TMI Blog2019 (2) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... on 292B of the Act. The issue of a notice under Section 143(2) of the Act so as to take up the assessment for scrutiny is not a procedural but a substantive provision. Therefore, where a notice is issued in the name of a wrong person, there would be no issuing of notice as required under the Act. In such cases, as in the case of Section 148 of the Act, the issuing of a notice in the name of the wrong person is not a procedural and / or clerical error. Therefore, being a substantive defect, the notice cannot be saved by Section 292B of the Act. - Decided in favour of assessee. - WRIT PETITION NO. 3563 OF 2018 - - - Dated:- 15-2-2019 - AKIL KURESHI M.S. SANKLECHA, JJ. Mr. Satish Mody a/w Ms. Aasifa Khan for the Petitioner Mr. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rishna Gupta. 2.4 The petitioner, by letter dated 16.11.2018, called upon the Assessing Officer to withdraw the impugned notice issued under Section 143(2) of the Act as it has been issued in the name of the dead person. By the aforesaid communication, respondent No. 1 was informed that the Revenue was aware about the death of original assessee Balkrishna Gupta as is evident from the assessment orders passed for the assessment year 2014-15 which was completed on 30.12.2016. Thus, the impugned notice is null and void. Therefore, no further proceeding be taken on the basis of the above notice. Besides the petitioner also registered its objection to the notice in terms of Section 292BB of the Act. 2.5 However, respondent No. 1 by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... himself with the Income Tax Authorities on its portal as the legal heir of the deceased assessee on 30.1.2017 i.e much before the issuance of the impugned notice. (c) Moreover on facts, the respondents were aware of the demise of the original assessee in as much as the earlier assessment order for assessment year 2014-15 was issued in the name of the petitioner as legal representative of the deceased assessee; (d) Section 292B will not come into play in case where the notice had been issued in the name of the dead person and in support, reliance was placed upon a decisions of Gujrat High Court in the case of Vikram Singh Vs. Union of India Ors. [2018] 401 ITR 307 (Gujrat), the Delhi High Court in the case of Rajendra Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner as a Legal Heir. The name of the deceased assessee in the title of the return of income was an inadvertent error. In any event, on 30.1.2017, the petitioner got himself registered as legal heir / representative of the deceased assessee in the software system maintained by the Authority. Thus, the Department was well aware of the fact on the date that the impugned notice dated 31.7.2017 under Section 143(2) was issued, the petitioner is the legal representative of the deceased assessee. Moreover, from the record it has been shown to us that for the earlier assessment years 2014-15, the Revenue has passed an assessment order in the name of the petitioner as legal Representative of the deceased assessee Balkrishna Gupta. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce issued under Section 143(2) of the Act which gives jurisdiction to complete the assessment having been issued in the name of the dead person is noneset in law as it is not the saved by Section 292B of the Act. The issue of a notice under Section 143(2) of the Act so as to take up the assessment for scrutiny is not a procedural but a substantive provision. Therefore, where a notice is issued in the name of a wrong person, there would be no issuing of notice as required under the Act. In such cases, as in the case of Section 148 of the Act, the issuing of a notice in the name of the wrong person is not a procedural and / or clerical error. Therefore, being a substantive defect, the notice cannot be saved by Section 292B of the Act. 9. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
