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TMI Blog2024 (10) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee. Sub-section (2) of section 159 of the Act says that for the purpose of making an assessment (including an assessment, reassessment or re-computation 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). 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 proceeding 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. In the present case, the proceeding under section 147 of the Act had not been initiated against the deceased before his death, and hence, clause (a) would not be applicable in the facts of this case. In the present case, the impugned notice under section 148 of the Act has been issued against the deceased assessee. In the opinion of this court, since this is not a case falling under clause (a) of subsection (2) of section 159 of the Act, the proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mandamus or any other appropriate writ, order or direction in the nature of mandamus, quashing and setting aside the notices issued by the Income Tax Department on the address of the petitioner. C. This Hon ble Court be pleased to direct the Income Tax Department not to issue demand notices in future on the address of the petitioner. 5. Brief facts of the case are that the petitioner is grandson of late Karsanbhai Gagajibhai Padashala who expired on 13.03.2019. 6. Petitioner is residing at Una, District:- Gir Somnath whereas his grandfather Late Karsanbhai was residing at Village:- Khilavad, Tal. Gir-Gadhada, Dist. Gir-Somnath. 7. The respondent-Assessing Officer issued a notice under section 148 of the Income Tax Act,1961 [for short the Act ] on the basis of the information that late grandfather of the petitioner deposited cash in State Bank of India of Rs. 14,50,000/- and had earned interest income of Rs. 31,839/- from Veraval Mercantile Co.operative Bank Ltd. during the Financial Year 2011-12 relevant to Assessment Year 2012-13 and he did not file return of income disclosing cash deposited in the bank account which had remained unexplained and on the basis of the same, notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 257 has held that only on the ground that the impugned notice was issued in the name of the deceased person and therefore the same is bad in law, is not tenable as the Assessing Officer has categorically recorded in the impugned order that the notices were served and therefore, it is presumed that the petitioner was aware about the notices issued by the Assessing Officer and the petitioner has failed to bring to the notice of the respondent-Assessing Officer about the death of his grandfather so as to initiate the proceedings against the legal heir. 13. It was therefore submitted that no interference be made while exercising extraordinary jurisdiction under Article 227 of the Constitution of India. 14. Having considered the submissions made by learned advocates for both the sides, the issue with regard to issuance of notice for reassessment under section 148 of the Act on a dead person is no more res integra in view of the decision of Bhupendra Bhikhalal (supra) wherein notice issued under section 153C of the Act against a dead person is held to be defective and consequently quashed and set aside. This Court in the aforesaid decision has held as under: 22. A Coordinate Bench of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the dead person. The court further held that section 159 of the Act would not be applicable to the facts of that case, and that, even if section 159 is attracted, the notice was required to be issued in the name of the heirs of the deceased assessee. Mr. Dave submitted that the aforesaid decision would be squarely applicable to the facts of the present case and that the impugned notice dated 28.03.2018 issued under section 148 of the Act having been issued against a dead person as well as the subsequent notices issued pursuant thereto, are invalid and are, therefore, required to be quashed and set aside. 15. This Court in case of Pravinkumar Premchand Patel L/R of Late Hiraben Premchand Patel vs. Income Tax Officer referring to the decision in case of Chandreshbhai Jayantibhai Patel vs. Income Tax Officer reported in (2019) 101 Taxmann.com 362 (Guj.) wherein, similar issue was considered and held as under: 12. In the backdrop of the aforesaid facts, it is an admitted position that the notice under section 148 of the Act was issued to a dead person. The petitioner being the heir and legal representative of the deceased, upon receipt of the notice, immediately raised objection again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentative; 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 undercharged, 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 legal representative under this section shall, subject to the provisions of sub-section (4) and subsection (5), be limited to the extent to which the estate is capable of meeting the liability. 292B. Return of income, etc., not to be invalid on certain grounds. - No return of income, assessment, notice, summons or other pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent case would, therefore, fall within the ambit of section 159(2)(b) of the Act and, hence, the proceeding can be taken against the legal representative. Now, it cannot be gainsaid that a proceeding under section 147 of the Act of reopening the assessment is initiated by issuance of notice under section 148 of the Act, and as a necessary corollary, therefore, for taking a proceeding under that section against the legal representative, necessary notice under section 148 of the Act would be required to be issued to him. In the present case, the impugned notice under section 148 of the Act has been issued against the deceased assessee. In the opinion of this court, since this is not a case falling under clause (a) of subsection (2) of section 159 of the Act, the proceeding pursuant to the notice under section 148 of the Act issued to the dead person, cannot be continued against the legal representative. 16. On behalf of the revenue, it has been contended that issuance of the notice to the dead assessee is merely a technical defect which could be corrected under section 292B of the Act. Reliance has been placed on the above referred decisions of the Supreme Court as well as the High ..... X X X X Extracts X X X X X X X X Extracts X X X X
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