Sca/1523/2022 Of Kanubhai Dhirubhai Patel Lr Of Late Dhirubhai Sambhubhai v. Income Tax Officer Ward 6(1)(1) Ahmedabad Of His Successors

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 1523 of 2022 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE J.B.PARDIWALA andHONOURABLE MS. JUSTICE NISHA M. THAKORE ==========================================================1Whether Reporters of Local Papers may be allowed YESto see the judgment ?2To be referred to the Reporter or not ?YES3Whether their Lordships wish to see the fair copyNOof the judgment ?4Whether this case involves a substantial questionNOof law as to the interpretation of the Constitutionof India or any order made thereunder ?==========================================================KANUBHAI DHIRUBHAI PATEL LR OF LATE DHIRUBHAI SAMBHUBHAI VersusINCOME TAX OFFICER WARD 6(1)(1) AHMEDABAD OF HISSUCCESSORS ==========================================================Appearance:MS SHRUNJAL T SHAH(10617) for the Petitioner(s) No. 1MR MR BHATT WITH MR KARAN SANGHANI FOR M R BHATT & CO.(5953) for the Respondent(s) No. 1========================================================== CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 14/02/2022 ORAL JUDGMENT (PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE) 1.Rule returnable forthwith. Mr. M.R. Bhatt, the learned seniorcounsel waives service of Rule on behalf of the respondent. 2.By this writ application under Article 226 of the Constitutionof India, the writ applicant has prayed for the following reliefs: “This Hon’ble Court be pleased to issue a writ of mandamusor a writ in the nature of mandamus or a writ of certiorari ora writ in the nature of certiorari or any other appropriate writ,direction or order and be pleased to: (a)quash and set aside the impugned notice dated31.03.2021 at Annexure -’A’ to this petition; (b)quash and set aside the subsequent notice dated17.12.2021 at Annexure - ‘B’ to this petition; (c)pending the admission, hearing and final disposal ofthis petition, to stay implementation and operation of thenotice at Annexure - ‘A’ and ‘B’ to this petition and stayfurther recovery and proceedings for assessment for A.Y.2015-16; (d)any other and further relief deemed just and proper begranted in the interest of justice. (e)to provide for the cost of this petition.” 3.The case of the writ applicant in her own words as pleaded inthe writ application is as under: 3.1The writ applicant is an individual assessee and is also sonof one Dhirubhai Shambhubhai Malviya, having PANNo.CLPMO139A (hereinafter referred to “the deceased”). The saidDhirubhai Shambhubhai Malviya expired on 22.11.2020. The writapplicant has placed on record the death certificate of thedeceased. 3.2The Assessing Officer, Ward 6(1)(1), Ahmedbad, issuednotice dated 31.03.2021 under Section 148 of the Income Tax Act(for short “the Act”) calling upon the deceased assessee to filereturn of the income for the A.Y. 2015-16. 3.3The writ applicant being son of deceased assessee throughhis Chartered Accountant responded to the said notice underSection 148 of the Act by submitting reply dated 10.04.2021. In thesaid reply, the writ applicant had specifically drawn attention of theAssessing Officer about the death of the original assessee andhad further requested to drop the proceedings as such notice willhave no legal sanctity in the eye of law. 3.4The writ applicant once again submitted reply dated15.12.2021 thereby reiterated that the notice has been issued inthe name of the deceased assessee and requested to drop theproceedings. 3.5Inspite of the aforesaid fact being draw to the attention of therespondent authority, the Assessing Officer further issued noticeunder Section 142(1) of the Act dated 17.12.2021 again addressedto the deceased assessee. 3.4The writ applicant once again submitted reply dated15.12.2021 thereby reiterated that the notice has been issued inthe name of the deceased assessee and requested to drop theproceedings. 3.5Inspite of the aforesaid fact being draw to the attention of therespondent authority, the Assessing Officer further issued noticeunder Section 142(1) of the Act dated 17.12.2021 again addressedto the deceased assessee. 3.6In such circumstances, the writ applicant has approachedthis Court praying for quashment of the impugned notice dated31.03.2021 issued under Section 148 of the Act and furtherproceedings initiated vide notice dated 17.12.2021 issued underSection 142 (1) of the Act as being bad in the eye of law. 4.We have heard Ms. Shrunjal T. Shah, the learned counselappearing for the writ applicant as well as Mr. M.R. Bhatt, thelearned senior counsel appearing for the Department. 