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TMI Blog2025 (1) TMI 818X X X X Extracts X X X X X X X X Extracts X X X X ..... R HEMANI, LD.SR.ADV WITH MS VAIBHAVI K PARIKH(3238) FOR THE PETITIONER(S) NO. 1 MR.VARUN K.PATEL(3802) FOR THE RESPONDENT(S) NO. 1,2 JUDGMENT ( PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA ) 1. Heard learned Senior Advocate Mr.Tushar Hemani with learned advocate Ms.Vaibhavi K. Parikh for the petitioner and learned advocate Mr.Dev D. Patel for learned Senior Standing Counsel Mr.Varun K. Patel for the respondents. 2. Rule, returnable forthwith. Learned advocate Mr.Dev Patel waives service of notice of rule for and on behalf of the respondents. 3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : (a) quash and set aside the impugned notice at ANNEXURE A to this petition; (aa) quash and set aside the Assessment Order and demand notice for the Assessment Year 2017-18 at ANNEXURE D (Colly.) to this petition; (b) pending the admission, hearing and final disposal of this petition, to stay the implementation and operation of the notice at ANNEXURE A to this petition and stay the further proceedings for the Assessment Year 2017-18; (bb) pending the admission, hearing and final disposal of this petition, to stay the impleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr.Dev D. Patel for the respondent-Assessing Officer referred to and relied upon the following averments made in the affidavit-inreply: 2. It is submitted that in respect of the above petitioner, the return of income for the A.Y 2017-18, was filed on 10.04.2017 and further in present case the information was uploaded in the Insight Portal by the Department that the assessee has undertaken financial transactions being unrecorded sale consideration, emanating out of search conducted in Popular Group of cases for Rs.1,11,86,585/- on the basis of the above said information this case was reopened by issuing notice u/s. 148 of the I. T Act, 1961 on 31.03.2021 and notice was duly served on 31.03.2021 at 01.05.05 PM on email i.e. santosh [email protected]. A copy showing the mail being served is annexed herewith and marked as ANNEXURE-R1. It is further submitted that thereafter, the case was transferred to the National Faceless Assessment Centre, Delhi and further, proceedings were carried out by NFAC. 3. It is submitted that the NFAC (National Faceless Assessment Centre) has issued the following 142(1) notices and show cause notice issued to assessee, the details is as under: Sr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Demand Notice were duly served to the assessee on the same mail ID. It is therefore submitted that though first notice u/s. 148 of the Act and final assessment order were served to the assessee, but other notices sent in between sent on the same email ID were surprisingly bounced back. 6.2. Referring to the above averments, it was submitted that the respondent-Assessing Officer has served the notices under Section 142(1) of the Act upon the Email address furnished by the late husband of the petitioner available in the computer system and therefore, there is no failure on the part of the respondents to issue the notice for reopening under Section 148 of the Act. 7. However, considering the above submissions, it is apparent and not in dispute that the impugned notice has been issued upon the late husband of the petitioner and therefore, the same would be without jurisdiction as it is now also evident from the additional documents placed on record including the Screenshot from the Income Tax Portal at page No.85 of the compilation wherein, the Email address had been updated as per the Adhar Card of the late husband of the petitioner. It is also evident from the record that the updat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been duly served upon him. Such, it is provided, shall be precluded by taking any objection about the service of the service of the notice and manner of the service. 5.4 The Division Bench held that the said provision would not apply in cases where notices are gone to the dead assessee and the proceedings are started against a dead assessee. It was observed and held in paragraph 23 thus, The purport of Section 292B of the Act is that in the event of any mistake, defect or omission in the notice or other proceedings, if the same is in conformity with or according to the intent and purpose of the Act, the notice cannot be termed as invalid. To put it in other words, the notice should be in conformity with and in accordance with the intent and purpose of the Act. In our opinion, a case in which notice is issued to a dead person could be termed as nullity. It is something like a safeguard passing a decree against a dead person which cannot be executed through the legal representatives of the judgment-debtor. 5.4.1 The continuation of proceedings pursuant to notice under Section 148 of the Act was held to be without authority of law by the Court stating thus - ...the notice under s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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