Mr. Dharan v. Dated : 15[Th] February, 2022

PURTIPRASAD IN THE HIGH COURT OF JUDICATURE AT BOMBAYPARABORDINARY ORIGINAL CIVIL JURISDICTIONDigitally signed byPURTI PRASADPARABDate: 2022.02.21WRIT PETITION NO. 2329 OF 202110:53:22 +0530ALONGWITHWRIT PETITION NO. 2394 OF 2021 Raniben Khimji PatelLegal Heir of Khimji Karamshi Patel(PAN ), an individual, aged 51 years,residing at Ground Floor,53 Sheth Motisha Lane, Mazgaon,Mumbai – 400 010. V/s.1. The Assistant Commissioner of Income Tax, Central Circle 7(3), Room No.655, 6[th] Floor, AayakarBhavan, M.K. Road,Mumbai – 400 020. ….Petitioner 2. Joint Commissioner of Income Tax,Central Circle – Range 7, MumbaiAayakar Bhavan, M.K. Road,Mumbai – 400 020. 3. Principal Commissioner of Income Tax - 4(Central), Mumbai,Aayakar Bhavan, M.K. Road,Mumbai – 400 020.4. Union of India,Through The Secretary,Department of Revenue,Ministry of Finance, Government of India, North Block,New Delhi – 110 001. 5. The Central Board of Direct Taxes,Department of Revenue,Ministry of Finance, Government of India, North Block,New Delhi – 110 001. …Respondents ---- Mr. Dharan V. Gandhi for Petitioner.Mr. Suresh Kumar for Respondents. ---- CORAM : K.R. SHRIRAM &N. J. JAMADAR, JJ. DATED : 15[th] FEBRUARY, 2022 ORAL JUDGMENT : (PER : K.R. SHRIRAM, J.) 1.Facts in both petitions are identical, save change in assessmentyear. In Writ Petition No.2329 of 2021 it is A.Y. 2014-15 and in WritPetition No. 2394 of 2021 it is A.Y. 2013-14. 2.Petitioner is the legal heir of one Khimji Karamshi Patel whodied on or about 2[nd] March, 2021. The death of assessee Khimji KaramshiPatel has been communicated to respondent. Notwithstanding thecommunication of death of Khimji Karamshi Patel, respondent has issued anotice under Section 148 of the Income Tax Act, 1961 (the Act) dated 30[th]June, 2021 for A.Y. 2014-15 stating that there are reasons to believe thatKhimji Karamshi Patel’s income chargeable to tax for A.Y. 2014-15 hasescaped assessment. 3.Identical notice has been issued for A.Y. 2013-14 as well whichis also challenged separately in Writ Petition No.2394 of 2021. By thiscommon order we are disposing both the petitions with the consent of theparties. 4.Petitioner has challenged the notice itself without taking furthersteps like for example asking for reasons to believe that income aschargeable to tax has escaped assessment. 5.Petitioner has impugned this notice on the grounds that noticeissued in the name of dead person for assessment is null and void andsecondly, the notice having been issued on 30[th] June, 2021 has been issuedwithout following mandatory provisions of law that came into force on 1[st]April, 2021. 6.On the first ground that notice issued to a dead person is nulland void in law, this court in Sumit Balkrishna Gupta vs. AssistantCommissioner of Income Tax, Circle 16(2), Mumbai1hasheld that noticeissued in the name of a dead person for re-opening of assessment is null andvoid in law. Paragraph no.6 and 7 of the said judgment reads as under: 6.In view of the above, the submission of the Revenuereiterating the grounds in the impugned order dated13.11.2018 stands negatived on facts so far as grounds (b)i.e registration as legal heir and (c) i.e filing the return inthe name of deceased assessee therein are concerned. It isnot seriously disputed by the Revenue before us that areopening notice issued in the name of a deceased personis null and void. This in view of the decision of the GujaratHigh Court in the case of Vikram Singh Vs. Union of India[2018] 401 ITR 302 rendered on 22.1.2018, a decision ofDelhi High Court in the case of Rajendra Kumar Sehgal Vs.I.T.O., [2019] 101 taxmann.com 233/260 Taxman 412rendered on 19.11.2018 and the decision of Madras HighCourt in the case of Alamelu Veerappan Vs. I.T.O., [2018]95 taxmann.com 155/257 Taxman 72. These Courts hadoccasion to consider an identical issue of notice ofreopening in the name of the deceased assessee and after 1 [2019] 103 taxmann.com 188 (Bombay) 1 [2019] 103 taxmann.com 188 (Bombay) considering the same, came to the conclusion that thenotice issued in the name of the dead person for reopeningof assessment is null and void in law. 7.The issue of a notice under Section 148 of the Act is afoundation for reopening of assessment. The sine qua nonfor acquiring jurisdiction to reopen an assessment is thatsuch notice should be issued in the name of the correctperson. This requirement of issuing notice to a correctperson and not to a dead person is not a merely aprocedural requirement but is a condition precedent to theimpugned notice being valid in law. Thus, a notice whichhas been issued in the name of the dead person is also notprotected either by provisions of Section 292B or 292BB ofthe Act. This is so as the requirement of issuing a notice inthe name of correct person is the foundationalrequirement to acquire jurisdiction to reopen theassessment. This is evident from Section 148 of the Act,which requires that before a proceeding can be taken upfor reassessment, a notice must be served upon theassessee. The assessee on whom the notice must be sentmust be a living person i.e legal heir of the deceasedassessee, for the same to be responded. This in fact is theintent and purpose of the Act. Therefore, Section 292B ofthe Act cannot be invoked to correct a foundational /substantial error as it is meant so as to meet thejurisdictional requirement. Therefore, both the impugnednotice dated 29.3.2018 and the impugned order dated13.11.2018 are quashed and set aside. It is made clearthat this order will not prohibit the Revenue from issuing afresh notice for reassessment, if requirement of Section147/148 of the Act are satisfied, including the limitationperiod therein. 7. There are many other judgments including one of the Gujarat High Court in case of Bhupendra Bhikhalal Desai vs. Income Tax Officer, Ward 1(2)(1)2 where also the court held that notice issued to a dead personis not valid. This judgment of the Gujarat High Court has been upheld bythe Hon’ble Apex Court in Income Tax Officer vs. Bhupendra Bhikhalal Desai 3. 2 [2021] 130 taxmann.com 196 (Gujarat) 3 [2021] 131 taxmann.com 40 (SC) 8. In the circumstances, we hereby grant prayer clause – (i) which reads as under : (i) that this Hon’ble Court may be pleased to issue a Writof Certiorari or a Writ in the nature of Certiorari or anyother appropriate Writ, Order or direction, calling for therecords of the Petitioner’s case and after going into thelegality and propriety thereof, to quash and set aside thesaid notice u/s 148 of the Act dated 30 June 2021 (“ExhibitI”) 9.Since we have quashed the notice itself as not maintainable having been issued to a dead person, we are not considering the other aspect as to whether respondent was correct in issuing notice without following the mandatory provisions of law. 10.Petitions disposed. (N. J. JAMADAR, J.) (K.R. SHRIRAM, J.)