TMI Blog2023 (2) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... is allowed. Quashing and setting aside the notice and all consequential orders. However, if otherwise permissible under the law, a fresh notice under Section 159(2)(b) of the Income Tax Act in this relation to the legal heirs is permitted. - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 3917 OF 2022 - - - Dated:- 10-1-2023 - HONOURABLE MS. JUSTICE SONIA GOKANI AND HONOURABLE MR. JUSTICE SANDEEP N. BHATT MS NUPUR D SHAH FOR THE PETITIONER MR NIKUNT K RAVAL FOR THE RESPONDENT JUDGMENT PER : HONOURABLE MS. JUSTICE SONIA GOKANI 1. Petitioner is before this Court seeking to challenge the proceedings carried out under Section 147, 148 and other allied provisions of the Income Tax Act, 1961 ( he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment year 2017-18 has escaped the assessment within the meaning of Section 147 of the Act. It is proposed to reassess the income while issuance of this notice under Section 148 of the Act. 4. The legal heirs had tendered two communications dated 19th July, 2021 and 22nd July, 2021 in response to the said notice challenging its validity on the ground that the notice to the deceased was impermissible under the law. The prayers sought for by the petitioner are as follows :- a. The Hon ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order direction or command in the nature of writ of mandamus holding and declaring that the impugned notice issued in the name of the decesed petitioner is devoid of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. This Court had issued notice to the respondents and also granted interim protection vide order dated 7th March, 2022 [Coram: Mr.J.B.Pardiwala, (as His Lordship then was) Ms. Nisha Thakore, JJ] . 6. We have heard Ms. Nupur Shah, learned advocate appearing for the petitioner and Mr.Nikunt Raval, learned Sr.Standing Cousel for the respondents 7. It is not being disputed that the notice issued is on late Smt. Madhuben Kantibhai Patel represented by Mr. Kalpeshbhai Kantibhai Patel- present petitioner. 8. The draft order under clause (d) of Section 148A of the Act was also served upon the legal heirs, pursuant to the directions issued by the Hon ble Apex Court in the case of Union of India Vs. Ashish Agrawal others (444 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceased 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 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. 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 preceeding for assessment or reassessment. A notice issued under Section 148 against a dead person is invlid, inless the legal representative submits to the jurisdiction of the Assessing Officer without raising any objection. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 147 and hence, continuation of the proceeding under Section 147 pursuant to such invalid notice, is without authority of law. The impugned notice as well as the proceedings taken pursuant thereto, therefore, cannot be sustained. For the forgoing reasons, the impugned notice issued by the respondent under section 148 as well as all proceedings pursuant thereto, are hereby quashed and set aside. 10. The similar view is taken in case of Urmilaben Aniruddhasinhji Jadeja Vs. ITO [117 taxmann.com 504 (Gujarat) 11. Resultantly, this petition is allowed. Quashing and setting aside the notice and all consequential orders. However, if otherwise permissible under the law, a fresh notice under Section 159(2)(b) of the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X
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