Bhavnaben Sanmukhbhai Patel L/H Of Late Sanmukhbhaikeshavbhai Patel v. The Income Tax Officer Ward 2(3)(4

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/SPECIAL CIVIL APPLICATION NO. 20437 of 2018 ========================================================== BHAVNABEN SANMUKHBHAI PATEL L/H OF LATE SANMUKHBHAIKESHAVBHAI PATEL Versus THE INCOME TAX OFFICER WARD 2(3)(4) ========================================================== Appearance: MR. TUSHAR HEMANI, SR. ADV. WITH MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1 MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIAandHONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 12/07/2022 ORAL ORDER (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned senior advocate Mr. Tushar Hemani with learnedadvocate Ms. Vaibhavi Parikh for the petitioner and learned advocateMr. Nikunt Raval for the respondent authorities. 2. The petitioner Bhavnaben Sanmukhbhai Patel-legal heir of deceased Sanmukhbhai Keshavbhai Patel by filling present petition underArticle 226 of the Constitution has prayed to set aside notice dated26.3.2018 issued by the Assessing Officer under section 148 of theIncome Tax Act, 1961 in respect of the Assessment Year 2011-2012stating that for the reasons to believe, the income chargeable to tax for the Assessment Year under consideration has escaped assessment within themeaning of section 147 of the Income Tax Act, 1961 (hereinafter referredto as ‘the Act’). 3.Therefore, the Assessing Officer has proposed to assess/re-assessthe income of the addressee of the notice. The notice was issued in thename of Sanmukhbhai Keshavbhai Patel. 4.Learned senior advocate for the petitioner invited the attention ofthe Court to the impugned notice issued under section 148 of the IncomeTax Act, 1961 to point out that the same has been issued in the name ofSanmukhbhai Keshavbhai Patel, who died on 09.09.2014. It was pointedout that in view of the fact that notice had been issued to a dead person,the petitioner herein had addressed a communication dated 24.04.2018 tothe respondent pointing out that since the notice was issued in the nameof a dead person, the same was required to be filed. 4.1It was submitted that thereafter the Assessing Officer issued noticeunder section 142(1) of the Act to the petitioner, who once again,requested the authority to drop the notice, as the same was issued to adead person. It was submitted that the Assessing Officer, despite the fact that the impugned notice under section 148 of the Act has been issued to a dead person, persisted on continuing with the assessment pursuantthereto and framed assessment by order dated 14.12.2018 in the name ofthe petitioner. It was submitted that the impugned notice, having beenissued against a dead person, was invalid and that pursuant to the noticeissued to the dead person, any assessment order could not have beenpassed against the legal heir-the petitioner herein. 5. The question whether the income tax authorities can subject a deadperson to the assessment proceeding, is no longer res integra. 5.1 The Division Bench of this Court in Urmilaben AnirudhhasinjiJadeja Vs. Income Tax Officer, Ward 7(1)(3) [(420) ITR 226],addressed the very issue. The Court considered various decisions of theSupreme Court and the High Court, touching the aspects of the issue, andheld that there cannot be any assessment against a dead person. In thatcase also, notice was issued to the dead assessee under Section 148 of theIncome Tax Act, 1961. 5.2 While holding that the proceedings would be nullity against thedead assessee, the rider was provided that in cases where legalrepresentatives participate in the assessment or re-assessment 5. The question whether the income tax authorities can subject a deadperson to the assessment proceeding, is no longer res integra. 5.1 The Division Bench of this Court in Urmilaben AnirudhhasinjiJadeja Vs. Income Tax Officer, Ward 7(1)(3) [(420) ITR 226],addressed the very issue. The Court considered various decisions of theSupreme Court and the High Court, touching the aspects of the issue, andheld that there cannot be any assessment against a dead person. In thatcase also, notice was issued to the dead assessee under Section 148 of theIncome Tax Act, 1961. 5.2 While holding that the proceedings would be nullity against thedead assessee, the rider was provided that in cases where legalrepresentatives participate in the assessment or re-assessment proceedings, the proceedings may be maintained and continued. It was atthe same time held that mere intimation by the legal representative to theassessing officer that the noticee is dead, would not amount the heirparticipating in the proceedings. In Urmilaben Anirudhhasinji Jadeja(supra), while the revenue raised various contentions seeking aproposition that the proceedings against the dead assessee would bemaintained, the Court negatived them all. 5.2.1 One of the contentions was based on Section 292BB of the Act. The said provision contemplates that the notice shall be deemed to bevalid in certain circumstances. It mentions that where an assessee hasappeared in any proceedings or cooperated in any inquiry relating toassessment or re-assessment, it shall be deemed that a notice required tobe served under the Act has been duly served upon him. Such assessee, itis provided, shall be precluded from taking any objection about theservice of the service of the notice and manner of the service. 5.2.2 The Division Bench held that the said provision would not apply incases where notices are gone to the dead assessee and the proceedings arestarted against a dead assessee. It was observed and held in paragraph 23thus, "The purport of Section 292BB of the Act is that in the event of any mistake, defect or omission in the notice or other proceedings, if thesame is in conformity with or according to the intent and purpose of theAct, the notice cannot be termed as invalid. To put it in other words, thenotice should be in conformity with and in accordance with the intentand purpose of the Act. In our opinion, a case in which notice is issuedto a dead person could be termed as nullity. It is something like asafeguard passing a decree against a dead person which cannot beexecuted through the legal representatives of the judgment-debtor." 5.3Similar view was taken by the co-ordinate Bench of this court in Chandreshbhai Jayantibhai Patel vs. Income Tax Officer [(2019) 101taxmann.com 362 (Gujarat)]. 6.The facts of the case do not offer any fact or circumstances tosuggest that the legal representative of the deceased assessee in anymanner submitted to the jurisdiction of the income tax authorities or inany way participated in the proceedings so as to persuade the court tohold otherwise. 6. In view of the above, the present petition deserves to be allowed. Itis hereby allowed by holding that the impugned notice, which was againstthe dead assessee could not be sustained. 6.1 Resultantly, the notice dated 26.03.2018 issued in the name ofSanmukhbhai Keshavbhai Patel, as a dead person, by the income tax department, is held to be illegal. 7. The Notice dated 26.03.2018 issued by the income tax authoritiesis set aside. The income tax authorities shall not proceed against the saiddead assessee. Rule is made absolute. (N.V.ANJARIA, J) C.M. JOSHI (BHARGAV D. KARIA, J)