TMI Blog2019 (7) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... t thereto, therefore, cannot be sustained - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 10404 of 2019 - - - Dated:- 25-6-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Petitioner (s) : MS NUPUR D SHAH (10233) For The Petitioner (s) : NISHIT B JESUR (9419) For The Respondent (s) : MR.VARUN K.PATEL (3802) ORAL ORDER ( PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) 1. Rule returnable forthwith. Mr. Varun K. Patel, the learned counsel waives service of notice of rule for and on behalf of the Revenue. 2. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs : ( a) to issue a writ of certiorari or in the nature of certiorari or any other appropriate writ, orders or directions quashing and setting the impugned notice dated 29/03/2019 issued by the Respondent proposing to reopen the assessment of the Petitioner for A.Y. 2012-13. ( b) The notice for reopening of assessment of a deceased person u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer has jurisdiction to issue the impugned notice. The present petition therefore, does not deserve to be entertained by this Court. 3. It is submitted that in the present case, the impugned notice u/s. 148 of the Act dated 29.03.2019 for A.Y. 2012-13 is issued in the name of Bhartiben Harendra Modi (Annexure-A page-12). The said notice u/s. 148 of the Act is challenged in the present petition mainly on the ground that the said assessee viz. Bhartiben Harendra Modi has expired on 28.05.2017 and the notice issued against the dead person is invalid in law. In this regard, it is submitted that on the basis of information in Annual Information Return (AIR), it was found that the said deceased assessee had sold one immovable property amounting to ₹ 82,89,000/-. However, the assessee has not filed any income tax return. The Assessing Officer then, after recording the satisfaction to the effect that income of ₹ 82,89,000/- has escaped the assessment due to failure on the part of the assessee to submit her return of income u/s. 139 of the Act, has issued the impugned notice u/s. 148 of the Act fir the A.Y. 2012-13. It is submitted that in view of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs for issuance of notice u/s. 148 of the Act is already expired on 31.03.2019. 5. The issue raised in this writ application is very limited and no longer res integra. It appears that the writ applicant is the son of late Smt. Bhartiben Harendra Modi. Late Smt. Bhartiben Harendra Modi was assessed in the office of the Income Tax Officer-Ward-3(1)(2), Vadodara. It is the case of the Revenue that late Smt. Modi had not filed her return of income under Section 139 for the Assessment Year 2012-13 and had not declared her total income. The department issued a notice dated 29.03.2019 to late Smt. Modi under Section 148 of the Income Tax Act, 1961. By the time the notice was issued, Smt. Modi had passed away. In such circumstances, Mr. Patel, the learned counsel for the Revenue with his usual fairness submitted that there is no escape from the fact that the department issued notice to a dead person. However, Mr. Patel submitted by placing reliance on Section 292B of the Act that the impugned notice would not become a nullity or invalid merely by reason of some mistake/defect. In such circumstances, according to Mr. Patel, if a notice under Section 148 of the Act is issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited the attention of the court to the provisions of section 292B of the Act, which inter alia provide that no notice, summons or other proceeding, issued or taken in pursuance of any of the provisions of the Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such notice, summons or other proceeding if such notice, summons or other proceeding is, in substance and effect, in conformity with or according to the intent and purpose of the Act. It was submitted that in the light of the provisions of section 292B of the Act, the defect in the notice by issuing the same to a dead person would not render the notice invalid, inasmuch as it is a purely procedural lapse. 6.4 Reliance was placed upon the decision of the Delhi High Court in the case of Sky Light Hospitality LLP v. Assistant Commissioner of Income Tax, (2018) 405 ITR 296 (Delhi), wherein the court has held thus: 17. In the context of the present writ petition, the aforesaid ratio is a complete answer to the contention raised on validity of the notice under section 147/148 of the Act as it was addressed to the erstwhile company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ombay High Court in Maharaja of Patiala v. Commissioner of Income Tax (Central), Bombay, (1943) 11 ITR 201, for the proposition that an assessment made without strictly complying with section 24-B (section 159 in the present Act) is not void or illegal and that any infractions in that behalf can be waived by the assessee. The court also placed reliance upon its earlier decision in Estate of Late Rangalal Jajodia v. Commissioner of Income Tax, Madras, (1971) 79 ITR 505 (SC), for the proposition that an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where such liability is created by distinct substantive provisions (charging sections). Any such omission or defect may render the order made irregular depending upon the nature of the provision not complied with, but certainly not void or illegal. Following the said decisions, the court held that in the facts and circumstances of the case, the orders of assessment made by the Income Tax Officer without notice to all the legal representatives are not null and void in law, but are merely irregular/defective proceedings which can be set right by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his son and in his capacity as legal heir, requested him to drop the proceedings. Thereafter, another notice dated 10.07.2018 came to be issued under sub-section (1) of section 142 of the Act to Shri Jayantilal Harilal Patel calling upon him to furnish the details mentioned therein. In the annexure to the said notice, the assessee was called upon to show cause as to why penalty proceedings under section 217F of the Act should not be initiated in his case as he had not furnished return of income in response to the notice under section 148 and stating that this may be treated as a notice under section 142(1) read with section 129 of the Income Tax Act, 1961. 