5.Ms. Shah has specifically contended in the para 3.6 of thememo of the writ application as well as argued that the writapplicant upon receiving the impugned notices in the name of deceased has from first instance objected to the same and hadrequested the respondent to drop proceedings. The writ applicanthas therefore, never participated in the proceedings in the presentcase. It is submitted that the writ applicant has not submitted to thejurisdiction of the respondent but has rather questioned the samevide reply submitted on 10.04.2021 and 15.12.2021. On the otherhand no material has come on record to contradict the same.Thus, issue which falls for our consideration is that whether theimpugned notice and the consequential proceedings initiated bythe Assessing Officer against the deceased assessee ismaintainable in the eye of law. 6. The aforesaid issue is no more res integra. Undisputedly, theoriginal assessee had expired on 22.11.2020, the impugned noticeunder Section 148 of the Act came to be issued on 31.03.2021,which was addressed to the deceased asseessee calling upon tofile return of income for annual A.Y. 2015-16. Even thereafter, thenotice under Section 142(1) of the Act seeking further proceedingscame to be issued on 17.12.2021, once again upon the deceasedassessee. At this stage, it would be appropriate to reproduce thedecision of this Court in the case of Chandreshbhai JayantibhaiPatel Vs. Income Tax Officer reported in (2019) 101taxmann.com 362 (Gujarat), we quote relevant observationsmade as under: “6.1 Reference was made to the decision of the SupremeCourt in the case of Girijanandini Devi v. Bijendra NarainChoudhary, AIR 1967 SC 1124, for the proposition that deathof the person liable to render an account for propertyreceived by him does not affect the liability of his estate. Itwas submitted that therefore, even after his death, deceasedJayantibhai does not cease to be an assessee andconsequently, the legal representative is responsible for filingthe return of income and answering to the notice. It was submitted that the Madras High Court in the case of AlameluVeerappan v. Income Tax Officer, Non-corporate Ward- 2(2),Chennai (supra), on which reliance has been placed onbehalf of the petitioner, does not refer to section 292B of theAct and, therefore, the said decision would be not applicableto the facts of the present case. It was submitted that in thiscase, the petitioner had knowledge of the proceedings andhas responded to the same as legal representative of thedeceased and, therefore, the procedural defect which isotherwise curable may be permitted to be cured. 6.2 Reference was made to section 2(29) of the Act, whichsays that "legal representative" has the meaning assigned toit in clause (11) of section 2 of the Code of Civil Procedure,1908. submitted that the Madras High Court in the case of AlameluVeerappan v. Income Tax Officer, Non-corporate Ward- 2(2),Chennai (supra), on which reliance has been placed onbehalf of the petitioner, does not refer to section 292B of theAct and, therefore, the said decision would be not applicableto the facts of the present case. It was submitted that in thiscase, the petitioner had knowledge of the proceedings andhas responded to the same as legal representative of thedeceased and, therefore, the procedural defect which isotherwise curable may be permitted to be cured. 6.2 Reference was made to section 2(29) of the Act, whichsays that "legal representative" has the meaning assigned toit in clause (11) of section 2 of the Code of Civil Procedure,1908. 6.3 The learned counsel further invited the attention of thecourt to the provisions of section 292B of the Act, which interalia provide that no notice, summons or other proceeding,issued or taken in pursuance of any of the provisions of theAct shall be invalid or shall be deemed to be invalid merely byreason of any mistake, defect or omission in such notice,summons or other proceeding if such notice, summons orother proceeding is, in substance and effect, in conformitywith or according to the intent and purpose of the Act. It wassubmitted that in the light of the provisions of section 292B ofthe Act, the defect in the notice by issuing the same to a deadperson would not render the notice invalid, inasmuch as it is apurely procedural lapse. 