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TMI Blog2020 (7) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... 0,00,000/-) in his bank account, time deposits of Rupees Eleven Lakhs Five Thousand Five Hundred Eighty Six (Rs. 11,05,586/-) and receipts of Rupees Twenty Five Thousand Four Hundred Fourteen (Rs. 25,414/-) as per Form 26AS. It was noticed that no return had been filed and the source of the aforesaid deposits and receipts remained unexplained and had escaped assessment. Accordingly, the case of Mr. Mohinder Paul Kapila was selected under Section 147/148 of the Act 1961, after recording of reasons and approval of PCIT-15, Delhi on 28th March, 2019. 3. However, late Shri Mohinder Paul Kapila (hereinafter referred to as "deceased-assessee") had already expired on 21st December, 2018. The deceased assessee is survived by two sons and two daughters. 4. Notice dated 31st March, 2019 under Section 148 of the Act 1961 for A.Y. 2012-2013 was issued, i.e. on the last date of limitation, in the name of deceased assessee Shri Mohinder Paul Kapila with PAN: ASXPK1666P and sent at his last known address known to the Income Tax Department i.e. Flat No. 286, 1st Floor, D Flats, Sector 9, Pkt-1, Dwarka, New Delhi 110075. The impugned notice could not and was never served upon Late Shri Mohinder P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that since the impugned notice under Section 148 of the Act, 1961 was issued subsequent to the death of the assessee, the statutory requirement of service under Section 148 of the Act, 1961 had not been fulfilled. In support of his submission, he relied upon the judgment of this Court in Braham Prakash v. ITO 2004 (9) TMI 49 (Delhi). The relevant portion of the said judgment is reproduced hereinbelow:- "......These notices appear to have been issued in consequence of the order dt. 25th Feb., 2002 pursuant to a notice issued under Section 148 of the Act. But, we find that the notice under Section 148 was issued in the name of Sheesh Ram when he was no more. In other words, it was a notice issued to a dead person. Obviously, the notice could not have been served upon the deceased. Moreover, there is nothing on record to show that the notice under Section 148 was served on the petitioner either. .....As such, it is clear that notice under Section 148 was neither served on the original assessed nor on the deemed assessed. Therefore, the subsequent proceedings are bad in law as there is breach of the principles of natural justice as well as the mandatory provisions contained in S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known about the death of the assessee. He pointed out that there was a different statutory authority under the Registration of Births and Deaths Act, 1969 which was responsible for maintaining the register of births and deaths and that the Revenue was not obliged under the law to suo motu maintain such record of 44.50 crore PAN card holders in the country. Therefore, it was incumbent upon the legal representatives of the late assessee to intimate about his death to the revenue. 17. Mr. Zoheb Hussain further submitted that the facts of the present case were distinguishable from the cases relied upon by the petitioner wherein Courts had quashed notices sent to non-existent entities, as in all such cases the information of such non-existence was available with the Assessing Officer prior to the issuance of notice. In support of his submission, he relied upon the decision in the case of Pr. Commissioner of Income Tax v. Maruti Suzuki India Limited, (2019) 416 ITR 613 (SC), wherein the Supreme Court had rendered the proceedings null and void on the basis of the following observation "In the present case, despite the fact that the assessing officer was informed of the amalgamating comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... COURT'S REASONING AN ALTERNATIVE STATUTORY REMEDY DOES NOT OPERATE AS A BAR TO MAINTAINABILITY OF A WRIT PETITION WHERE THE ORDER OR NOTICE OR PROCEEDINGS ARE WHOLLY WITHOUT JURISDICTION. IF THE ASSESSING OFFICER HAD NO JURISDICTION TO INITIATE ASSESSMENT PROCEEDING, THE MERE FACT THAT SUBSEQUENT ORDERS HAVE BEEN PASSED WOULD NOT RENDER THE CHALLENGE TO JURISDICTION INFRUCTUOUS. 23. It is well settled law that an alternative statutory remedy does not operate as a bar to maintainability of a writ petition in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or notice or proceedings are wholly without jurisdiction or the vires of an Act is challenged. [See Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1]. 