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TMI Blog1984 (8) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... been completed after giving reasonable opportunity of being heard to the said Shri Mani, who had appeared before the WTO. 4. Smt. Dhangauri Gopalji, the wife of the deceased original assessee, was the executrix of the will of the said deceased. She filed appeal before the Commissioner (Appeals) against the assessment order. The first ground that was raised on her behalf before the Commissioner (Appeals) was that the whole assessment was bad and illegal, inasmuch as, it had been made in the name of the deceased and that the demand notice had also been issued in the name of the deceased. According to her, this was an assessment on dead person and, as such, was null and void. Reliance was placed by her on certain decisions. In the alternative, she raised objections on merit in respect of matters decided by the WTO in the assessment order. 5. The Commissioner (Appeals) noted in his order the first ground of appeal in which the validity of the assessment itself had been challenged and also the decisions cited on behalf of the executrix in support of the plea. However, he did not express any opinion on the question whether the assessment was valid or not and did not adjudicate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to take further action by way of filing appeal. There is no question of any other legal heir filing the appeal against the assessment order. We, accordingly, reject the said additional ground. 10. The grounds as to the validity of assessment raised by the executrix in the two objections go to the very root of the matter and, as such, they should be considered at the outset. In fact, it was the duty of the Commissioner (Appeals) to consider the ground regarding the validity of assessment at the very outset and he should have considered the grounds on merit only after he was satisfied that the assessment order was not liable to be either cancelled or set aside. He failed to do so. 11. We have heard the rival submissions at length on this question and we proceed to decide the same. The relevant provision is section 19(2) of the Act, which, so far as material, is as follows : " Where a person dies ... after having furnished a return which the Wealth-tax Officer has reason to believe to be incorrect or incomplete, the Wealth-tax Officer may make an assessment of the net wealth of such person and determine the wealth-tax payable by the person on the basis of such assessment, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment should not be annulled but it should be merely set aside with directions to complete the same after removing the above defects. 13. We have carefully considered the submissions. As already stated what section 19(2) in substance requires is that the executrix should be given an opportunity of producing evidence and of being heard before the assessment in respect of wealth of the deceased is completed. In order that the executrix may be given such opportunity, provision has been made therein that notice should be issued to the executrix. In the present case, the notice has not been issued to the executrix. However, the executrix has appeared and opportunity of being heard has been given to her. In the circumstances, the assessment, in the present case, cannot be said to be void ab initio. What all that can be said is that a procedural irregularity has crept in the proceedings. 14. Similarly, the mere fact that the name of the deceased has been mentioned in the assessment order as the assessee does not mean that the assessment has been made on the dead person. The assessment can be said to have been made on a dead person when no notice is sent to the legal represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consequent levy of penalty was not valid. The ratio of that decision would not be applicable in the present case because in that case the concerned officer acquired jurisdiction to initiate proceedings only on issue of notice signed by him and since the notice was not signed by him, the defect pertained to the jurisdiction. In the present case return was filed by the deceased and, hence, jurisdiction to assess was there. The subsequent defect was not jurisdictional defect but was a procedural one. 18. In this connection, we may refer to the decision of the Gujarat High Court in CIT v. Sumanthbhai C. Munshaw [1981] 128 ITR 142. In that case, after filing of the return, the assessee had died. Thereafter notice had been issued and assessment proceedings continued in the name of the deceased assessee. The legal representative was not issued any notice, but he appeared and did not raise any objection. It was held that the assessment proceedings and order in the name of the deceased was not null and void and that the legal representative could not question the validity of the assessment after limitation for making assessment had expired. This decision was given in the income-tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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