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TMI Blog2022 (4) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... ased assessee, more particularly, in light of legal dictum laid down in the case of Chandrashbhai Jayantibhai Patel (Supra) is followed in the case of Bipinbhai Bachuji [ 2019 (7) TMI 754 - GUJARAT HIGH COURT] More particularly upon perusal of the contents of the objections cum reply filed by the writ applicant it transpires that the writ applicant has not surrendered to the jurisdiction of the Assessing Officer by submitting return in response to the impugned notices neither the jurisdictional Assessing Officer has issued notice upon writ applicant as legal representative representing estate of deceased assessee. Thus, we are of the view that the proceedings initiated by the Assessing Officer against the deceased assessee are not tenable in the eye of law and are required to be quashed and set aside. - Decided in favour of assessee. - R/SPECIAL CIVIL APPLICATION NO. 1523 OF 2022 - - - Dated:- 14-2-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE MS SHRUNJAL T SHAH FOR THE PETITIONER MR MR BHATT WITH MR KARAN SANGHANI FOR M R BHATT CO. FOR THE RESPONDENT JUDGMENT PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of the aforesaid fact being draw to the attention of the respondent authority, the Assessing Officer further issued notice under Section 142(1) of the Act dated 17.12.2021 again addressed to the deceased assessee. 3.6 In such circumstances, the writ applicant has approached this Court praying for quashment of the impugned notice dated 31.03.2021 issued under Section 148 of the Act and further proceedings initiated vide notice dated 17.12.2021 issued under Section 142 (1) of the Act as being bad in the eye of law. 4. We have heard Ms. Shrunjal T. Shah, the learned counsel appearing for the writ applicant as well as Mr. M.R. Bhatt, the learned senior counsel appearing for the Department. 5. Ms. Shah has specifically contended in the para 3.6 of the memo of the writ application as well as argued that the writ applicant upon receiving the impugned notices in the name of deceased has from first instance objected to the same and had requested the respondent to drop proceedings. The writ applicant has therefore, never participated in the proceedings in the present case. It is submitted that the writ applicant has not submitted to the jurisdiction of the respondent but has rath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel further invited the attention of the court to the provisions of section 292B of the Act, which inter alia provide that no notice, summons or other proceeding, issued or taken 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, summons or other proceeding if such notice, summons or other proceeding is, in substance and effect, in conformity with or according to the intent and purpose of the Act. It was submitted that in the light of the provisions of section 292B of the Act, the defect in the notice by issuing the same to a dead person would not render the notice invalid, inasmuch as it is a purely procedural lapse. 6.4 Reliance was placed upon the decision of the Delhi High Court in the case of Sky Light Hospitality LLP v. Assistant Commissioner of Income Tax, (2018) 405 ITR 296 (Delhi), wherein the court has held thus: 17. In the context of the present writ petition, the aforesaid ratio is a complete answer to the contention raised on validity of the notice under section 147/148 of the Act as it was addressed to the erstwhile company and not to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a v. Commissioner of Income Tax (Central), Bombay, (1943) 11 ITR 201, for the proposition that an assessment made without strictly complying with section 24-B (section 159 in the present Act) is not void or illegal and that any infractions in that behalf can be waived by the assessee. The court also placed reliance upon its earlier decision in Estate of Late Rangalal Jajodia v. Commissioner of Income Tax, Madras, (1971) 79 ITR 505, for the proposition that an omission to serve or any defect in the service of notices provided by procedural provisions does not efface or erase the liability to pay tax where such liability is created by distinct substantive provisions (charging sections). Any such omission or defect may render the order made irregular - depending upon the nature of the provision not complied with, but certainly not void or illegal. Following the said decisions, the court held that in the facts and circumstances of the case, the orders of assessment made by the Income Tax Officer without notice to all the legal representatives are not null and void in law, but are merely irregular/defective proceedings which can be set right by remitting the matters to the Income Tax Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his son and in his capacity as legal heir, requested him to drop the proceedings. Thereafter, another notice dated 10.07.2018 came to be issued under sub-section (1) of section 142 of the Act to Shri Jayantilal Harilal Patel calling upon him to furnish the details mentioned therein. In the annexure to the said notice, the assessee was called upon to show cause as to why penalty proceedings under section 217F of the Act should not be initiated in his case as he had not furnished return of income in response to the notice under section 148 and stating that this may be treated as a notice under section 142(1) read with section 129 of the Income Tax Act, 1961. 