TMI Blog2023 (7) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... equently, the jurisdictional requirement u/s 148 service of notice was not fulfilled. Scope of invocation of Section 292BB - In the 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. Thus this Court holds that the notice and all consequential proceedings in the name of the deceased assessee are null and void and consequentially the impugned notice dated 31.03.2021 u/s 148 of the Income Tax Act is quashed - Decided in favour of assessee. - A.S. CHANDURKAR AND MRS.VRUSHALI V. JOSHI, JJ. For the Petitioner : Mr. R. S. Thakar, Advocate with Mr. S. C. Thakar, Advocate. For the Respondents : Mr. Anand Parchure, Advocate with Mr. B. N. Mohata, Advocate. JUDGMENT (PER : MRS.VRUSHALI V. JOSHI , J.) 1. Rule. Rule made returnable forthwith and heard finally with consent of the learned Counsel for the parties. 2. The petitioner has challenged the notice issued on dead person under Section 148 of the Income Tax Act, 1961 (for short, the I. T. Act, 1961 ) dated 31.03.2021. The entire proceedings star ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d brief reply on 07.02.2022 stating that the Assessee had already filed return for the year 2016-17 on 31.03.2018 and enclosed therewith the copy of the said return and computation of total income for the year 2016- 17. Thereafter, again respondent No. 3 issued notice on 13.03.2022 in the name of the deceased Assessee. The petitioner submitted reply mentioning that the legal heir of the assessee has submitted the submissions for scrutiny which disclosed that the assessee is no more. 6. The respondent No. 3 again in the name of deceased person issued notice under Section 144 of the I.T. Act, 1961 calling upon the said Assessee to show cause as to why the ex parte assessment be not passed as detailed in the said notice dated 27.03.2022. In spite of all these facts and knowing full well that the Assessee Vasudeo Damduji Jambhulkar had died and knowing full well that no notice of reopening of assessment or making assessment can be issued to a dead person and knowing full well that no assessment or reassessment can be made on a dead person. The respondent No. 3 passed impugned reassessment order under Section 147 read with Section 144 of the I.T. Act, 1961 on the dead person, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout questioning the validity of notice. The contentions raised in the petition can also be agitated in the Appellate remedies available under the Act while questioning the validity of assessment order. The petition is not tenable on the ground of availability of alternate remedy. 11. The other ground raised by the petitioner is that the impugned notices were issued in the name of deceased Assessee and therefore, the proceedings are vitiated. The petitioner or anybody on his behalf had never submitted document to demonstrate that the Assessee has expired on 08.07.2020 and in spite of service of notice even death certificate of the deceased Assessee was not furnished. On the other hand, returns for the assessment year 2020-21 have been filed on 11.01.2021 in the name of deceased Assessee and the same were not filed on behalf of legal heirs of the deceased Assessee. The petitioner has miserably failed to point out as to how any of his fundamental rights have been infringed nor has pointed out that there was either error of jurisdiction or failure of principle of natural justice. The tenability of the petition itself is in doubt particularly in the light of the decision of the Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the assessment order passed subsequent would have no legs to stand. If the notice goes, so does the order of assessment. It is trite law that 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. 14. Another contention of the respondents is that as the petitioner has responded the notice and participated the proceeding, Section 292 BB comes in picture and the notice issued against dead person can not be a nullity. Section 292 BB reads thus : 292BB. Notice deemed to be valid in certain circumstances. Where an assessee has appeared in any proceeding or cooperated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of this Act and such assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the very initiation of the proceedings against the dead person and the continuation of the same despite having noticed the factum of death of the assessee, cannot be approved. 16. The learned Counsel for the petitioner has relied on the judgment of the Gujrat High Court in the case of Jaydeepkumar Dhirajlal Thakkar Vs. Income Tax Officer [(2018) 101 CCH 0085 Guj HC]. In the context of section 292BB of the Act, has held that the same would apply only to two types of proceedings namely (i) proceedings, in which, the assessee had appeared; and (ii) any inquiry, in which, the assessee had cooperated. 17. The issue which falls for consideration is as to whether the impugned notice under Section 148 of the I.T. Act, 1961 is issued in the name of dead person said Shri Vasudeo Jambhulkar is enforceable in law. The fact that Shri Vasudeo Jambhulkar died on 08.07.2020 is not disputed. The notice issued in the name of the dead person is unenforceable in the eye of law. 18. The respondents seek to justify their stand by contending that they were not intimated about the death of the assessee. The legal heirs did not take any steps to cancel the PAN r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 a merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. Thus, a notice which has been issued in the name of the dead person is also not protected either by provisions of Section 292B or 292BB of the Act. This is so as the requirement of issuing a notice in the name of correct person is the foundational requirement to acquire jurisdiction to reopen the assessment. This is evident from Section 148 of the Act, which requires that before a proceeding can be taken up for reassessment, a notice must be served upon the assessee. The assessee on whom the notice must be sent must be a living person i.e legal heir of the deceased assessee, for the same to be responded. This in fact is the intent and purpose of the Act. Therefore, Section 292B of the Act cannot be invoked to correct a foundational / substantial error as it is meant so as to meet the jurisdictional requirement. 23. The learned Counsel for the petitioner has also relied on the judgment in the case of Dharamraj Vs. Income Tax Officer [(2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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