TMI Blog2018 (6) TMI 760X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings 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 The language employed in Section 292B of the Act is categorical and clear. The notice has to be, in substance and effect, in conformity with or according to the intent and purpose of the Act. Undoubtedly, the issue relating to limitation is not a curable defect for the Revenue to invoke Section 292B of the Act. - Decided against revenue - Writ Petition No. 30060 of 2017 & WMP. No. 32631 of 2017 - - - Dated:- 7-6-2018 - T. S. Sivagnanam, J. For the Petitioner : Ms. Deepika Sekar For the Respondent : Mrs. Hema Muralikrishnan, SPC ORDER Heard the learned counsel on either side. 2. The petitioner has filed this writ petition praying for the issuance of a Writ of Certiorarified Mandamus to quash the notice dated 30.3.2017 issued under Section 148 of the Income Tax Act, 1961 (hereinafter called the Act) in the name of her deceased husband one Mr.S.Veerappan and to forbear the respondent from in any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 re-assessment proceedings. 7. In this regard, she also relies upon the decision of the High Court of Madhya Pradesh in the case of Shaikh Abdul Kadar Vs. ITO [reported in AIR 1959 M.P. 101]. Further, relying upon the decision in the case of Mrs. Kesar Devi Vs. CIT [2010 (321) ITR 341(Raj.)], it is submitted that the notice issued under Section 148 of the Act to a dead person is illegal. 8. Much reliance has been placed on the decision of the High Court of Delhi in the case of Vipin Walia Vs. ITO [reported in (2016) 382 ITR 19], which was followed by the High Court of Gujarat at Ahmedabad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the High Court of Delhi considered the decision in the case of Spice Entertainment Ltd. Vs. CST [reported in (2011) SCC Online Del. 3210] and held that the notice issued in the case of Sky Light Hospitality LLP was a nullity and that errors and mistakes can be corrected. Therefore, it is submitted that the petitioner should respond to the notice, file her objections and participate in the proceedings. 13. This Court has carefully considered the submissions made by the learned counsel on either side and perused the records. 14. The issue, which falls for consideration, is as to whether the impugned notice under Section 148 of the Act issued in the name of the dead person - the said Mr.S.Veerappan is enforceable in law and the subsidiary 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 notice has to be, in substance and effect, in conformity with or according to the intent and purpose of the Act. Undoubtedly, the issue relating to limitation is not a curable defect for the Revenue to invoke Section 292B of the Act. 21. All the above reasons are fully supported by the decision in the case of Vipin Walia. In that case, the notice dated 27.3.2015 was issued under Section 148 of the Act to the assessee, who died on 14.3.2015. The validity of the said notice was put to challenge. The Income Tax Officer took a stand that since the intimation of death of the assessee on 14.3.2015 was not received by her, the notice was issued on a dead person. However, the fact regarding the death of the assessee could not be disputed by the Department. The Department continued the proceedings under Section 147/ 148 of the Act and at that stage, the son of the deceased approached the High Court of Delhi. The High Court of Delhi pointed out that what was sought to be done by the Income Tax Officer was to initi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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