8. The petitioner addressed a letter dated 02.08.2018 to the Income Tax Officer objecting to the notices issued under section 148 as well as under section 142(1) of the Act and drew his attention to the earlier letter dated 27.04.2018 informing him about the death of his father and requesting him to drop the proceedings. The attention of the Income Tax Officer was further invited to the provisions of section 159 of the Act, to submit that the proceedings are required to be initiated against a legal representativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n section 159 of the Act is concerned, the Assessing Officer observed that in this case, the assessee (the petitioner) had introduced himself as a son of the deceased assessee and as legal heir and has produced death certificate in response to the notice issued under section 148 of the Act. Therefore, as the legal heir, upon being served with the notice under section 148, has participated in the proceedings, the reassessment proceedings initiated are legal and valid. Reliance has been placed upon the decision of the Madras High Court in the case of V. Ramanathan v. Commissioner of Income Tax, (1963) 49 ITR 881 (Madras). It is further stated therein that it is not in dispute that Shri Chandreshbhai J. Patel is the legal heir of the deceased assessee; therefore, the proceedings initiated against the legal representative/legal heir are valid and legal. 12. In the backdrop of the aforesaid facts, it is an admitted position that the notice under section 148 of the Act was issued to a dead person. The petitioner being the heir and legal representative of the deceased, upon receipt of the notice, immediately raised objection against the validity of the impugned notice an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od on the date of the death of the deceased; ( b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and ( c) all the provisions of this Act shall apply accordingly. ( 3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. ( 4) Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains undercharged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value of the asset so charged, disposed of, or parted with. ( 5) The provisions of sub-section (2) of section 161, section 162 and section 167, shall, so far as may be and to the extent to which they are not inconsistent with the provisions of this section, apply in relation to a legal representative. ( 6) The liability of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which it stood on the date of the death of the deceased. In the present case, the proceeding under section 147 of the Act had not been initiated against the deceased before his death, and hence, clause (a) would not be applicable in the facts of this case. 15. Clause (b) of sub-section (2) of section 159 of the Act provides that any proceeding which could have been taken against the deceased if he had survived may be taken against the legal representative. The present case would, therefore, fall within the ambit of section 159(2)(b) of the Act and, hence, the proceeding can be taken against the legal representative. Now, it cannot be gainsaid that a proceeding under section 147 of the Act of reopening the assessment is initiated by issuance of notice under section 148 of the Act, and as a necessary corollary, therefore, for taking a proceeding under that section against the legal representative, necessary notice under section 148 of the Act would be required to be issued to him. In the present case, the impugned notice under section 148 of the Act has been issued against the deceased assessee. In the opinion of this court, since this is not a case falling under cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration is whether the notice under section 148 of the Act issued against the deceased assessee can be said to be in conformity with or according to the intent and purposes of the Act. In this regard, it may be noted that a notice under section 148 of the Act is a jurisdictional notice, and existence of a valid notice under section 148 is a condition precedent for exercise of jurisdiction by the Assessing Officer to assess or reassess under section 147 of the Act. The want of a valid notice affects the jurisdiction of the Assessing Officer to proceed with the assessment and thus, affects the validity of the proceedings for assessment or reassessment. A notice issued under section 148 of the Act against a dead person is invalid, unless the legal representative submits to the jurisdiction of the Assessing Officer without raising any objection. Therefore, where the legal representative does not waive his right to a notice under section 148 of the Act, it cannot be said that the notice issued against the dead person is in conformity with or according to the intent and purpose of the Act which requires issuance of notice to the assessee, whereupon the Assessing Officer assumes j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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