9911796707
TMI Blog2019 (4) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner herein is an individual. The assessee Shri Brijeshkumar Parsottambhai Ukani, that is, the petitioner's husband, passed away on 23.01.2011. For assessment year 2010-11, the return of income was filed on 31.03.2011 declaring total income of Rs. 33,51,908/, which was signed by the petitioner Smt. Hetal Brijeshkumar Ukani. 5. The assessee's assessment for assessment year 2008-09 came to be reopened by issuing a notice dated 30.03.2015 to the petitioner Smt. Hetal Brijeshkumar Ukani, under section 148 of the Act, which culminated into an order dated 08.03.2016 under section 143(3) read with section 147 of the Act which was passed in the name of the petitioner, namely, Smt. Hetal Brijeshkumar Ukani, legal heir of Shri Brijeshkumar Parsottambhai Ukani. 6. Subsequently, after a period of more than four years from the end of assessment year 2011-12, the respondent issued the impugned notice dated 29.03.2018 to the assessee Shri Brijeshkumar Parsottambhai Ukani under section 148 of the Act seeking to reopen his assessment for that assessment year. It appears that such notice was not served upon the petitioner. Subsequently, a notice dated 10.09.2018 came to be issued to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was submitted that the impugned notice under section 148 of the Act, having been issued to a dead person, is no notice in the eyes of law and hence, the same is required to be quashed and set aside. 8.2 In support of her submissions, learned advocate placed reliance upon an unreported decision dated 10.12.2018 of this court in the case of Chandreshbhai Jayantibhai Patel v. The Income Tax Officer rendered in Special Civil Application No.15172 of 2018 for the proposition that the notice under section 148 of the Act being a jurisdictional notice, if such notice is issued to a dead person it is invalid. 9. Opposing the petition, Ms. Kalpana Raval, learned Senior Standing Counsel, placed reliance upon the averments made in the affidavitinreply filed on behalf of the respondent. It was submitted that before issuance of the notice under section 148 of the Act, notice under section 133(6) of the Act had been issued on 07.03.2018 after getting the approval of the Principal Commissioner of Income Tax, Surat requesting the assessee to furnish the details mentioned therein. However, there was no response thereto. It was submitted that the petitioner has not complied with the notice issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ri Brijeshkumar Parsottambhai Ukani, passed away on 23.01.2011 and the Department had due notice about the same inasmuch as a notice under section 148 of the Act for assessment year 2008-09 was issued to the petitioner on 30.03.2015 in her capacity as legal heir of the deceased assessee. Moreover, the petitioner herein had filed the return of income for the assessment year 2010-11 as the legal heir of deceased Shri Brijeshkumar Parsottambhai Ukani. Despite the aforesaid position, for the assessment year under consideration, viz., 2011-12, the Assessing Officer issued the notice under section 148 of the Act in the name of the deceased assessee. Such notice was issued on 29.03.2018, when the period of limitation of six years was just about to expire. 11. It is the specific case of the petitioner that such notice was not served upon her. Subsequently, a notice dated 10.09.2018 came to be issued in the name of the deceased assessee calling upon him to file the return of income, in response to which, the petitioner raised objections dated 02.10.2018, which came to be disposed of by an order dated 03.10.2018. 12. It has been contended on behalf of the respondent that the petitioner had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) every person who is deemed to be an assessee in default under any provision of this Act; "Section 2(29) "legal representative" has the meaning assigned to it in clause (11) of section 2 of the Code of Civil Procedure, 1908;" "159. Legal representatives. (1) Where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. (2) 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).- (a) any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased; (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) all the provisions of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased; (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) all the provisions of the Act shall apply accordingly. 14. Thus, clause (a) of subsection (2) of section 159 of the Act provides for the eventuality where a proceeding has already been initiated against the deceased before his death, in which case such proceeding shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased. In the present case, the proceeding under section 147 of the Act had not been initiated against the deceased before his death, and hence, clause (a) would not be applicable in the facts of this case. 15. Clause (b) of subsection (2) of section 159 of the Act provides that any proceeding which could have been taken against the deceased if he had survived may be taken against the legal representative. The present case would, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout the death of the assessee and asked him to drop the proceedings, it cannot, by any stretch of imagination, be construed as the petitioner having participated in the proceedings. 17. Insofar as reliance placed upon section 292B of the Act is concerned, the said section, inter alia, provides that no notice issued in pursuance of any of the provisions of the Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such notice if such notice, summons is in substance and effect in conformity with or according to the intent and purpose of the Act. 18. The question that therefore arises for consideration is whether the notice under section 148 of the Act issued against the deceased assessee can be said to be in conformity with 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 Of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
