9911796707
TMI Blog2023 (6) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... e 226 of the Constitution, the petitioner has prayed to set aside notice dated 26.3.2021 issued by the respondent proposing to reopen the completed assessment in respect of Assessment Year 2016-2017. Other related prayers are also made. 3. Impugned notice dated 26.3.2021 under section 148 of the Income Tax Act, 1961 for the Assessment Year 2016-2017 came to be issued to one Ravji Harji Rabadia. The petitioner Laxmiben Ravji Rabadia is legal heir of the late Ravji Harji Rabadia. The said Ravji Harji Rabadia Died on 10.4.2017. He was regularly assessed to tax under the Permanent Account Number. He did not file return of income in respect of the year under consideration. As the notice was issued to person who was dead, the petitioner informed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nless the heir has participated in the proceedings or submitted to the jurisdiction to the Assessing Officer taking certain positive steps, is no longer res integra. 6.1 Similar issue came up for consideration before the court in Mitesh Goradhandas Somaiya vs. Income Tax Officer Ward 6(1)(1) being Special Civil Application No. 5870 of 2022, in which the court relied on the decision of the Divsiion Bench of this court. The reasons recorded and conclusion arrived at in Mitesh Goradhandas Somaiya (supra), squarely apply to the facts of this case. 6.2 The following observations are the reproduction from order dated 1.8.2022 in Mitesh Goradhandas Somaiya (supra), which would apply to the case present case and the same reasons and conclusion sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Jadeja (supra), while the revenue raised various contentions seeking a proposition that the proceedings against the dead assessee would be maintained, the Court negatived them all. 5.3 One of the contention was based on Section 292B of the Act. The said provision contemplates that the notice shall be deemed to be valid in certain circumstances. It mentions that where an assessee has appeared in any proceedings or cooperated in any inquiry relating to assessment or re-assessment, it shall be deemed that a notice required to be served under the Act has been duly served upon him. Such, it is provided, shall be precluded by taking any objection about the service of the service of the notice and manner of the service. 5.4 The Division Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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." 5.5 Thus, the law is well settled that unless the heirs and legal representatives of the deceased assessee could be said to have been submitted to the jurisdiction of the assessing officer and have participated in the assessment or re-assessment proceedings, notice to the dead ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proceedings to persuade the court to hold otherwise. On the contrary, communication dated 16.2.2022 was sent to the Income Tax officer by the legal representative that the noticee Goradhandas Madhavji Somaiya had died. 6. In view of the above, the present petition deserves to be allowed. It is hereby allowed by holding that the impugned notice, which was against the dead assessee, could not be sustained. Resultantly, the notice dated 30.3.2021 received in the name of Goradhandas Madhavji Somaiya, as a dead person, by the Income Tax department is held to be illegal." 7. Resultantly, the notice dated 26.03.2021 issued by the Income Tax authorities is set aside. The Income Tax authorities shall not proceed against the said deceased asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
