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TMI Blog2019 (4) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... (s) : MRS KALPANAK RAVAL (1046) ORAL JUDGMENT ( PER : HONOURABLE MS.JUSTICE HARSHA DEVANI) 1. Rule. Ms. Kalpana Raval, learned Senior Standing Counsel, waives service of rule on behalf of the respondent. 2. Having regard to the controversy involved in the present case, which lies in a very narrow compass and with the consent of learned advocates for the respective parties, the matter was taken up for final hearing today. 3. By this petition under article 226 of the Constitution of India, the petitioner has challenged the notice dated 29.03.2018 issued by the respondent under section 148 of the Incometax Act, 1961 (hereinafter referred to as the Act ) whereby, he seeks to reopen the assessment of the assessee Shri Brijeshkumar Parsottambhai Ukani for assessment year 2011-12. 4. The facts stated briefly are that the 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 ₹ 33,51,908/, which was signed by the petitioner Smt. Hetal Brijeshkumar Ukani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g recorded by the Assessing Officer is contrary to the record of the case, which clearly reveals that the notice under section 148 of the Act for reopening of the assessment for assessment year 2008-09 was issued in the name of the petitioner as legal heir of Shri Brijeshkumar Parsottambhai Ukani.It was submitted that therefore, the factum of death of the assessee was very well known to the Department. 8.1 It was submitted that in terms of clause (b) of subsection (2) of section 159 of the Act, any proceedings which could have been taken against the deceased if he had survived, could have been taken again the legal representative; however, in the present case, the respondent has initiated reassessment proceedings against the deceased person and not against his legal representative and hence, the initiation of reassessment proceedings itself is not tenable in law. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y which had been dissolved, was an error and technical lapse on the part of the respondent. No prejudice was caused. 9.2 It was submitted that the above decision of the Delhi High Court came to be challenged before the Supreme Court in Sky Light Hospitality LLP v. Assistant Commissioner of Income Tax , (2018) 92 Taxmann.com 93 (SC) , which dismissed the special leave petition holding that the wrong name given in the notice was merely a clerical error, which could be corrected under section 292B of the Act. 9.3 It was contended that in the light of the above decision, the notice under section 148 of the Act cannot be said to be invalid and that the petition, being devoid of merits, deserves to be dismissed. 10. This court has considered the submissions advanced by the learned advocates for the respective parties. As noted hereinabove, in the facts of the present case, the assessee Shri 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice to the heirs and legal representatives, insisted on continuing with the proceedings pursuant to the impugned notice which was issued in the name of a dead person. Since strong reliance has been placed by the learned counsel for the respondent on the provisions of section 2(7) and 2(29) read with sections 159 and 292B of the Act, reference may be made to the said provisions, which read as under:- Section 2(7) assessee means a person by whom any tax or any other sum of money is payable under this Act, and includes ( a) every person in respect of whom any proceeding under the Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person; ( b) every person who is deemed to be an assessee under any provision of this Act; ( 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act. 13. Thus, the expression assessee includes every person who is deemed to be an assessee under any provision of the Act. Subsection (3) of section 159 of the Act, postulates that the legal representative of the deceased shall, for the purposes of the Act, be deemed to be an assessee. Subsection (2) of section 159 of the Act says that 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 proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice and has objected to the validity of the notice and further continuation of the proceedings. In the opinion of this court, here lies the distinction between those cases and the present case. In the relied upon cases, the legal representative, in response to the impugned notice, filed return of income and participated in the proceeding and then raised an objection to the validity of the proceeding and, therefore, the court held that this was a case of waiver and that a technical defect can be waived; whereas in this case, right from the inception the petitioner has objected to the validity of the notice and thereafter to the continuation of the proceeding and has at no point of time participated in the proceeding by filing the income tax return in response to the notice issued under section 148 of the Act. Had the petitioner responded to the notice by filing return of income, he could have been said to have participated in the proceedings, however, merely because the petitioner has informed the Assessing Officer about 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. In the facts of the present case, as noticed hereinabove, the notice under section 148 of the Act, which is a jurisdictional notice, has been issued to a dead person. Upon receipt of such notice, the legal representative has raised an objection to the validity of such notice and has not complied with the same. The legal representative not having waived the requirement of notice under section 148 of the Act and not having submitted to the jurisdiction of the Assessing Officer pursuant to the impugned notice, the provisions of section 292B of the Act would not be attracted and hence, the notice under section 148 of the Act has to be treated as invalid. In the absence of a valid notice, the Assessing Officer has no authority to assume the jurisdiction under section 147 of the Act and, hence, continuation of the proceeding under section 147 of the Act pursuant to such invalid notice, is without authority of law. The impugned notice as well as the proceedings taken pursuant thereto, therefore, cannot be sustained. 14. In the opinion of this court, the above decision would be squarely applicable to the facts of the present case and as such, the impugned notice dated 29.03 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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