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TMI Blog2023 (11) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI AND HON'BLE SHRI JUSTICE PRANAY VERMA For the PETITIONER : SHRI ASHISH GOYAL, LEARNED COUNSEL For the RESPONDENT : MS VEENA MANDLIK, LEARNED COUNSEL ORDER Heard finally with the consent of parties. The present petition under Article 226 of the Constitution of India challenges the notice under Section 148A(b) of the Income Tax Act, 1961(referred to as 'the Act of 1961' hereinafter) for the assessment year 2019- 20 dated 27.03.2022 issued in case No. ITBA/AST/F/148A(SCN)/2022- 23/10514278(1) [Annexure P-3], as well as order u/S 148A(d) of the Act of 1961 dated 31.03.2022[Annexure P-5] for the assessment year 2019-20. 2. Brief facts of the case are that petitioner who was the legal heir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said document, the assessee paid Rs. 12,75,000/- in cash during the financial year 2018-19 relevant to the Assessment Year 2019-20 while purchasing the Unit No. B-304 in Rajyash Reeva Scheme. For verification of the above purchase the respondent has taken accord of the competent authority and issued show cause notice u/S 148A(b) of the Act of 1961. In response to the said show cause notice, the legal heir of the assessee has filed death certificate of the original assessee. The reply of the legal heir has been considered but not found to be acceptable and the entire payment of On-Money in cash amounting to Rs. 12,75,000/- is treated as undisclosed income of the assessee for the Assessment Year 2019-20 which is also chargeable to tax and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India reported in [2023]148 taxmann.com 202(Gujarat). 5. He further placed reliance on the case of J. Kishorekumar V. Income Tax Officer reported in [2022] 139 taxmann.com 47 (Madras) wherein it has been held as under: Where petitioner, legal representative challenged impugned notice issued under Section 148 on the ground that notice had been issued in name of his deceased father, revenue was to be directed to issue appropriate notice to petitioner under Section 148 of the Act of 1961 as a legal representative. 6. He also placed reliance on the case of Krishnaawtar Kabra Vs. Income Tax Officer reported in [2022] 140 taxmann.com 432(Gujarat) [29.03.2023] where it has been held that reopening notice u/S 148 issued upon deceased assessee was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner as legal heir of the deceased that too by reproducing the reply of show cause notice given by the petitioner. However, the same was issued in the name of deceased assessee. In the order passed u/S 148A(d), it has been categorically mentioned that payment of on money in case amounting to Rs. 12,75,000/- is treated as undisclosed income of the assessee for the Assessment Year 2019-20 and the same escaped assessment in the year 2019-20. Being the legal heir, he was not bound to put forth explanation since the original assessee has died before initiation of proceedings. The order was issued without application of mind and without giving any reasons. Hence, writ of certiorari/or a writ of mandamus or writ or direction be issued to quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, petitioner would be at liberty to avail the statutory remedy under the Income Tax Act in accordance with law. 11. We have heard learned counsel for the parties and perused the record. 12. The issue which falls for consideration of this Court is as to whether the impugned notice under Section 148 of the Act of 1961 is issued in the name of dead person i.e. Mr Kirankant Shah is enforceable in law. The fact that Mr. Kirankant Shah died on 05.04.2021 is not disputed. The notice issued in the name of the dead person is unenforceable in the eyes of law. 13. It has been observed by the Delhi High Court in the case of Savita Kapila Vs. Asstt. CIT reported in [2020] 118 taxmann.com 46/273 Taxman 148/426 IRT 502/108 CCH 0049 DelHC] as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... name of correct person is the foundational requirement to acquire jurisdiction to reopen the assessment. This is evident from Section 148 of the Act, which requires that before a proceeding can be taken up for reassessment, a notice must be served upon the assessee. The assessee on whom the notice must be sent must be a living person i.e. legal heir of the deceased assessee, for the same to be responded. This in fact is the intent and purpose of the Act. Therefore, Section 292B of the Act cannot be invoked to correct a foundational/substantial error as it is meant so as to meet the jurisdictional requirement. 16. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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