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2018 (2) TMI 439 - HC - Income TaxReopening of assessment - assessment against deceased person - liability of Legal representatives - Held that - As the original assessee viz. father of the petitioner passed away on 19.08.2012. The petitioner had informed the revenue authorities about the same in the year 2013. The authorities were very well aware that the petitioner is the heir and legal representative of the deceased assessee, despite which, more than four years after the death of the assessee, the impugned notice has been issued in his name, namely against the deceased assessee. On a plain reading of section 159 of the Act, it is apparent that for the purpose of making an assessment, (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of subsection (1) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative. Therefore, in the light of the provisions of section 159 of the Act the proceedings are required to be initiated against a legal representative and not against the deceased. The impugned notice under section 148 of the Act is therefore, not in consonance with the provisions of section 159 of the Act. Insofar as the provisions of section 292B of the Act are concerned, the same would not be applicable in the facts of the present case as the proviso thereto says that nothing contained in the section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. In the present case, apart from the petitioner is not the assessee, the petitioner has raised objection before completion of the reassessment and, therefore, the provisions of section 292BB would not be applicable in the facts of the present case. - Decided in favour of assessee
Issues:
Challenge to notice under section 148 of the Income Tax Act, 1961 issued to a deceased person. Analysis: The petitioner challenged a notice issued under section 148 of the Income Tax Act, 1961, dated 30.03.2017, addressed to a deceased person, late Shri Dhirajlal Dayaljibhai Thakkar, who passed away on 19.08.2012. The petitioner, being the legal heir, filed the petition under Article 226 of the Constitution of India. The petitioner argued that the notice issued against a dead person is a nullity. The petitioner's counsel referred to the provisions of section 159 of the Act, emphasizing that proceedings against a deceased person should be taken against the legal representative. The counsel relied on previous court decisions to support the argument that the notice should have been issued in the name of the legal heir, not the deceased person. The respondent contended that the notice was computer-generated based on the deceased assessee's PAN and that the proceedings were not vitiated by the death of the assessee. The respondent argued that the legal heir's participation in the appellate proceedings validated the notice. The respondent cited sections 292B and 292BB of the Act to support their position that the notice was valid and legally sound. In response, the petitioner's counsel referred to a decision by the Madras High Court regarding the application of section 292BB, highlighting that in cases where the assessee is deceased, the provisions may not apply. The petitioner argued that the notice should be set aside based on this interpretation. After considering the arguments and precedents cited by both parties, the court found that the notice issued against a deceased person was a nullity. The court emphasized that proceedings against a deceased assessee should be initiated against their legal representative, as per the provisions of section 159 of the Act. The court held that the notice under section 148 of the Act was not in compliance with the law and, therefore, quashed and set aside the impugned notice issued to the deceased father of the petitioner for the assessment year 2010-11. The petition was allowed, and the rule was made absolute accordingly.
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