heir and legal representative has filed the present petition. 4. Mr. Umaidsingh Bhati, learned advocate for the petitioner, assailed the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entatives" to point out that subsection (2) thereof provides that for the purpose of making an assessment, including an assessment, reassessment or recomputation 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 subsection (1) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative. It was submitted that therefore, in view of the provisions of section 159 of the Act, the respondent was required to issue the notice to the present petitioner and that the impugned notice issued in the name of the deceased father of the petitioner, is a nullity and, is there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 292BB of the Act, the notice cannot be treated as invalid as the legal heir of the assessee had participated in the appellate proceedings which are pending. Reiterating the grounds stated in the affidavitinreply filed on behalf of the respondent, the learned counsel submitted that the impugned notice does not suffer any legal infirmity warranting interference by this court. 6. In rejoinder, the learned advocate for the petitioner invited the attention of the court to the decision of the Madras High Court in the case of Commissioner of Income Tax v. M.Hemanathan, (2016) 285 CTR 0182 (Mad), wherein the court, in the context of section 292BB of the Act, has held that the same would apply only to two types of proceedings namely - (i) proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Rasid Lala (supra) wherein the reassessment proceedings had been initiated after the death of the assessee and the notice was issued against a dead person, held that the reassessment proceedings having been initiated against the dead person and that too after a long delay, even if section 159 of the Act is attracted, in that case also, the notice was required to be issued against and in the name of the heir of the deceased assessee. The court held that in the facts and circumstances of the case, section 159 of the Act would not be of any assistance to the revenue and, accordingly, set aside the impugned notice issued under section 148 of the Act. 9. The facts of the present case are similar to the facts of that case, inasmuch as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l representative and not against the deceased. The impugned notice under section 148 of the Act is therefore, not in consonance with the provisions of section 159 of the Act. 11. Insofar as the provisions of section 292B of the Act are concerned, the same would not be applicable in the facts of the present case. As regards section 292BB of the Act, the same provides that where an assessee appears in any proceeding and cooperates in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of the Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of the Act and such assessee shall be precluded from taking any objection in a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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