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TMI Blog2019 (7) TMI 754X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 For the foregoing reasons, the writ application succeeds and is accordingly allowed. - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 7850 of 2019 - - - Dated:- 9-7-2019 - MR J. B. PARDIWALA AND MR A. C. RAO, JJ. For The Petitioner (s) : MR SN DIVATIA (1378) For The Respondent (s) : MRS MAUNA M BHATT (174) ORAL ORDER ( PER : HONOURABLE MR.JUSTICE A.C. RAO) 1.00. Rule returnable forthwith. Ms.Mauna Bhatt, the learned senior standing counsel waives service of notice of rule for and on behalf of the Respondent. 2.00. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following main reliefs : ( a). Issue a writ of certiorari or in nature of certiorari or any other appropriate writ, orders or direction quashing and setting aside the impugned notice dated 26.03.2019 [ANNEXURE-A] issued by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e , let there be an interim order in terms of para 10.0(e) . 4.00. In response to the notice issued by this Court, Ms. Mauna Bhatt, the learned senior standing counsel has appeared on behalf of the Revenue. 5.00. The issue raised in this writ application is very limited and no longer res integra . It appears that the writ applicant is the son of late Late Bachubhai Rambhai Kataria. Late Bachubhai Rambhai Kataria was assessed in the office of the Income Tax Officer, Rajkot. It is the case of the Revenue that late Bachubhai Rambhai Kataria sold land bearing Revenue Survey No.65/1 situated at village Lamdhar, Taluka Una, District Junagadh admeasuring about 36,725 sq.mtrs. For ₹ 23,87,127 by executing a registered sale deed on dated 2/3/2012, however, the late Bachubhai Rambhai Kataria had not filed his return of income under Section 139 for the Assessment Year 2012-13 and had not declared his total income. In such circumstances, the department issued a notice dated 05/02/2014 with respect to sale of the aforesaid land in the name of late Bachubhai Rambhai Kataria. The petitioner replied to the said notice vide reply dated 11/02/2014 stating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the proposition that death of the person liable to render an account for property received by him does not affect the liability of his estate. It was submitted that therefore, even after his death, deceased Jayantibhai does not cease to be an assessee and consequently, the legal representative is responsible for filing the return of income and answering to the notice. It was submitted that the Madras High Court in the case of Alamelu Veerappan v. Income Tax Officer, Noncorporate Ward- 2(2), Chennai (supra), on which reliance has been placed on behalf of the petitioner, does not refer to section 292B of the Act and, therefore, the said decision would be not applicable to the facts of the present case. It was submitted that in this case, the petitioner had knowledge of the proceedings and has responded to the same as legal representative of the deceased and, therefore, the procedural defect which is otherwise curable may be permitted to be cured. 6.2. Reference was made to section 2(29) of the Act, which says that legal representative has the meaning assigned to it in clause (11) of section 2 of the Code of Civil Procedure, 1908. 6.3. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 92B of the Act. 6.6. Reliance was also placed upon the decision of the Supreme Court in the case of Commissioner of Income Tax, Shillong v. Jai Prakash Singh, [1996] 219 ITR 737, wherein the assessee did not file returns for three assessment years and died in April 1967, leaving behind him, in all, ten legal heirs. The eldest son Jai Prakash Singh filed the returns for the three assessment years. Such returns were signed by him alone and not by the other legal representatives. Scrutiny assessment came to be carried out by the Income Tax Officer, during the course of which, notices under section 142(1) of the Act came to be issued to Jai Prakash to appear and produce documents, accounts and other material, who complied with the same and did not raise any objection that notices must be issued to the other legal representatives of the deceased. Assessment orders were made in the name of all the ten legal representatives who were described as legal representatives of the deceased. Appeals were filed by Jai Prakash contending that the assessments were illegal and invalid as no notice had been issued to all the legal representatives of deceased. The court placed relianc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abandoning the technical plea that the proceeding has not been continued against him, although in substance and reality, it has been so continued. 6.8. The learned counsel submitted that issuance of notice in the name of the deceased being a procedural defect, can be cured under section 292B of the Act and that on account of such technical defect, the notice is not void. Moreover, the petitioner having responded to the notice under section 148 of the Act, the Assessing Officer is justified in continuing the proceedings against him. It was, accordingly, urged that the petition being devoid of merits, deserve to be dismissed. 7. In the backdrop of the rival submissions, the facts as emerging from the record of the case may be adverted to. The impugned notice dated 28.03.2018 is issued to Shri Jayantilal Harilal Patel, father of the petitioner, seeking to reopen the assessment for assessment year 2011-12 under section 148 of the Income Tax Act, 1961. By a letter dated 27.04.2018 addressed to the Income Tax Officer, the petitioner informed him that his father Shri Jayantilal Harilal Patel has passed away on 24.06.2015, enclosing therewith a death ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e death of the assessee. It is only when the legal heir Shri Chandreshbhai Jayantilal Patel (the petitioner herein) filed a letter dated 27.04.2018 along with a copy of the assessee s death certificate, that this fact came to the notice of that office. It is stated that since the assessee s son legal heir had received the notice (stated to have been received through the neighbour) and participated in the proceedings; the defect in issue of the notice is automatically cured. Reliance was placed upon the decision of the Madhya Pradesh High Court in the case of Kausalyabai v. Commissioner of Income Tax, 238 ITR 1008 (MP), wherein after the death of the assessee, the notice was issued in the name of a person who was dead. The court observed that the widow of such person participated in the assessment proceedings and hence, the defect in the notice stood automatically cured. It is further stated in the order disposing of the objections that even if the notice dated 28.03.2018 is issued defectively in the name of the deceased assessee, then also, as per the provisions of section 292B of the Act, the same cannot be held to be invalid. 11. Insofar as the contention rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section (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 the Act shall apply accordingly. 14. Thus, clause (a) of sub-section (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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