INCOME TAX ACT, 1961

Section 147 Section 148 Section 292B/158(1)

Reassessment - Validity of notice under section 148 - Notice issued in name of dead person - Whether curable defect under section 292B

After a period of four years from the end of the relevant assessment year, the AO issued the Notice, under section 148 on the e-mail ID of the concerned Chartered Accountant (i.e., M/s. H.V. Vasa & Co.) for reopening the assessment for the year under consideration. In response thereto, the concerned Chartered Accountant of the petitioner, intimated the department that the assessee had expired on 27-9-2016 and hence, he pointed out his inability to represent a deceased person. It was further stated in such email that such notice issued in the name of a deceased person was not accepted. The assessee was asked by department to file the return of income in response to the impugned notice through the legal heir. The department, instead of providing reasons for reopening, issued another notice, dated 25-6-2018 under section 142(1) read with section 129 in the name of the deceased assessee calling upon him to furnish certain further details and information, as specified therein. The reopening was objected on the ground that the impugned notice issued in the name of a deceased person was an invalid notice.Held: In the present case, the impugned notice under section 148 had been issued against the deceased assessee. The present case was not falling under clause (a) of sub-section (2) of section 159 and in such circumstances, the proceedings pursuant to the notice under section 148 issued to a dead person cannot be continued against the legal representatives. All that the writ-applicant did was, she informed the AO that the notice was issued in the name of her husband who was already dead and gone. Such intimation to the AO cannot be termed as participating in the proceedings. For the purpose of section 292B the notice should be in conformity with and in accordance with the intent and purpose of the Act. A case in which notice was issued to a dead person could be termed as nullity. It was something like a safeguard passing a decree against a dead person which cannot be executed through the legal representatives of the judgment-debtor.

Followed:Vipin Walia v. ITO (2016) 381 ITR 19 (Del) : 2016 TaxPub(DT) 1140 (Del-HC), Rasid Lala v. ITO, Ward-1(3)(6) [Special Civil Application No. 18987 of 2016, decided on 29-11-2016] : 2016 TaxPub(DT) 5224 (Guj-HC). Relied:Chandreshbhai Jayantibhai Patel v. ITO (2019) 261 Taxman 137 (Guj) : 2019 TaxPub(DT) 496 (Guj-HC), Bipinbhai Bachubhai Kataria, L/R of Late Bachubhai Rambhai v. ITO (Special Civil Application No. 7850 of 2019 decided on 9-7-2019) : 2019 TaxPub(DT) 5192 (Guj-HC), Shaikh Abdul Kadar v. ITO (1958) 34 ITR 451 (MP) : 1958 TaxPub(DT) 175 (MP-HC), Smt. Kesar Devi v. CIT (No. 2) (2010) 321 ITR 344 (Raj) : 2010 TaxPub(DT) 344 (Raj-HC), Alamelu Veerappan v. ITO, Non Corporate Ward 2(2), Chennai [Writ Petition No. 30060 of 2017, decided on 7-6-2018] : 2018 TaxPub(DT) 3564 (Mad-HC). Applied:CIT, Bombay City I, Bombay v. Amarchand N. Shroff by his heirs and Legal Representatives, reported in AIR 1963 SC 1448.

SUBSCRIBE FOR FULL CONTENT