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TMI Blog2024 (8) TMI 367X X X X Extracts X X X X X X X X Extracts X X X X ..... e extent to which the ultimate liability is liable to be liquidated. This reinforces the requirement of a notice being formally issued to the legal representative of the deceased assessee. We are, however, in this particular batch faced with a situation where the respondents neither adopted any corrective measures nor did they consciously take a decision to invoke the aforenoted statutory provision to continue proceedings against the legal representatives. The impugned action appears to have been mechanically continued in ignorance of the salutary provisions which stand embodied in Section 159. Reopening notice against deceased assessee setaside - We, however, accord liberty to the Revenue to proceed further and against the legal heirs of the assessees, if otherwise permissible in law. - HON'BLE MR. JUSTICE YASHWANT VARMA HON'BLE MR. JUSTICE RAVINDER DUDEJA For the Petitioner Through: Mrs. Prem Lata Bansal, Sr. Adv. with Mr. Shivang Bansal, Adv., Ms. Rano Jain, Adv., Mr. Kapil Goel, Adv., Mr. Anil Kumar Jain, Adv., Mr. Inder Paul Bansal, Mr. Vivek Bansal and Mr. Vishal Chechi, Advs., Mr. Mayank Nagi, Mrs. Husnal Syali Nagi and Mr. Tarun Singh, Advs., For the Respondent Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that while dealing with an identical challenge, we had in Pradeep Jain vs. Income Tax Officer [2024 SCC OnLine Del 4722] noticed the legal position as enunciated by this Court in the following terms: - 14. We note the pertinent observations of this court in the case of Savita Kapila v. Asst. CIT [(2020) 426 ITR 502 (Delhi); 2020 SCC OnLine Del 2540.], wherein, while dealing with the identical question, it has been held that the prerequisite for issuing a notice in the name of the correct person and not in the name of a dead person is sine qua non for acquiring the jurisdiction and initiating the action under section 148 of the Act. The court while setting aside the notice issued under section 148 of the Act to a dead person held as follows (page 510 of 426 ITR): In the present case the notice dated March 31, 2019 under section 148 of the Act, 1961 was issued to the deceased-assessee after the date of his death (December 21, 2018) and thus inevitably the said notice could never have been served upon him. Consequently, the jurisdictional requirement under section 148 of the Act, 1961 of service of notice was not fulfilled in the present instance. In the opinion of this court the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qua the petitioner for the relevant assessment year is beyond the period prescribed and consequently, the proceedings against the petitioner are barred by limitation in accordance with section 149 (1) (b) of the Act, 1961 . As in the present case proceedings were not initiated/pending against the assessee when he was alive and after his death the legal representative did not step into the shoes of the deceased-assessee, section 159 of the Act, 1961 does not apply to the present case . This court is of the view that 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. After all, there may be cases where the legal representatives are estranged from the deceased-assessee or the deceased-assessee may have bequeathed his entire wealth to a charity. Consequently, whether permanent account number record was updated or not or whether the Department was made aware by the legal representatives or not is irrelevant. In Alamelu Veerappan [Alamelu Veerappan v. ITO, (2018) 12 ITR-OL 95 (Mad); 2018 SCC OnLine Mad 13593.] it has been held nothing has been placed before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court has relied on the decision in Spice Enfotainment . This court is of the opinion that issuance of notice upon a dead person and non-service of notice does not come under the ambit of mistake, defect or omission. Consequently, section 292B of the Act, 1961 does not apply to the present case. 15. The abovenoted settled position of law was also followed in the decision of this court in the case of Vikram Bhatnagar v. CIT [2022 SCC OnLine Del 3899.], wherein this court while dealing with the identical questions held as follows: 11. In the present case as admitted by the respondent the facts are admitted. The death of the assessee was duly communicated by his legal heirs (the petitioner herein). The Income-tax return also duly disclosed that the same has been filed by the legal representative. However, in ignorance of the said facts available on the record the scrutiny proceedings have been wrongly conducted in the name of the deceased assessee without bringing on record all his legal heirs as per the requirement of law. 12. In the present case, the jurisdictional notice under section 143 (2) of the Act was issued against the dead person and the assessment order has also been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) all the provisions 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 undischarged, 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 representative under this section shall, subject to the provisions of sub-section (4) and sub-section (5), be limited to the extent to which the estate is capable of meeting the liability. 5. As is manifest from the above, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered: - 12. In Maharaja of Patiala v. CIT [(1943) 11 ITR 202 (Bom)] , a decision rendered by the Bombay High Court, the facts were these: the late Maharaja of Patiala had income from property and business in British India. He died on 23-3-1938. On 23-11-1938, the Income Tax Officer, Bombay sent two notices under Sections 22 (2) and 38 of the Indian Income Tax Act, 1922 addressed to the Maharaja of Patiala requiring him to make a return of his income from all sources for the Assessment Years 1937-38 and 1938-39. They were served upon the successor Maharaja. Returns were filed, signed by the Foreign Minister of Patiala. The Income Tax Officer passed assessment orders describing the assessee as His Highness late Maharaja of Patiala . The succeeding Maharaja appealed against the assessment orders contending that inasmuch as the notices were sent in the name of Maharaja of Patiala and not to him as the legal representative of the Maharaja of Patiala, the assessments made were illegal. The contention was that the notices were really addressed to the late Maharaja, who was not alive when the said notices were issued and that they were wrongly served upon him. The argument was rejected by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere made in the assessment at the instance of the Maharaja. There is no doubt that the present Maharaja knew perfectly well that what was being assessed was the income of his predecessor. 13. To the same effect are the observations of Kania, J. in his separate but concurring opinion. The decision, one of the earliest on the subject, shows 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. 8. The submissions that were addressed on this score clearly fail to bear in mind the significant findings on facts which had come to be recorded by Beaumont, C.J. and who had taken note of the admitted position of the returns of the late Maharaja s income having been submitted by the Foreign Minister on its behalf and subsequent corrections also being made in the course of assessment at the instance of the succeeding Maharaja. Beaumont, C.J thereafter proceeded to pertinently observe that the present Maharaja was fully aware of the assessment proceedings and those pertaining to the income of his predecessor. It was in the aforesaid background that the Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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