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TMI Blog2020 (7) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... son of Section 292BB, she would have been precluded from saying that no notice was factually served upon her. When the notice was issued in her name- when she was no longer of this world, it is inconceivable that she could have participated in the reassessment proceedings, (nor is that the revenue's case) to be estopped from contending that she did not receive it. The plain language of Section 292BB, in our opinion precludes its application, contrary to the revenue's argument. Consequently, the applicability of Section 292BB of the Act, 1961 has been held to be attracted to an assessee and not to legal representatives. - Decided in favour of assessee. - W.P.(C) 3258/2020 - - - Dated:- 16-7-2020 - HON'BLE MR. JUSTICE MANMOHAN AND HON'BLE MR. JUSTICE SANJEEV NARULA Petitioner Through: Mr. Siddharth Ranka and Mr. Mishal Johri, Advocates Respondent Through: Mr. Zoheb Hossain, Sr. Standing Counsel for respondent. J U D G M E N T MANMOHAN, J: 1. Present writ petition had been filed seeking a direction to the respondent to quash the notice dated 31st March, 2019 issued to the deceased-assessee (father of the petitioner) under Section 148 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e address of Dwarka was mentioned in the KYC and further from the documents made available by the banks a telephone number was traced and the phone call was made to the present Petitioner i.e., Savita Kapila who for the first time informed that she is the daughter of the Assessee and that the Assessee had passed away on 21st December, 2018. Admittedly, for the first time the death certificate confirming the above was uploaded by the Petitioner on the E-Portal of the Income Tax Department on 15th October, 2019. 7. Assessing Officer passed an order dated 21st November, 2019, whereby penalty u/s. 271(1)(b) of the Act, 1961 was imposed upon deceased-assessee through legal heir for non-compliance of notices issued to the deceased assessee. 8. A final show-cause notice dated 25th November, 2019 was issued to the Assessee, through legal heir, directing to file the return and produce relevant documents by 28th November, 2019, failing which the AO shall pass the assessment order under Section 144 of the Act. 9. Proceedings were transferred to PAN (AWZPK7699E) of one of the legal heir of the deceased assessee-Ms. Savita Kapila [Petitioner] on 27th December, 2019 and on the same date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61. 13. Learned counsel for the petitioner emphasized that Section 159 of the Act would not apply to the facts of the present case inasmuch as the said provision would be applicable in those situations wherein the proceedings had been initiated/pending against an assessee when he/she was alive and after their death their legal representatives had stepped into their shoes. In support of his submission, he relied upon the judgment of this Court in Vipin Walia v. ITO 2016 (2) TMI 524 (Delhi). ARGUMENTS ON BEHALF OF THE RESPONDENT 14. Per contra, Mr. Zoheb Hussain, learned senior standing counsel for the respondent submitted that the present writ petition ought not to be entertained as it had been preferred after the completion of assessment proceedings and in accordance with the statutory provisions as well as settled law, the petitioner should be directed to agitate the issues raised herein before the Appellate Commissioner under Section 246A of the Act, 1961. 15. Learned senior standing counsel for the respondent submitted that under Section 159 of the Act, 1961 the legal representative is liable for the liabilities of the deceased-assessee and therefore it can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue had acted bona fide at the time of issuance of notice under Section 148 of the Act as it had no knowledge of the death of the assessee. He relied upon the judgment of this Court in Skylight Hospitality LLP v. Assistant Commissioner of Income Tax, Circle-28(1), New Delhi, (2018) 405 ITR 296 (Delhi) to submit that even if there was any defect in the notice, it would be a bona fide curable defect under Section 292B of the Act, 1961. 20. He further submitted that the proviso to Section 292BB of the Act would be attracted to the present case and the petitioner would be prevented from questioning the validity of the notice since she had co-operated in any inquiry relating to.....reassessment by uploading the death certificate of the deceased-assessee. REJOINDER ARGUMENTS ON BEHALF OF THE PETITIONER 21. In rejoinder, learned counsel for the petitioner laid emphasis upon the fact that there was no statutory obligation upon the legal heirs to intimate the death of the assessee to the respondent. He submitted that the assessing officer had no jurisdiction to initiate the re-assessment proceedings and the passing of subsequent orders would not render the jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting without jurisdiction. Where such action of an executive authority acting without jurisdiction subjects or is likely to subject a person to lengthy proceedings and unnecessary harassment, the High Courts, it is well settled, will issue appropriate orders or directions to prevent such consequences. 