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2023 (8) TMI 931 - HC - Income TaxReopening of assessment u/s 147 - notice issued against deceased assessee - HELD THAT - The issue that proceedings against dead persons are void ab intio is an issue which is settled by several decisions of this Court as in the case of Krishnaawtar Kabra of Jagannath Rampal Kabra 2022 (5) TMI 744 - GUJARAT HIGH COURT and in the case of Chandreshbhai Jayantibhai Patel v. Income Tax Officer 2019 (1) TMI 353 - GUJARAT HIGH COURT - Under the circumstances, the provisions of Section 292B and 292BB of the Act shall not apply in the facts of the case on hand as issuing notice to deceased assessee is not a curable defect - Decided against revenue.
Issues Involved:
1. Validity of proceedings against a deceased person. 2. Applicability of Sections 292B and 292BB of the Income Tax Act. 3. Compliance with amended procedures post-01.04.2021. Summary: Issue 1: Validity of proceedings against a deceased person The petitioner sought a writ of certiorari to quash the order u/s 148A(d) of the Income Tax Act, 1961 dated 30.7.2020 and the impugned notice of even date for reopening the assessment of the deceased assessee for AY 2017-18. The Court noted that the deceased had filed his return for AY 2017-18, but died on 30.9.2020. Despite informing the department of the death, a notice u/s 148 was issued on 30.7.2022 to the deceased. The Court held that proceedings against dead persons are void ab initio, citing several precedents including Krishnaawtar Kabra and Chandreshbhai Jayantibhai Patel. The Jharkhand High Court in Sandeep Chopra emphasized that any reassessment notice issued to a deceased person is non est and void ab initio. Issue 2: Applicability of Sections 292B and 292BB of the Income Tax ActThe Court discussed the provisions of Sections 292B and 292BB, which address the validity of notices and proceedings despite mistakes or defects. However, it was clarified that these sections do not save the complete absence of a notice or a notice issued to a dead person. The Delhi High Court in Rajender Kumar Sehgal and the Supreme Court in PCIT Vs. Maruti Suzuki India Ltd. affirmed that a notice issued to a non-existent entity is a substantive illegality, not a procedural defect. The Court concluded that Section 292BB applies to an assessee and not to a legal representative, and cannot cure the defect of issuing a notice to a dead person. Issue 3: Compliance with amended procedures post-01.04.2021The Court noted that the notice was issued to the legal heir of the deceased without following the amended procedures effective from 01.04.2021. The impugned order was also passed in the name of the deceased, making it a nullity. The Court held that the provisions of Sections 292B and 292BB do not apply in such cases where the notice and order are issued in the name of a deceased person. Consequently, the proceedings initiated against the deceased and the impugned orders were quashed and set aside. Conclusion:The petition was allowed, and the impugned order u/s 148(d) dated 30.7.2022 and the impugned notice of even date were quashed and set aside. Rule was made absolute with no order as to costs.
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