6.4 Reliance was placed upon the decision of the Delhi HighCourt in the case of Sky Light Hospitality LLP v. AssistantCommissioner of Income Tax, (2018) 405 ITR 296 (Delhi),wherein the court has held thus: "17. In the context of the present writ petition, theaforesaid ratio is a complete answer to the contentionraised on validity of the notice under section 147/148 ofthe Act as it was addressed to the erstwhile companyand not to the limited liability partnership. There was nodoubt and debate that the notice was meant for thepetitioner and no one else. Legal error and mistake wasmade in addressing notice. Noticeably, the appellant having received the said notice, had filed withoutprejudice reply/letter dated April 11, 2017. They hadobjected to the notice being issued in the name of thecompany, which had ceased to exist. However, thereading of the said letter indicates that they hadunderstood and were aware, that the notice was forthem. It was replied and dealt with by them. The factthat notice was addressed to M/s Sky Light HospitalityPvt. Ltd., a company which had been dissolved, was anerror and technical lapse on the part of the respondent.No prejudice was caused." 6.5 It was pointed out that the above decision of the DelhiHigh Court came to be challenged before the Supreme Courtin Sky Light Hospitality LLP v. Assistant Commissioner ofIncome Tax, [2018] 92 Taxman.com 93 (SC), whichdismissed the special leave petition holding that the wrongname given in the notice was merely a clerical error whichcould be corrected under section 292B of the Act. 6.5 It was pointed out that the above decision of the DelhiHigh Court came to be challenged before the Supreme Courtin Sky Light Hospitality LLP v. Assistant Commissioner ofIncome Tax, [2018] 92 Taxman.com 93 (SC), whichdismissed the special leave petition holding that the wrongname given in the notice was merely a clerical error whichcould be corrected under section 292B of the Act. 6.6 Reliance was also placed upon the decision of theSupreme Court in the case of Commissioner of Income Tax,Shillong v. Jai Prakash Singh, [1996] 219 ITR 737, whereinthe assessee did not file returns for three assessment yearsand died in April 1967, leaving behind him, in all, ten legalheirs. The eldest son Jai Prakash Singh filed the returns forthe three assessment years. Such returns were signed byhim alone and not by the other legal representatives. Scrutinyassessment came to be carried out by the Income TaxOfficer, during the course of which, notices under section142(1) of the Act came to be issued to Jai Prakash to appearand produce documents, accounts and other material, whocomplied with the same and did not raise any objection thatnotices must be issued to the other legal representatives ofthe deceased. Assessment orders were made in the name ofall the ten legal representatives who were described as legalrepresentatives of the deceased. Appeals were filed by JaiPrakash contending that the assessments were illegal andinvalid as no notice had been issued to all the legalrepresentatives of deceased. The court placed reliance upona decision of the Bombay High Court in Maharaja of Patiala v.Commissioner of Income Tax (Central), Bombay, (1943) 11ITR 201, for the proposition that an assessment made without strictly complying with section 24-B (section 159 in thepresent Act) is not void or illegal and that any infractions inthat behalf can be waived by the assessee. The court alsoplaced reliance upon its earlier decision in Estate of LateRangalal Jajodia v. Commissioner of Income Tax, Madras,(1971) 79 ITR 505, for the proposition that an omission toserve or any defect in the service of notices provided byprocedural provisions does not efface or erase the liability topay tax where such liability is created by distinct substantiveprovisions (charging sections). Any such omission or defectmay render the order made irregular - depending upon thenature of the provision not complied with, but certainly notvoid or illegal. Following the said decisions, the court heldthat in the facts and circumstances of the case, the orders ofassessment made by the Income Tax Officer without notice toall the legal representatives are not null and void in law, butare merely irregular/defective proceedings which can be setright by remitting the matters to the Income Tax Officer formaking fresh assessments with notice to all legalrepresentatives. Chandreshbhai Jayantibhai Patel vs TheIncome Tax Officer on 10 December, 2018. 