TMI Blog2019 (4) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s father since on 13.3.2018 in response to the summons issued u/s 131(1A) the petitioner had intimated to the department about the death of his father. Therefore, it cannot be said that the respondent was not aware about the death of the father of the petitioner and he could have belatedly issued notice under section 159 of the Act upon the legal representatives of late Shri Kanubhai Nagjibhai Rajpara. The contention advanced that since Permanent Account Number of late Shri Kanubhai Nagjibhai Rajpara was active, it can be presumed that tax payer was alive, cannot be sustained in view of the fact that only because Permanent Account Number is active, petitioner or any assessee is not liable to file the return of income and on that basis it cannot be presumed that the assessee is alive, more particularly, when the department is made to know about the death of the assessee prior to issuance of the impugned notice. In view of the aforesaid settled legal proposition that no valid notice can be issued against a dead person, the impugned notice is required to be quashed and set aside. - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 16125 of 2018 - - - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also relied on various case laws in support of his contention that the impugned notice is without any jurisdiction which is issued against a dead person and further prayed that the proceedings under section 148 of the Act should be dropped. 4.3) Respondent by letter/order dated 25.7.2018 however, rejected the objections raised by the petitioner on the ground that the petitioner has never given any intimation regarding the death of Shri Kanubhai Nagjibhai Rajpara to the jurisdictional Assessing Officer and further, it was also stated that notice under section 148 of the Act was served personally on 31.3.2018 at the address of the petitioner as well as by speed post. The petitioner was required to reply to the said notice by filing return. Respondent also stated that Permanent Account Number of late Shri Kanubhai Nagjibhai Rajpara is active and no intimation is given with regard to his death and therefore, notice issued under section 148 of the Act is proper and in accordance with law. 4.4) By another letter/order dated 8.8.2018, respondent by placing reliance upon section 292B of the Act, informed the petitioner that the notice issued under section 148 of the Act is a valid no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad assessee is merely a technical defect which could be corrected under section 292B of the Act. Reliance has been placed on the above referred decisions of the Supreme Court as well as the High Courts for contending that the proceedings would not be null and void merely because the notice has been issued against a dead person as the legal representative had received the notice and has objected to the validity of the notice and further continuation of the proceedings. In the opinion of this court, here lies the distinction between those cases and the present case. In the relied upon cases, the legal representative, in response to the impugned notice, filed return of income and participated in the proceeding and then raised an objection to the validity of the proceeding and, therefore, the court held that this was a case of waiver and that a technical defect can be waived; whereas in this case, right from the inception the petitioner has objected to the validity of the notice and thereafter to the continuation of the proceeding and has at no point of time participated in the proceeding by filing the income tax return in response to the notice issued under section 148 of the Act. Had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the provisions of section 159(2)(b) of the Act, it is permissible for the Assessing Officer to issue a fresh notice under section 148 of the Act against the legal representative, provided that the same is not barred by limitation; he, however, cannot continue the proceedings on the basis of an invalid notice issued under section 148 of the Act to the dead assessee. 19. In the facts of the present case, as noticed hereinabove, the notice under section 148 of the Act, which is a jurisdictional notice, has been issued to a dead person. Upon receipt of such notice, the legal representative has raised an objection to the validity of such notice and has not complied with the same. The legal representative not having waived the requirement of notice under section 148 of the Act and not having submitted to the jurisdiction of the Assessing Officer pursuant to the impugned notice, the provisions of section 292B of the Act would not be attracted and hence, the notice under section 148 of the Act has to be treated as invalid. In the absence of a valid notice, the Assessing Officer has no authority to assume the jurisdiction under section 147 of the Act and, hence, continuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the facts of the present case also father of the petitioner expired on 12.6.2016 and impugned notice was issued on 28.3.2018. In facts of the present case, even prior to issuance of notice, department was aware about the death of the petitioner's father since on 13.3.2018 in response to the summons issued under section 131(1A) of the Act, the petitioner had intimated to the department about the death of his father. Therefore, it cannot be said that the respondent was not aware about the death of the father of the petitioner and he could have belatedly issued notice under section 159 of the Act upon the legal representatives of late Shri Kanubhai Nagjibhai Rajpara. 9. The contention advanced by the learned senior standing counsel for the respondent that since Permanent Account Number of late Shri Kanubhai Nagjibhai Rajpara was active, it can be presumed that tax payer was alive, cannot be sustained in view of the fact that only because Permanent Account Number is active, petitioner or any assessee is not liable to file the return of income and on that basis it cannot be presumed that the assessee is alive, more particularly, when the department is made to know about the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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