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TMI Blog1967 (9) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... h of Bhimsen Sachdeva, he had retired from the partnership and the partnership business therafter was carried on by the petitioners alone. They hold a registration certificate as a "dealer" under the Madhya Pradesh General Sales Tax Act, 1958, and they have been assessed for the business carried on by them. 3.. It appears that a notice was issued by the first respondent in Form XVI prescribed under the M.P. General Sales Tax Act, 1958 (hereinafter referred to as "the Act") in the name of Bhimsen Sachdeva, an unregistered dealer, calling upon him to show cause why he should not be assessed to the best of judgment for the period from Ist April, 1959 to 31st March, 1965, he having failed to apply for registration, and why a penalty under section 18(6) should not be imposed on him. Bhimsen Sachdeva had died before the notice was issued, and hence it appears that the service was effected on the petitioners, who are his sons. On 30th September, 1965, the petitioners submitted an application protesting against the service of the notice on them. They also brought to the notice of the Sales Tax Authorities that Bhimsen Sachdeva had expired on 4th April, 1965, and that they could not be as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the notice as well the order as also from the demand notice (annexure E), which is again in the name of Bhimsen Sachdeva, it is clear that the proceedings were not initiated nor any order was passed nor any demand was raised against the petitioners in their capacity as legal representatives of Bhimsen Sachdeva. Shri Dabir, learned counsel for the petitioners, therefore, submitted that the assessment order made against a dead person was, on the face of it, void and was liable to be quashed. He also urged that inasmuch as the order was not against the petitioners, they had no right to prefer an appeal against that order. He urged that though the demand notice was issued against Messrs Bhimsen Sachdeva, the petitioners were apprehensive that coercive action would be taken against them. It is for this reason that they were forced to file this petition seeking the quashing of the order and restraining the respondents from making recovery as per the demand notice. 6.. Section 33-B of the Act provides that where a dealer dies, his executor, administrator, or other legal representative shall be deemed to be the dealer for the purposes of the Act and that the provisions of the Act sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business, but the distinction is quite apparent that they are an 'association of persons' and it is not the case of the department that the notice which was addressed to Shri Shakir Hussain was sent to this association of persons. The wording of the notice as well as the letters which have been written by the department on subsequent occasions clearly show that, in so far as the department was concerned, it was dealing with Shakir Hussain who, they knew, was dead. In our opinion, the notice was defective. As such a notice is a condition precedent for action under section 34 of the Incometax Act, the assessment cannot be made." In this view of the matter, the Income-tax officer was prohibited from making an assessment on the strength of the notice and an appropriate writ was issued. In the present case also, though the first respondent was aware of the death of Bhimsen Sachdeva, the notice was issued in his name. Though the petitioners had protested against the continuance of the proceedings, the first respondent continued the proceedings on the ground that a notice was served on the petitioners, though no such notice has been exhibited before us. The assessment order is also aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed against the assessment, and if the assessment was an assessment on a dead man, it was obviously a nullity, and there is nothing to appeal from. On the whole, though I certainly do not wish to give any countenance to the idea that the provisions of section 24B need not be strictly complied with, in the particular facts of this case, and having record to the fact also that the question is merely of academic interest, having regard to the answer to the second question, I am prepared to say that the assessment, though not strictly made in accordance with the provisions of section 24B, is in the circumstances valid so far as that section is concerned." On the basis of this observation, it was urged that the petitioners knew that they were being assessed for the business of their father. They had participated in the assessment proceedings and hence, though no proper notice was issued to them, and even though the order was passed in the name of their deceased father, it was not open to them to question it and that the order was binding on them. It may be pointed out that the Bombay decision is not of any help to the department. In that case, the successor Maharaja had actually fil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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