6.7 Reliance was placed upon the decision of this court in thecase of Commissioner of Income Tax v. Sumantbhai C.Munshaw, (1981) 128 ITR 142, wherein though the noticewas issued to the deceased person, the proceeding wascontinued against the legal representative who participated inthe proceeding and also filed return of income without raisingany objection as to the validity of the assessmentproceedings. The legal representative had, therefore,submitted to the jurisdiction of the Assessing Officer. Thecourt held that if the legal representative is present before thetaxing authority in some capacity or voluntarily appears in theproceeding without service of notice or upon service of noticenot addressed to him but to the deceased assessee and doesnot object to the continuance of the proceeding against thedead person and is heard by the Income Tax Officer in regardto the tax liability of the deceased and invites an assessmenton merits, such a legal representative must be taken to haveexercised the option of abandoning the technical plea that theproceeding has not been continued against him, although insubstance and reality, it has been so continued. 6.8 The learned counsel submitted that issuance of notice inthe name of the deceased being a procedural defect, can becured under section 292B of the Act and that on account ofsuch technical defect, the notice is not void. Moreover, thepetitioner having responded to the notice under section 148of the Act, the Assessing Officer is justified in continuing theproceedings against him. It was, accordingly, urged that thepetition being devoid of merits, deserve to be dismissed. 7. In the backdrop of the rival submissions, the facts asemerging from the record of the case may be adverted to.The impugned notice dated 28.03.2018 is issued to ShriJayantilal Harilal Patel, father of the petitioner, seeking toreopen the assessment for assessment year 2011-12 undersection 148 of the Income Tax Act, 1961. By a letter dated27.04.2018 addressed to the Income Tax Officer, thepetitioner informed him that his father Shri Jayantilal HarilalPatel has passed away on 24.06.2015, enclosing therewith adeath certificate and further being his son and in his capacityas legal heir, requested him to drop the proceedings.Thereafter, another notice dated 10.07.2018 came to beissued under sub-section (1) of section 142 of the Act to ShriJayantilal Harilal Patel calling upon him to furnish the detailsmentioned therein. In the annexure to the said notice, theassessee was called upon to show cause as to why penaltyproceedings under section 217F of the Act should not beinitiated in his case as he had not furnished return of incomein response to the notice under section 148 and stating thatthis may be treated as a notice under section 142(1) readwith section 129 of the Income Tax Act, 1961. 8. The petitioner addressed a letter dated 02.08.2018 to theIncome Tax Officer objecting to the notices issued undersection 148 as well as under section 142(1) of the Act anddrew his attention to the earlier letter dated 27.04.2018informing him about the death of his father and requestinghim to drop the proceedings. The attention of the Income TaxOfficer was further invited to the provisions of section 159 ofthe Act, to submit that the proceedings are required to beinitiated against a legal representative and not against thedeceased and, therefore, the notices issued to the deadperson are invalid. Reliance was placed upon the decision ofthis court in Jaydeep Kumar Dhirajlal Thakkar v. Income Tax Officer, (2018) 401 ITR 302 (Guj.) and Vipin Walia v. IncomeTax Officer, (2016) 381 ITR 19 (Delhi). Officer, (2018) 401 ITR 302 (Guj.) and Vipin Walia v. IncomeTax Officer, (2016) 381 ITR 19 (Delhi). 9. Thereafter, by a notice dated 03.08.2018 issued undersection 142(1) of the Act, the respondent called upon thepetitioner as legal heir of deceased Shri Jayantilal HarilalPatel to furnish the documents mentioned therein. In theannexure thereto, the petitioner is called upon to show causeas to why penalty proceedings under section 217F of the Actshould not be initiated in his case as he had not furnishedreturn of income in response to the notice under section 148of the Act and stating that this may be treated as notice undersection 142(1) read with section 129 of the Income Tax Act,1961. 