TMI Blog2023 (6) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal representative that the noticee/assessee had died. Thus the present petition deserves to be allowed. It is hereby allowed by holding that the impugned notice, which was against the dead assessee, could not be sustained. Decided against revenue. - R/SPECIAL CIVIL APPLICATION NO. 3421 OF 2022 - - - Dated:- 27-3-2023 - HONOURABLE MR. JUSTICE N.V.ANJARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA MR SN DIVATIA FOR THE PETITIONER MR. KARAN SANGHANI, ADV. WITH MRS KALPANAK RAVAL FOR THE RESPONDENT ORDER PER : HONOURABLE MR. JUSTICE N.V.ANJARIA Heard learned advocate Mr. S. N. Divatia for the petitioner and learned advocate Mr. Karan Sanghani with learned advocate Ms. Kalpana Raval for the respondent d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the death of said Ravji Harji Rabadia was not intimated nor the PAN was terminated. It was submitted that the notice was competent. 5. The factum of death of the person sought to be issued notice under section 148 of the Act is not in dispute. It also transpires from the record, in particular from communication dated 13.7.2021, that the petitioner wife and the heir of the deceased, had intimated about the death of said Ravji Harji Rabadia by sending the death certificate to the competent authority. The competent authority was requested to take note of the fact and close the proceedings. 6. The issue that the assessment proceedings against a dead person are not competent and that the notice or orders issued by the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry issue. The Court considered various decisions of the Supreme Court and the High Court, touching the aspects of the issue, held that there cannot be any assessment against a dead person. In that case also, notice was issued to the dead assessee under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the Act ). 5.1 While holding that the proceedings would be nullity against the dead assessee, the rider was provided that in cases where legal representatives participate in the assessment or reassessment proceedings, the proceedings may be maintained and continued. It was at the same time held that mere intimation by the legal representative to the assessing officer that the noticee is dead, would not amount to legal rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmed as nullity. It is something like a safeguard passing a decree against a dead person which cannot be executed through the legal representatives of the judgment-debtor. 5.4.1 The continuation of proceedings pursuant to notice under Section 148 of the Act was held to be without authority of law by the Court stating thus - ...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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee-Gordhandas Madhavji Somaiya died on 20.08.2019. Notice under section 148 of the Income Tax Act came to be issued on 30.3.2021, that is after about nineteen months from the death of the assessee. 5.3 Noticeably, it transpires from the record that the petitioner herein who happens to be the legal representative of the deceased assessee, intimated to the Income Tax officer concerned on 16.2.2022 by addressing letter that the noticee Gordhandas Madhavji Somaiya had died long back and that the notice was without jurisdiction. The Income Tax authorities did not pay heed to the said intimation. 5.4 The facts of the case did not offer any fact or circumstances to suggest that the legal representative of the deceased assessee in any mann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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