9911796707
TMI Blog2022 (5) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... er be granted in the interest of justice; e) To provide for the cost of this petition." 2. The brief facts, as emerges from the record, are as under: 2.1 The writ applicant is the Son of deceased Assessee namely late Shri Jagannath Rampal Kabra, who passed away of 07.07.2020. The father of the writ applicant was assessed as an individual however, the Notice under Section 148 of the Act addressed to the deceased- Jagannath Rampal Kabra for the A.Y. 2017-18 came to be issued on 31.03.2021. The writ applicant claims that in response to the aforesaid Notice, return of income was filed on 26.05.2021 declaring total income of Rs.14,45,710/-. Subsequently, the respondent authority had provided copy of reasons vide letter dated 11.11.2021 thereby seeking reopening of the assessment for the year under consideration. 2.2 The main reason cited by the Assessing Officer was based on information received whereby prima facie, the Assessing Officer had formed opinion that the deceased - Jagannath Rampal Kabra had claimed bogus accommodation entry for an amount of Rs.50,00,000/- and there was escapement of income for the assessment year under consideration. The writ applicant submitted objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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. 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 recompu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under any provision of the Act. Sub-section (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 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeding 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 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 acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 6. Mr. M.R. Bhatt, the learned Senior Counsel, has heavily placed reliance upon Section 292BB of the Act and has contended in the facts of the case, the writ applicant being the legal representative of the deceased - original assessee by submitting objections on merits, has participated in the proceedings and in view of the Section 292BB of the Act, the assessee cannot raise the objection that the impugned Notice is without jurisdiction. In our view, the aforesaid issue is squarely covered by the decision of the Supreme Court. 7. The Supreme Court in the case of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the proceedings, it shall be deemed that any Notice which is required to be served upon was duly served and the assessee would be thereafter precluded from taking any objections that the Notice was (a) not served upon him; (b) not served upon him in time or; (c) served upon him in an improper manner. It is therefore, clear that Section 292BB would be applicable as regards the infractions as detailed in sub section more particularly, with regard to mode of service of notice having certain infirmities to be considered by way of legal friction valid if , there was requisite participation on the part of the assessee. 9. At the outset we may observe that as per scheme of the Act the AO gets jurisdiction under the Act for assessment upon suo moto filing of return by the assessee or by issue of notice requiring him to file the return. In the present case, there is no scope/occasion for filing a voluntary return for escapement of income and the only provision under which return can be filed is on issue of a notice under Section 148. Indisputably, the assessment proceedings for escaped income were initiated by issue of notice under Section 148 of the Act and therefore the AO was vested w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