10. By an order dated 14.08.2018, the respondent disposedof the objections raised by the petitioner stating that thenotice under section 148 of the Act was issued in the name ofthe deceased as the department was not aware of the deathof the assessee. It is only when the legal heir ShriChandreshbhai Jayantilal Patel (the petitioner herein) filed aletter dated 27.04.2018 along with a copy of the assessee'sdeath certificate, that this fact came to the notice of thatoffice. It is stated that since the assessee's son - legal heirhad received the notice (stated to have been receivedthrough the neighbour) and participated in the proceedings;the defect in issue of the notice is automatically cured.Reliance was placed upon the decision of the MadhyaPradesh High Court in the case of Kausalyabai v.Commissioner of Income Tax, 238 ITR 1008 (MP), whereinafter the death of the assessee, the notice was issued in thename of a person who was dead. The court observed that thewidow of such person participated in the assessmentproceedings and hence, the defect in the notice stoodautomatically cured. It is further stated in the order disposingof the objections that even if the notice dated 28.03.2018 isissued defectively in the name of the deceased assessee,then also, as per the provisions of section 292B of the Act,the same cannot be held to be invalid. 11. Insofar as the contention raised by the petitioner basedon section 159 of the Act is concerned, the Assessing Officerobserved that in this case, the assessee (the petitioner) had introduced himself as a son of the deceased assessee andas legal heir and has produced death certificate in responseto the notice issued under section 148 of the Act. Therefore,as the legal heir, upon being served with the notice undersection 148, has participated in the proceedings, thereassessment proceedings initiated are legal and valid.Reliance has been placed upon the decision of the MadrasHigh Court in the case of V. Ramanathan v. Commissioner ofIncome Tax, (1963) 49 ITR 881 (Madras). It is further statedtherein that it is not in dispute that Shri Chandreshbhai J.Patel is the legal heir of the deceased assessee; therefore,theproceedingsinitiatedagainstthelegalrepresentative/legal heir are valid and legal. 12. In the backdrop of the aforesaid facts, it is an admittedposition that the notice under section 148 of the Act wasissued to a dead person. The petitioner being the heir andlegal representative of the deceased, upon receipt of thenotice, immediately raised objection against the validity of theimpugned notice and did not submit to the jurisdiction of theAssessing Officer by filing a return of income, but kept onobjecting to the continuation of the assessment proceedingspursuant to the impugned notice. The Assessing Officer,however, instead of taking corrective steps under section292B of the Act and issuing notice to the heirs and legalrepresentatives, insisted on continuing with the proceedingspursuant to the impugned notice which was issued in thename of a dead person. Since strong reliance has beenplaced by the learned counsel for the respondent on theprovisions of section 2(7) and 2(29) read with sections 159and 292B of the Act, reference may be made to the saidprovisions, which read as under: "Section 2(7) "assessee" means a person by whom any taxor any other sum of money is payable under this Act, andincludes - (a) every person in respect of whom any proceeding underthe Act has been taken for the assessment of hisincome or of the income of any other person in respectof which he is assessable, or of the loss sustained byhim or by such other person, or of the amount of refunddue to him or to such other person;the Act has been taken for the assessment of hisincome or of the income of any other person in respectof which he is assessable, or of the loss sustained byhim or by such other person, or of the amount of refunddue to him or to such other person; (b) every person who is deemed to be an assessee underany provision of this Act;any provision of this Act; (c) every person who is deemed to be an assessee indefault under any provision of this Act;default under any provision of this Act; "Section 2(29) "legal representative" has the meaningassigned to it in clause (11) of section 2 of the Code of CivilProcedure, 1908; "159. Legal representatives. - (1) Where a person dies, hislegal representative shall be liable to pay any sum which thedeceased would have been liable to pay if he had not died, inthe like manner and to the same extent as the deceased. (2) For the purpose of making an assessment (including anassessment, reassessment or recomputation under section147) of the income of the deceased and for the purpose oflevying any sum in the hands of the legal representative inaccordance with the provisions of subsection (1).