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TMI Blog2025 (1) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... pite the respondent being informed of the death. Section 159 of the Act is applicable when proceedings are initiated and pending against an assessee during their lifetime, and the legal representative assumes responsibility after the assessee's death. This was not the factual scenario in the present case; therefore, Section 159 of the Act is not applicable here. We may also refer to decision of this Court in Dharamraj [ 2022 (1) TMI 844 - DELHI HIGH COURT ] wherein also the assessee had died much prior to the issuance of the notice under Section 148 of the Act, and the issuance of such a notice was held to be unsustainable in law, inter-alia holding that even section 292B of the Act does not apply in such a situation. This writ petition is allowed, and resultantly, the impugned notice u/s 148A(b) is quashed. - HON'BLE MR. JUSTICE YASHWANT VARMA AND HON'BLE MR. JUSTICE DHARMESH SHARMA For the Appellant Through: Mr. Rohan Gupta Mr. Vaibhav Grover, Advs. For the Respondents Through: Mr. Vipul Agrawal, SSC with Mr. Gibran Naushad Ms. Sakashi Shairwal, JSCs for Respondent/Revenue. JUDGMENT DHARMESH SHARMA, J. 1. The petitioner, namely, Puneet Verma being the son and legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2022 SCC OnLine Del 174. 5. Suffice to point out that in the cited case Savita Kapila, a Division Bench of this Court dealt with similar circumstances where a notice had been issued under section 148 of the Act to the deceased assessee i.e., father of the petitioner-assessee, subsequent to the death of the assessee and it was observed as under:- 23. It is well settled law that an alternative statutory remedy does not operate as a bar to maintainability of a writ petition in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order or notice or proceedings are wholly without jurisdiction or the vires of an Act is challenged. (See Whirlpool Corporation v. Registrar of Trade Marks (1998) 8 SCC 1) 24. Further, the fact that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequently would have no legs to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1961 of service of notice was not fulfilled in the present instance. 25. 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. 26. In the opinion of this court the issuance of a notice under section 148 of the Act is the foundation for reopening of an assessment. Consequently, the sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. (See Sumit Balkrishna Gupta v. Asst. CIT (2019) 414 ITR 292 (Bom) ; (2019) 2 TMI 1209-the Bombay High Court ). {bold portions emphasized} 6. Incidentally, at this juncture, it may also be stated that learned counsel for the respondent invited the att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act is applicable when proceedings are initiated and pending against an assessee during their lifetime, and the legal representative assumes responsibility after the assessee's death. This was not the factual scenario in the present case; therefore, Section 159 of the Act is not applicable here. 8. We may also refer to decision of this Court in Dharamraj (supra), wherein also the assessee had died much prior to the issuance of the notice under Section 148 of the Act, and the issuance of such a notice was held to be unsustainable in law, inter-alia holding that even section 292B 4 of the Act does not apply in such a situation. 9. In view of the foregoing discussion, this writ petition is allowed, and resultantly, the impugned notice under Section 148A(b) of the Act, in relation to the Assessment Year 2019-2020, dated 30 March 2023 is quashed and all consequential orders and proceedings arising therefrom, are hereby quashed and set aside. 10. The pending application also stands disposed of. ---------------------- Notes:- 1. 148A. Conducting inquiry, providing opportunity before issue of notice under Section 148 The Assessing Officer shall, before issuing any notice under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e risk management strategy formulated by the Board from time to time; (ii) any audit objection to the effect that the assessment in the case of the assessee for the relevant assessment year has not been made in accordance with the provisions of this Act; or (iii) any information received under an agreement referred to in section 90 or section 90A of the Act; or (iv) any information made available to the Assessing Officer under the scheme notified under section 135A; or (v) any information which requires action in consequence of the order of a Tribunal or a Court. Explanation 2. For the purposes of this section, where, (i) a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A, on or after the 1st day of April, 2021, in the case of the assessee; or (ii) a survey is conducted under section 133A, other than under sub-section (2A) [***] of that section, on or after the 1st day of April, 2021, in the case of the assessee; or (iii) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or Commissioner, that any money, bullion, jewellery or other valuable article or thing, seized or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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