Himadri Kandarp Mehta L/H Of Late Kandarp Yashashvibhaimehta v. The Income Tax Officer

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 16323 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA ========================================================== 1Whether Reporters of Local Papers may beallowed to see the judgment ? 2To be referred to the Reporter or not ? 3Whether their Lordships wish to see thefair copy of the judgment ? 4Whether this case involves a substantialquestion of law as to the interpretationof the Constitution of India or any ordermade thereunder ? ========================================================== HIMADRI KANDARP MEHTA L/H OF LATE KANDARP YASHASHVIBHAIMEHTA Versus THE INCOME TAX OFFICER ==========================================================Appearance:MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1M R BHATT & CO.(5953) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 01/08/2022 ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Having regard to the compass of the caseinvolved in the petition and on the request made bythe learned advocates appearing for the parties, thepetition is taken up for final consideration. 1.1Rulereturnable forthwith. Learned advocateMr.Karan Sanghani for the respondent authoritiesappear on behalf of M.R. Bhatt & Company waivesservice of Rule. 1.2Heard learned Senior Advocate Mr. Tushar Hemaniassisted by learned advocate Ms. Vaibhavi Parikh forthe petitioner and learned Senior Advocate Mr. M.R.Bhatt for M.R. Bhatt & Co. assisted by learnedadvocate Mr. Karan Sanghani for the respondent. 2.By filing this petition under Article 226 of theConstitution, the petitioner Himadri Kandarp Mehtahas prayed to set aside the notice dated 12.03.2019issued to one Kandarp Yasasvibhai Mehta, which is anotice under Section 148 of the Income Tax Act, 1961seeking to reopen the assessment stating that theassessing officer had reason to believe that incomeof the said assessee chargeable to tax in respect ofassessment year 2012-13 has escaped the assessment.The aforementioned impugned notice came to be issuedafter a gap of four years. 3.Noticing the relevant facts, while the impugnednotice was received on 12.03.2019, it was stated inthe petition that the said assessee Kandarp Yasashvibhai Mehta died on 21.12.2012. The factum ofdeath of the said assessee is evidenced by the deathcertificate issued by the competent authority andproduced on the record of the petition. Thepetitioner herein, who happens to be the daughter andlegal heir of the deceased assessee Kandarp Y. Mehta,addressed a letter to the authority on 03.07.2019stating that the said Kandarp Y. Mehta had passedaway, sending with the communication, copy of thedeath certificate as well. 3.1It appears that the respondent authorities didnot drop the reassessment proceeding despite theabove intimation and proceeded to issue anothernotice dated 13.09.2019 in the name of the deceasedunder Section 142(1) of the Act calling upon thepetitioner to show cause as to why ex-parte orderunder Section 144 of the Act should not be passed.The petitioner again addressed a letter dated13.09.2019 to state that the assessee had passed awayand therefore, re-assessment proceedings wererequired to be dropped. 4.The question whether the income tax authoritiescan subject a dead person to assessment proceeding,is no longer res integra. 5.The Division Bench of this Court in UrmilabenAnirudhhasinji Jadeja Vs. Income Tax Officer, Ward7(1)(3) [(420) ITR 226],addressed the very issue. 4.The question whether the income tax authoritiescan subject a dead person to assessment proceeding,is no longer res integra. 5.The Division Bench of this Court in UrmilabenAnirudhhasinji Jadeja Vs. Income Tax Officer, Ward7(1)(3) [(420) ITR 226],addressed the very issue. The Court considered various decisions of the SupremeCourt and the High Court, touching the aspects of theissue, held that there cannot be any assessmentagainst a dead person. In that case also, notice wasissued to the dead assessee under Section 148 of theIncome Tax Act, 1961 (hereinafter referred to as the"Act"). 5.1While holding that the proceedings would benullity against the dead assessee, the rider wasprovided that in cases where legal representativesparticipate in the assessment or re-assessmentproceedings, the proceedings may be maintained andcontinued. It was at the same time held that mereintimation by the legal representative to theassessing officer that the noticee is dead, would notamount to legal representation on participation inthat proceedings. 5.2InUrmilaben Anirudhhasinji Jadeja (supra),while the revenue raised various contentions seekinga proposition that the proceedings against the deadassessee would be maintained, the Court negativedthem all. 5.3One of the contention was based on Section 292Bof the Act. The said provision contemplates that thenotice shall be deemed to be valid in certaincircumstances. It mentions that where an assesseehas appeared in any proceedings or cooperated in any inquiry relating to assessment or re-assessment, itshall be deemed that a notice required to be servedunder the Act has been duly served upon him. Such,it is provided, shall be precluded by taking anyobjection about the service of the service of thenotice and manner of the service. 