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TMI Blog2023 (11) TMI 1196X X X X Extracts X X X X X X X X Extracts X X X X ..... HON'BLE SHRI JUSTICE PRANAY VERMA FOR THE PETITIONER : BY SHRI ADITYA GOYAL, ADVOCATE FOR THE RESPONDENTS : BY MS VEENA MANDLIK, ADVOCATE FOR THE RESPONDENTS ORDER Heard finally with the consent of parties. The present petition under Article 226 of the Constitution of India challenges the notice under Section 148 of the Income Tax Act, 1961(referred to as 'the Act of 1961' hereinafter) for the assessment year 2018-19 dated 31.03.2022 passed in case No. ITBA/AST/S/148_12021-22/1042404876(1) [Annexure P-3] as well as order u/S 148A(d) of the Act of 1961 dated 31.03.2022[Annexure P-4] for the assessment year 2018-19. 2. Brief facts of the case are that petitioner who was the legal heir of the original assessee received a notice DIN NO. 1041169255(1) dated 21.03.2022 from the respondent no.1 under Section 148A(b) of the Act of 1961 seeking reopening of assessment of the assessee as income chargeable to tax for the Assessment Year 2018-19 has escaped assessment within the meaning of Section 147 of the Act of 1961 and the petitioner is required to show cause as to why a notice u/S 148 of the Act of 1961 should not be issued. The petitioner filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Chandreshbhai Jayantibhai Patel Vs. The Income Tax Officer reported in (2019) 413 ITR 276 wherein it has been held as under: 18. The question that therefore arises for consideration is whether the notice under section 148 of the Act issued against the deceased assessee can be said to be in conformity with or according to the intent and purposes of the Act. In this regard, it may be noted that a notice under section 148 of the Act is a jurisdictional notice, and existence of a valid notice under section 148 is a condition precedent for exercise of jurisdiction by the Assessing Officer to assess or reassess under section 147 of the Act. The want 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. 4. In view of the above, reopening notice under Section 148 of the Act, 1961 issued in the name of a dead assessee is null and void being without j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961, the same would be of no avail as the same applies only to a situation where proceedings are initiated/pending against the assessee when he/she is alive and after his/her death, proceedings are permitted to be continued as against the legal heirs. Learned counsel has placed reliance on the judgment passed by the Madras High Court in the case of Alamelu Veerappan Vs. The Income Tax Officer, Non Coporate Ward 2(2), Chennai reported in 2018 SCC Online Mad wherein it has been held as under: 18. In such circumstances, the question would be as to whether Section 159 of the Act would get attracted. The answer to this question would be in the negative, as the proceedings under Section 159 of the Act can be invoked only if the proceedings have already been initiated when the assessee was alive and was permitted for the proceedings to be continued as against the legal heirs. The factual position in the instant case being otherwise, the provisions of Section 159 of the Act have no application. 7. Moreover, the order issued under Section 148A(d) of the Act of 1961 only gives mere reference of the petitioner as legal heir of the deceased. However, the same was issued in the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. Mrs. Amita Lalwani is enforceable in law. The fact that Mrs. Amita Lalwani died on 07.07.2021 is not disputed. The notice issued in the name of the dead person is unenforceable in the eyes of law. 12. It has been observed by the Delhi High Court in the case of Savita Kapila Vs. Asstt. CIT reported in [2020]118taxmann.com46/273 Taxman 148/426 IRT 502/108 CCH 0049 DelHC] as under: 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. Consequently, the legal heirs are under no statutory obligation to intimate the death of the assessee to the revenue. 13. The Madras High Court in the case of Alamelu Verappan(supra) has observed as under: 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 to take steps to cancel the PAN registration. 14. Similar view has been taken by the High Court of Mumbai in Sumit Balkrishna Gupta Vs. Asstt. CIT[2019] 103 taxmann.com 188/262 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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