2022 (10) TMI 1123 - HC - Income Tax

Assessment proceedings against dead person - curable defect u/s 292B or not? - Notice deemed to be served on legal representative or not? - HELD THAT - The Division Bench of this Court in Urmilaben Anirudhhasinji Jadeja 2019 (9) TMI 356 - GUJARAT HIGH COURT addressed the very issue. The Court considered various decisions of the Supreme Court and the High Court touching the aspects of the issue and 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. Provision of section 292BB would not apply in cases where notices are gone to the dead assessee and the proceedings are started against a dead assessee The facts of the case do not offer any fact or circumstances to suggest that the legal representative of the deceased assessee in any manner submitted to the jurisdiction of the income tax authorities or in any way participated in the proceedings so as to persuade the court to hold otherwise. In view of the above 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 in favour of assessee.

Summary

Issues:
Validity of notice issued under section 148 of the Income Tax Act, 1961 to a deceased person.

Analysis:
The petitioner, a legal heir, challenged a notice issued by the Assessing Officer under section 148 of the Income Tax Act, 1961, for the Assessment Year 2014-2015, against the deceased Khimji Harji Patel. The petitioner contended that the notice issued to a deceased person was invalid, especially after informing the authorities of the death. The petitioner argued that any assessment order against the deceased could not be passed onto the legal heir. The court referred to the case law, including Urmilaben Anirudhhasinji Jadeja Vs. Income Tax Officer, where it was held that no assessment could be made against a dead person. The court emphasized that proceedings against a dead assessee would be null and void unless legal representatives actively participate in the assessment proceedings. The court rejected the application of Section 292BB of the Act in such cases, stating that issuing a notice to a dead person renders the proceedings a nullity, akin to passing a decree against a deceased individual. The court also cited a similar decision in Chandreshbhai Jayantibhai Patel vs. Income Tax Officer, where the legal representative did not submit to the jurisdiction or participate in the proceedings. Consequently, the court allowed the petition, holding that the notice against the deceased assessee was not sustainable.

In conclusion, the court allowed the petition, declaring the notice issued against the deceased Khimji Harji Patel as illegal and set it aside. The court made the rule absolute, emphasizing that the notice dated 22.07.2022 issued by the income tax authorities to the deceased was invalid.