5.4The Division Bench held that the said provisionwould not apply in cases where notices are gone tothe dead assessee and the proceedings are startedagainst a dead assessee. It was observed and held inparagraph 23 thus, "The purport of Section 292B of the Act is thatin the event of any mistake, defect or omissionin the notice or other proceedings, if the sameis in conformity with or according to the intentand purpose of the Act, the notice cannot betermed as invalid. To put it in other words, thenotice should be in conformity with and inaccordance with the intent and purpose of theAct. In our opinion, a case in which notice isissued to a dead person could be termed asnullity. It is something like a safeguardpassing a decree against a dead person whichcannot be executed through the legalrepresentatives of the judgment-debtor." 5.4.1 The continuation of proceedings pursuant tonotice under Section 148 of the Act was held to bewithout authority of law by the Court stating thus - "...the notice under section 148 of the Act,which is a jurisdictional notice, has beenissued to a dead person. Upon receipt of suchnotice, the legal representative has raised an objection to the validity of such notice and hasnot complied with the same. The legalrepresentative not having waived the requirementof notice under section 148 of the Act and nothaving submitted to the jurisdiction of theAssessing Officer pursuant to the impugnednotice, the provisions of section 292B of theAct would not be attracted and hence, the noticeunder section 148 of the Act has to be treatedas invalid. In the absence of a valid notice,the Assessing Officer has no authority to assumethe jurisdiction under section 147 of the Actand, hence, continuation of the proceeding undersection 147 of the Act pursuant to such invalidnotice, is without authority of law. Theimpugned notice as well as the proceedings takenpursuant thereto, therefore, cannot besustained." objection to the validity of such notice and hasnot complied with the same. The legalrepresentative not having waived the requirementof notice under section 148 of the Act and nothaving submitted to the jurisdiction of theAssessing Officer pursuant to the impugnednotice, the provisions of section 292B of theAct would not be attracted and hence, the noticeunder section 148 of the Act has to be treatedas invalid. In the absence of a valid notice,the Assessing Officer has no authority to assumethe jurisdiction under section 147 of the Actand, hence, continuation of the proceeding undersection 147 of the Act pursuant to such invalidnotice, is without authority of law. Theimpugned notice as well as the proceedings takenpursuant thereto, therefore, cannot besustained." 5.5 Thus, the law is well settled that unless theheirs and legal representatives of the deceasedassessee could be said to have been submitted to thejurisdiction of the assessing officer and haveparticipated in the assessment or re-assessmentproceedings, notice to the dead assessee andcommencement of assessment or re-assessmentproceedings against dead person is rendered null andvoid. 5.6The attempt on the part of the income taxauthorities to start proceedings for assessment orre-assessment against the dead person is viewed notmerely as procedural irregularity but it is stated asjurisdictional defect. 5.7There cannot be an assessment against the deadperson. As noticed above, the provisions of Section 292B of the Act are also not applicable and noassessment can be framed against a non-existingentity or a person who has died. 6.Reverting back to the facts of the present case,Kandarp Yasashvibhai Mehta died on 21.12.2012 inwhose name, notice was issued by the income taxauthorities on 12.03.2019 under Section 148 of theAct seeking to reopen assessment in respect ofassessment year 2012-13 by communication dated03.05.2019, the petitioner herein who happens to bethe legal representative intimated to the income taxofficer concerned that the noticee KandarpYasashvibhai Mehta had died long back and that thenotice was without jurisdiction. The income taxauthorities did not pay heed to the said intimation. 6.1 The facts of the case did not offer any fact orcircumstancestosuggestthatthelegalrepresentative of the deceased assessee in any mannersubmitted to the jurisdiction of the income taxauthorities or in any way participated in theproceedings to persuade the court to hold otherwise.On the contrary, the intimation in form ofcommunication dated 03.05.2019 was sent to the incometax officer by the legal representative that thenoticee Kandarp Yasashvibhai Mehta had died. Thisintimation was repeated in form of communicationdated 13.09.2019. 6.2 In view of the above, the present petitiondeserves to be allowed. It is hereby allowed byholding that the impugned notice, which was againstthe dead assessee could not be sustained. 6.3Resultantly, the notice dated 12.03.2019received in the name of Kandarp Yasashvibhai Mehta,as a dead person, by the income tax department isheld to be illegal. 7.The Notice dated 12.03.2019 issued by the incometax authorities is set aside. The income taxauthorities shall not proceed against the said deadassessee. Rule is made absolute to the aforesaid extent. (N.V.ANJARIA, J) BIJOY B. PILLAI (BHARGAV D. KARIA, J)