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2018 (2) TMI 439

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..... 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. Therefore, in the light of the provisions of section 159 of the Act the proceedings are required to be initiated against a legal 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. Insofar as the provisions of sectio .....

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..... ri 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 impugned notice by submitting that it has been issued against a dead person and is, therefore, a nullity. It was pointed out that Shri Dhirajlal Dayaljibhai Thakkar had passed away on 19.08.2012 during the course of the assessment proceedings and the petitioner had been brought on record as his legal heir. The attention of the court was invited to the .....

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..... y 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 therefore, required to be quashed and set aside. 4.2 In support of his submissions, the learned advocate placed reliance upon a decision of this court in the case of Rasid Lala v. Incometax Officer, [2017] 77 taxmann.com 39 (Gujarat), wherein the court in similar set of facts had set aside the notice issued under section 148 of the Act by holdin .....

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..... ranting 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) proceedings, in which, the assessee had appeared; and (ii) any inquiry, in which, the assessee had cooperated. The court observed that in the case on hand, the assessee was dead and it was the assessee's son, who appeared and perhaps cooperated and therefore, the primary condition for the invocation of section 292BB of the Act is absent. It w .....

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..... 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 the original assessee viz. father of the petitioner passed away on 19.08.2012. The petitioner had informed the revenue authorities about the same in the year 2013. The authorities were very well aware that the petitioner is the heir and legal representative of the deceased assessee, despite which, more than four years after the deat .....

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..... tion 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 any proceeding or inquiry under the Act that the notice was (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. The proviso thereto says that nothing contained in the section shall apply where the assessee has raised such objection before the completion of such assessment .....

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