24. Further, the fact that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ON AND NOT TO A DEAD PERSON. CONSEQUENTLY, THE JURISDICTIONAL REQUIREMENT UNDER SECTION 148 OF THE ACT, 1961 OF SERVICE OF NOTICE WAS NOT FULFILLED IN THE PRESENT INSTANCE. 25. In the present case the notice dated 31st March, 2019 under Section 148 of the Act, 1961 was issued to the deceased assessee after the date of his death [ 21st December, 2018] and thus inevitably the said notice could never have been served upon him. Consequently, the jurisdictional requirement under Section 148 of the Act, 1961 of service of notice was not fulfilled in the present instance. 26. In the opinion of this Court the issuance of a notice under Section 148 of the Act is the foundation for reopening of an assessment. Consequently, the sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. [See Sumit Balkrishna Gupta Vs. Asstt. Commissioner of Income Tax, Circle 16(2), Mumbai & Ors., (2019) 2 TMI 1209 - Bombay High Court]. 27. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E WHEN HE WAS ALIVE AND AFTER HIS DEATH THE LEGAL REPRESENTATIVE DID NOT STEP INTO THE SHOES OF THE DECEASED ASSESSEE, SECTION 159 OF THE ACT, 1961 DOES NOT APPLY TO THE PRESENT CASE. 30. Section 159 of the Act, 1961 applies to a situation where proceedings are initiated / pending against the assessee when he is alive and after his death the legal representative steps into the shoes of the deceased assessee. Since that is not the present factual scenario, Section 159 of the Act, 1961 does not apply to the present case. 31. In Alamelu Veerappan Vs. The Income Tax Officer, Non Corporate Ward 2(2), Chennai, 2018 (6) TMI 760 - Madras High Court, it has been held by the Madras High Court, "In such circumstances, 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." I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive illegality and not a procedural violation of the nature adverted to in Section 292B. xxxx xxxx xxxx xxxx 39. In the present case, despite the fact that the assessing officer was informed of the amalgamating company having ceased to exist as a result of the approved scheme of amalgamation, the jurisdictional notice was issued only in its name. The basis on which jurisdiction was invoked was fundamentally at odds with the legal principle that the amalgamating entity ceases to exist upon the approved scheme of amalgamation. Participation in the proceedings by the appellant in the circumstances cannot operate as an estoppel against law. This position now holds the field in view of the judgment of a co-ordinate Bench of two learned judges which dismissed the appeal of the Revenue in Spice Enfotainment on 2 November 2017. The decision in Spice Enfotainment has been followed in the case of the respondent while dismissing the Special Leave Petition for AY 2011-2012. In doing so, this Court has relied on the decision in Spice Enfotainment. 34. Consequently, the legal heirs are under no statutory obligation to intimate the death of the assessee to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case on hand, the assessee was dead. It was the assessee's son, who appeared and perhaps cooperated. Therefore, the primary condition for the invocation of Section 292BB is absent in the case on hand. Section 292BB is in place to take care of contingencies where an assessee is put on notice of the initiation of proceedings, but who takes advantage of defective notices or defective service of notice on him. It is trite to point out that the purpose of issue of notice is to make the noticee aware of the nature of the proceedings. Once the nature of the proceedings is made known and understood by the assessee, he should not be allowed to take advantage of certain procedural defects. That was the purpose behind the enactment of Section 292BB. It cannot be invoked in cases where the very initiation of proceedings is against a dead person. Hence, the second contention cannot also be upheld." 39. Even a Coordinate Bench of this Court in Rajender Kumar Sehgal (supra) has held "If the original assessee had lived and later participated in the proceedings, then, by reason of Section 292BB, she would have been precluded from saying that no notice was factually served upon her. When the n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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