TMI Blog2021 (11) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be continued against the legal representatives, is an argument that is liable to be rejected as the question of continuation of proceedings of an assessment against the legal representatives is only in the scenario as contemplated under Section 159(2)(a) i.e., where the assessee is alive at the initiation of proceedings and has subsequently died. In the case on hand, the assessee having died on 11.11.2014, claims or proceedings, if any against the deceased assessee ought to be under Section 159(2)(b). As Section 159 does not permit of any ambiguity, any elasticity to the time period fixed under Section 149 and the manner of initiation of proceedings against the deceased assessee as provided under Section 159(2)(b) is impermissible. Assessment proceedings initiated against Kurkal Gopal Shetty under Section 148 is sought to be continued and concluded as against the legal representatives not by way of any fresh notice to the legal representatives under Section 148 but by way of notice to furnish return under Section 142 which again relates to a subsequent stage of reassessment proceedings. The judgment in the case of Alamelu Veerappan [ 2018 (6) TMI 760 - MADRAS HIGH COURT] p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessment year 2011-12 enclosed at Annexure- E; (f) Quashing of demand notice issued under Section 156 vide Annexure-F1; (g) Quashing of recovery notice vide Annexure-F2 and (h) Quashing of show cause notice issued under Section 274 read with Section 271F vide Annexure-G. 2. The petitioners, admittedly, are the legal heirs of Late Kurkal Gopal Shetty. It comes out from the facts that a notice came to be issued under Section 148 of the Act on 28.03.2018 with respect to the assessment year 2011-12 stating that the authority had reasons to believe that the income chargeable to tax for the Assessment Year 2011-12 had escaped assessment within the meaning of Section 147 of the Income Tax Act and had expressed their intention to reassess the income and called upon the noticee to file return in the prescribed form for the said assessment year within 30 days from the service of the said notice, which is enclosed at Annexures-A1 and A2 issued contemporaneously. Subsequently, it comes out that a notice under Section 142(1) of the Act came to be issued for the assessment year 2011-12 in the name of deceased Kurkal Gopal Shetty dated 12.07.2018. 3. An aspect to be taken no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmal notice as regards to the petitioners herein came to be issued only on 19.11.2018 and 21.12.2018 and that these notices were only 142(1) notices and no notices were issued under Section 148. It is further contended that the power of issuance of notice viz-a-viz legal representatives is as provided under Section 159(2) of the Act and the notice insofar as the legal representatives of the deceased will have to be in terms of Section 159(2)(b) and such notice must be within the period prescribed under Section 148 and in the present case, no notice having been issued within the period of 6 years i.e., before 31.03.2018, the notice issued to the deceased Kurkal Gopal Shetty would not come to the aid of the department to save the notices issued to petitioners. It is contended that the notices under Section 142 were also issued subsequently and the assessment order though issued in the names of the petitioners when the very commencement of the reassessment proceedings as per the notice at Annexure-A1 is invalid, the reassessment order passed in the names of the petitioners would automatically go. 5. Learned counsel for the petitioners has relied on the following judgments: a. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... default under any provisions of this Act'. He also draws attention to Sections 159(3) and (4) of the Income Tax Act, which provides that the legal representative of the deceased, shall for the purpose of the Act, be deemed to be an assessee and shall be personally liable for any tax payable by the original assessee. It is further contended that without prejudice to his other contentions that even if the reassessment order is set aside, the right of initiation of proceedings de novo ought to be protected and the matter may be remanded for reconsideration by the Assessing Authority. 8. Heard both sides. 9. The admitted facts relevant for the present purpose are that the assessee - Kurkal Gopal Shetty has died on 11.11.2014 in United Kingdom and the notice under Section 148 for the first time was issued on 28.03.2018 in the name of Kurkal Gopal Shetty. It must also be noted that the last date for initiation of assessment proceedings for the assessment year 2011-12 was 31.03.2018. 10. The relevant extract of Section 159 of the Act reads as follows:- 159. (1) Where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght of the revenue to initiate proceedings as regards to the deceased assessee, Section 159(2)(b) permits proceedings to be initiated against the legal representatives as regards all proceedings which could have been taken against the deceased if he had survived. 14. In the present facts, admittedly, the proceedings are initiated under Section 148 for reassessment relating to escapement of income of late Kurkal Gopal Shetty and such proceedings as has been initiated in the year 2018 by when Kurkal Gopal Shetty had already died (on 11.11.2014). The proceedings in terms of Section 159(2)(b) ought to have been taken against the legal representatives of late Kurkal Gopal Shetty at the first instance. It ought to be noted that the period allowable for initiating the proceedings under Section 148 is the period prescribed under Section 149(1) (b) which position is not in dispute and accordingly, proceedings ought to have been initiated as on 31.03.2018. 15. The question as to whether proceedings initiated against the deceased Kurkal Gopal Shetty was sufficient to continue proceedings of reassessment as regards the legal representatives is a matter that requires to be answered. The l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed under Section 149(1)(b) such proceedings would not be valid. 17. In the present case while the notice at its inception to Kurkal Gopal Shetty who is dead is invalid insofar as any claim by the department as against the dead assessee should be only by issuance of notice to the legal representatives in terms of Section 159(2)(b) and except this procedure, there can be no other procedure envisaged. This would flow from the premise that any act which is required to be done in a particular manner must be done in that manner or not at all which is a settled legal proposition. In the present case, it also ought to be noted that though notice was issued to the dead assessee, the contention that as there is no abatement, and proceedings must be permitted to be continued against the legal representatives, is an argument that is liable to be rejected as the question of continuation of proceedings of an assessment against the legal representatives is only in the scenario as contemplated under Section 159(2)(a) i.e., where the assessee is alive at the initiation of proceedings and has subsequently died. In the case on hand, the assessee having died on 11.11.2014, claims or proceedings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffairs which ought to have been issued under Section 159(2)(b) to the legal representatives cannot be saved by recourse to Section 292B. 21. As regards the contention of learned counsel - Sri. E.I.Sanmathi, seeking for remanding of the matter back for fresh consideration by the Assessing Authority by permitting de novo proceedings with respect to the same assessment year by rectifying the formal defect in notices issued, by placing reliance on the judgments referred in paragraph No.5 above, it ought to be noticed that no doubt in all the 3 orders relied upon by Sri. Sanmathi, learned counsel (Judgment dated 12.02.2018 passed in ITA No.100042/2017; Judgment dated 03.09.2019 passed in ITA No.877/2018 and the judgment in the case of St. Sudha Prasad v. Chief Commissioner of Income Tax - 275 ITR Page 135), the Court had permitted de novo proceedings to be initiated for the same assessment year against the legal representatives. However, what does not come out from the facts in the aforesaid cases is the consideration of the point of limitation vis- -vis the proposed proceedings against the legal representatives. If the case was that proceedings were initiated against the decease ..... X X X X Extracts X X X X X X X X Extracts X X X X
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