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TMI Blog2018 (6) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... in any manner conducting any proceedings for re-assessment as set out in the said notice dated 30.3.2017 or passing any consequential orders thereto under Section 147 of the Act for the assessment year 2010-11. 3. The petitioner is the wife of the said Mr.S.Veerappan, who died on 26.1.2010 and this fact is not disputed by the respondent. The petitioner claims to be a home maker and is living with the support of her two daughters along with mother in law. The petitioner received a notice dated 30.3.2017 addressed to her late husband the said Mr.S.Veerappan. In the said notice, it was stated that certain income of the said Mr.S.Veerappan escaped assessment for the assessment year 2010-11 and that the respondent proposed to re-assess the inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the notice in the name of a dead person goes to the root of the exercise of jurisdiction under Section 147 of the Act and that the notice under Section 148 of the Act is, therefore, a nullity. 6. Relying upon the decision of the Hon'ble Supreme Court in the case of CIT Vs. Amarchand N.Shroff [reported in AIR 1963 SC 1448], it is submitted that no income tax assessment can be made in the name of a dead person and that the observations made by the Hon'ble Supreme Court will equally apply to the notices issued under Section 148 of the Act. It is further submitted that the petitioner, being the wife of the deceased Mr.S.Veerappan, to whom, the notice under Section 148 of the Act was issued, cannot be made liable to participate in the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the dead person has not been cancelled. Therefore, the Department was fully justified in issuing the notice in the name of the deceased assessee and that the notice, having been issued before the end of the period of limitation, i.e. 30.3.2017, is valid in the eye of law. 11. It is further submitted by the learned Senior Panel Counsel that the Department, after having knowledge of the death of the assessee, as intimated by the petitioner, issued notice to the petitioner and directed her to produce the documents and to cooperate in the reopening proceedings. It is also submitted that there is no defect in the issuance of the notice dated 30.3.2017 and in any event, even assuming without conceding that the notice is defective, the same is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue being as to whether the petitioner, being the wife of the said Mr.S.Veerappan, can be compelled to participate in the proceedings and respond to the impugned notice. The fact that the said Mr.S.Veerappan died on 26.1.2010 is not in dispute. If this fact is not disputed, then the notice issued in the name of the dead person is unenforceable in the eye of law. 15. The Department seeks to justify their stand by contending that they were not intimated about the death of the assessee, that the legal heirs did not take any steps to cancel the PAN registration in the name of the assessee and that therefore, the Department was justified in directing the petitioner to cooperate in the proceedings pursuant to the impugned notice. 16. The set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question would be as to whether Section 159 of the Act would get attracted. The answer to this question would be in the negative, as the proceedings under Section 159 of the Act can be invoked only if the proceedings have already been initiated when the assessee was alive and was permitted for the proceedings to be continued as against the legal heirs. The factual position in the instant case being otherwise, the provisions of Section 159 of the Act have no application. 19. The Revenue seeks to bring their case under Section 292 of the Act to state that the defect is a curable defect and on that ground, the impugned notice cannot be declared as invalid. 20. The language employed in Section 292 of the Act is categorical and clear. The n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have proceeded in the matter even by issuing notice to the legal representatives of the assessee. The decision in Vipin Walia fully supports the case of the petitioner herein. 22. The decision in the case of Vipin Walia was followed in the decision of the High Court of Gujarat in the case of Rasid Lala, in which, the re-assessment proceedings were initiated against the dead person, that too, after a long delay. The Court pointed out that even if the provisions of Section 159 of the Act are attracted, in that case also, the notice was required to be issued against and in the name of the heirs of the deceased assessee and under the said circumstances, Section 159 of the Act shall not be of any assistance to the Revenue. 23. In the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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