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TMI Blog2019 (4) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... gjibhai Rajpara, father of the petitioner herein, who has expired on 12.6.2015. By the impugned notice, respondent seeks to reopen the assessment for the assessment year 2011-2012. 4.1) On 15.1.2018, Dy. Director of Incometax (Inv)1, Surat issued witness summons under section 131(1A) of the Act in the name of late Shri Kanubhai Nagjibhai Rajpara, father of the petitioner, to personally attend the office. Said notice was served upon the petitioner. The petitioner therefore, on 13.3.2018 furnished the death certificate of his late father Shri Kanubhai Nagjibhai Rajpara before the authority and submitted that he had expired on 12.6.2015, therefore, the notice is required to be withdrawn. 4.2) Thereafter, the impugned notice dated 28.3.2018 was issued in the name of late Shri Kanubhai Nagjibhai Rajpara. The petitioner also received a notice dated 16.7.2018 issued under section 142(1) of the Act, which was served upon the petitioner on 17.7.2018. The petitioner therefore filed reply dated 18.7.2018 and submitted that his father late Shri Kanubhai Nagjibhai Rajpara has expired on 12.6.2015. A copy of the death certificate was also annexed with the said reply. The petitioner also cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction to issue notice under section 148 of the Act. 5. Learned advocate Shri Bandish Soparkar for the petitioner submitted that the issue is no more resintegra inasmuch as this Hon'ble Court has on more than one occasion considered this issue and held that the notice under section 148 of the Act against a dead person is nullity and without jurisdiction and no proceedings can be continued pursuant to such notice. He relied upon the decision of this court in case of Chandreshbhai Jayantibhai Patel v/s. The Income Tax Officer (judgement dated in Special Civil Application No.15172/2018) and decision in case of Rasid Lala v. Incometax officer, Ward1( 3)(6) reported in (2017) 77 taxmann.com 39(Gujarat). He also relied upon the decision of Madras High Court in case of Alamelu Veerapan v. the Income Tax Officer, Non Corporate Ward 2(2), Chennai (order dated 7.6.2018 in Writ Petition No.30060/2017). Relying upon the judgment in case of Chandreshbhai Jayantibhai Patel (supra), he contended that this Court have dealt in detail with regard to the issue of notice under section 148 of the Act against a dead person after analysing the provisions of section 2(7), 2(29) read with section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or according to the intent and purposes of the Act. In this regard, it may be noted that a notice under section 148 of the Act is a jurisdictional notice, and existence of a valid notice under section 148 is a condition precedent for exercise of jurisdiction by the Assessing Officer to assess or reassess under section 147 of the Act. The want of a valid notice affects the jurisdiction of the Assessing Officer to proceed with the assessment and thus, affects the validity of the proceedings for assessment or reassessment. A notice issued under section 148 of the Act against a dead person is invalid, unless the legal representative submits to the jurisdiction of the Assessing Officer without raising any objection. Therefore, where the legal representative does not waive his right to a notice under section 148 of the Act, it cannot be said that the notice issued against the dead person is in conformity with or according to the intent and purpose of the Act which requires issuance of notice to the assessee, whereupon the Assessing Officer assumes jurisdiction under section 147 of the Act and consequently, the provisions of section 292B of the Act would not be attracted. In the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxpayer was alive. Moreover, he relied on provisions of section 159 of the Act to contend that unless information of deceased taxpayer has been provided and uploaded by the legal representatives, no action can be taken against the legal representatives and no notice can be issued against the legal representatives and, therefore, impugned notice under section 148 of the Act is validated pursuant to provisions of section 292B of the Act. It was submitted that mentioning the name of the deceased person in the notice is nothing but can only be said to be a mistake or omission and, therefore, such notice is a valid notice under section 148 of the Act and the proceedings pursuant to such notice are valid proceedings. 7. In the present case, the assesseepetitioner has at first point of time objected to the issuance of notice under section 148 of the Act and has not participated or filed any return pursuant to notice. Therefore, legal representatives not having waived requirement of notice under section 148 of the Act and not having submitted to the jurisdiction of the Assessing Officer pursuant to impugned notice, provisions of section 292A of the Act also would not be attracted and he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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