8. The petitioner addressed a letter dated 02.08.2018 to the Income Tax Officer objecting to the notices issued under section 148 as well as under section 142(1) of the Act and drew his attention to the earlier letter dated 27.04.2018 informing him about the death of his father and requesting him to drop the proceedings. The attention of the Income Tax Officer was further invited to the provisions of section 159 of the Act, to submit that the proceedings are required to be initiated against a legal representative and not a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer observed that in this case, the assessee (the petitioner) had introduced himself as a son of the deceased assessee and as legal heir and has produced death certificate in response to the notice issued under section 148 of the Act. Therefore, as the legal heir, upon being served with the notice under section 148, has participated in the proceedings, the reassessment proceedings initiated are legal and valid. Reliance has been placed upon the decision of the Madras High Court in the case of V. Ramanathan v. Commissioner of Income Tax, (1963) 49 ITR 881 (Madras). It is further stated therein that it is not in dispute that Shri Chandreshbhai J. Patel is the legal heir of the deceased assessee; therefore, the proceedings initiated against the legal representative/legal heir are valid and legal. 12. In the backdrop of the aforesaid facts, it is an admitted position that the notice under section 148 of the Act was issued to a dead person. The petitioner being the heir and legal representative of the deceased, upon receipt of the notice, immediately raised objection against the validity of the impugned notice and did not submit to the jurisdiction of the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of this Act shall apply accordingly. (3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. (4) Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains undercharged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value of the asset so charged, disposed of, or parted with. (5) The provisions of sub-section (2) of section 161, section 162 and section 167, shall, so far as may be and to the extent to which they are not inconsistent with the provisions of this section, apply in relation to a legal representative. (6) The liability of a legal representative under this section shall, subject to the provisions of sub-section (4) and subsection (5), be limited to the extent to which the estate is capable of meeting the liability. 292B. Return of income, etc., not to be invalid on certain grounds. - No return of income, assessment, notice, summons or other pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the legal representative. The present case would, therefore, fall within the ambit of section 159(2)(b) of the Act and, hence, the proceeding can be taken against the legal representative. Now, it cannot be gainsaid that a proceeding under section 147 of the Act of reopening the assessment is initiated by issuance of notice under section 148 of the Act, and as a necessary corollary, therefore, for taking a proceeding under that section against the legal representative, necessary notice under section 148 of the Act would be required to be issued to him. In the present case, the impugned notice under section 148 of the Act has been issued against the deceased assessee. In the opinion of this court, since this is not a case falling under clause (a) of subsection (2) of section 159 of the Act, the proceeding pursuant to the notice under section 148 of the Act issued to the dead person, cannot be continued against the legal representative. 16. On behalf of the revenue, it has been contended that issuance of the notice to the dead assessee is merely a technical defect which could be corrected under section 292B of the Act. Reliance has been placed on the above referred decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant 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 of this court, the decision of this court in the case of Rasid Lala v. Income Tax Officer, Ward-1(3)(6) (supra) would be squarely applicable to the facts of the present case . Therefore, in view of the provisions of section 159(2)(b) of the Act, it is permissible for the Assessing Officer to issue a fresh notice under section 148 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mann.com 404 (Gujarat). 8. Considering the record of the case, we further find the argument as may be available to the Revenue as regards the irregularity in issuance of the notice against the deceased assessee is also taken care of by this Court in the case of Chandreshbhai Patel (Supra), more particularly, the relevant observations made by this Court in paras 17 and 18 as well as Section 292B of the Act. 9. In the peculiar facts and circumstance as emerged from the records, more particularly upon perusal of the contents of the objections cum reply filed by the writ applicant dated 10.04.2021 ( page no.13 ) and 15.12.2021 ( page no. 14), it transpires that the writ applicant has not surrendered to the jurisdiction of the Assessing Officer by submitting return in response to the impugned notices neither the jurisdictional Assessing Officer has issued notice upon writ applicant as legal representative representing estate of deceased assessee. Thus, we are of the view that the proceedings initiated by the Assessing Officer against the deceased assessee are not tenable in the eye of law and are required to be quashed and set aside. In the result, the impugned notices are inv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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