28. Mr Sastri mentioned more than once the fact that the Company would have sufficient opportunity to raise this question viz. whether the Income Tax Officer had reason to believe that underassessment had resulted from non-disclosure of material facts, before the Income Tax Officer himself in the assessment proceedings and if unsuccessful there before the appellate officer or the Appellate Tribunal or in the High Court under Section 66(2) of the Indian Income Tax Act. The existence of such alternative remedy is not however always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action. 29. In the present case the Company contends that the conditions pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer to assess or reassess under Section 147 of the Act. The want of 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. Consequently, in view of the above, a reopening notice under Section 148 of the Act, 1961 issued in the name of a deceased assessee is null and void. ALSO, NO NOTICE UNDER SECTION 148 OF THE ACT, 1961 WAS EVER ISSUED UPON THE PETITIONER DURING THE PERIOD OF LIMITATION. CONSEQUENTLY, THE PROCEEDINGS AGAINST THE PETITIONER ARE BARRED BY LIMITATION AS PER SECTION 149(1)(b) OF THE ACT, 1961. 28. Also, no notice under Section 148 of the Act, 1961 was ever issued to the petitioner during the period of limitation and simply proceedings were transferred to the PAN of the petitioner, who happens to be one of the four legal heirs of the deceased assessee vide letter dated 27th December, 2019. Therefore, the assumption of jurisdiction qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SEE. 32. This Court is of the view that in the absence of a statutory provision it is difficult to cast a duty upon the legal representatives to intimate the factum of death of an assessee to the income tax department. After all, there may be cases where the legal representatives are estranged from the deceased assessee or the deceased assessee may have bequeathed his entire wealth to a charity. Consequently, whether PAN record was updated or not or whether the Department was made aware by the legal representatives or not is irrelevant. In Alamelu Veerappan (supra) it has been held nothing has been placed before this Court by the Revenue to show that there is a statutory obligation on the part of the legal representatives of the deceased assessee to immediately intimate the death of the assessee or take steps to cancel the PAN registration. 33. The judgment in Pr. Commissioner of Income Tax v. Maruti Suzuki India Limited (supra) offers no assistance to the respondents. In Pr. Commissioner of Income Tax v. Maruti Suzuki India Limited (supra) the Supreme Court was dealing with Section 170 of the Act, 1961 (succession to business otherwise than on death) wherein not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued to Skylight Hospitality Pvt. Ltd. instead of Skylight Hospitality LLP. In that factual context, this Court had observed, Noticeably, the appellant having received the said notice, had filed without prejudice reply/letter dated April 11, 2017. They had objected to the notice being issued in the name of the company, which had ceased to exist. However, the reading of the said letter indicates that they had understood and were aware, that the notice was for them. It was relied and dealt with by them. The Supreme Court while dismissing the SLP had also observed In the peculiar facts of this case, we are convinced that wrong name given in the notice was merely a clerical error which could be corrected under Section 292B of the Income Tax Act. 37. In any event, Section 292B of the Act, 1961 has been held to be inapplicable viz-a-viz notice issued to a dead person in Rajender Kumar Sehgal (supra), Chandreshbhai Jayantibhai Patel (supra) and Alamelu Veerappan (supra). In all the aforesaid cases, the judgment of Skylight Hospitality (supra) had been cited by the revenue. IN RAJENDER KUMAR SEHGAL (SUPRA) A COORDINATE BENCH OF THIS COURT HAS HELD THAT SECTION 292 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee and not to legal representatives. CONCLUSION 41. To conclude, the arguments advanced by the respondent are no longer res integra and have been consistently rejected by different High Courts including this jurisdictional Court. In view of consistent, uniform and settled position of law, to accept the submissions of the respondent would amount to unsettling the settled law . In fact, in Pr. Commissioner of Income Tax v. Maruti Suzuki India Limited (supra), the Supreme Court speaking through Hon ble (Dr.) Justice Dhananjaya Y. Chandrachud has succinctly observed as under:- 40. We find no reason to take a different view. There is a value which the court must abide by in promoting the interest of certainty in tax litigation. The view which has been taken by this Court in relation to the respondent for AY 2011-12 must, in our view be adopted in respect of the present appeal which relates to AY 2012-13. Not doing so will only result in uncertainty and displacement of settled expectations. There is a significant value which must attach to observing the requirement of consistency and certainty. Individual affairs are conducted and business decisions are made i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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