- (a) any proceeding taken against the deceased before hisdeath shall be deemed to have been taken against thelegal representative and may be continued against thelegal representative from the stage at which it stood onthe date of the death of the deceased; death shall be deemed to have been taken against thelegal representative and may be continued against thelegal representative from the stage at which it stood onthe date of the death of the deceased; (b) any proceeding which could have been taken againstthe deceased if he had survived, may be taken againstthe legal representative; and the deceased if he had survived, may be taken againstthe legal representative; and (c) all the provisions of this Act shall apply accordingly. (3) The legal representative of the deceased shall, for thepurposes of this Act, be deemed to be an assessee. (4) Every legal representative shall be personally liable forany tax payable by him in his capacity as legal representativeif, while his liability for tax remains undercharged, he createsa charge on or disposes of or parts with any assets of theestate of the deceased, which are in, or may come into, hispossession, but such liability shall be limited to the value ofthe asset so charged, disposed of, or parted with. (5) The provisions of sub-section (2) of section 161, section162 and section 167, shall, so far as may be and to the extentto which they are not inconsistent with the provisions of this section, apply in relation to a legal representative. (6) The liability of a legal representative under this sectionshall, subject to the provisions of sub-section (4) and sub-section (5), be limited to the extent to which the estate iscapable of meeting the liability. "292B. Return of income, etc., not to be invalid on certaingrounds. - No return of income, assessment, notice,summons or other proceeding furnished or made or issued ortaken or purported to have been furnished or made or issuedor taken in pursuance of any of the provisions of this Act shallbe invalid or shall be deemed to be invalid merely by reasonof any mistake, defect or omission in such return of income,assessment, notice, summons or other proceeding if suchreturn of income, assessment, notice, summons or otherproceeding is in substance and effect in conformity with oraccording to the intent and purpose of this Act." "292B. Return of income, etc., not to be invalid on certaingrounds. - No return of income, assessment, notice,summons or other proceeding furnished or made or issued ortaken or purported to have been furnished or made or issuedor taken in pursuance of any of the provisions of this Act shallbe invalid or shall be deemed to be invalid merely by reasonof any mistake, defect or omission in such return of income,assessment, notice, summons or other proceeding if suchreturn of income, assessment, notice, summons or otherproceeding is in substance and effect in conformity with oraccording to the intent and purpose of this Act." 13. Thus, the expression "assessee" includes every personwho is deemed to be an assessee under any provision of theAct. Sub-section (3) of section 159 of the Act, postulates thatthe legal representative of the deceased shall, for thepurposes of the Act, be deemed to be an assessee.Subsection (2) of section 159 of the Act says that for thepurpose of making an assessment (including an assessment,reassessment or recomputation under section 147) of theincome of the deceased and for the purpose of levying anysum in the hands of the legal representative in accordancewith the provisions of sub-section (1), - (a) any proceeding taken against the deceased before hisdeath shall be deemed to have been taken againstthe legal representative and may be continuedagainst the legal representative from the stage atwhich it stood on the date of the death of thedeceased; death shall be deemed to have been taken againstthe legal representative and may be continuedagainst the legal representative from the stage atwhich it stood on the date of the death of thedeceased; (b) any proceeding which could have been taken againstthe deceased if he had survived, may be takenagainst the legal representative; and the deceased if he had survived, may be takenagainst the legal representative; and (c) all the provisions of the Act shall apply accordingly. 14. Thus, clause (a) of sub-section (2) of section 159 of the Act provides for the eventuality where a proceeding hasalready been initiated against the deceased before his death,in which case such proceeding shall be deemed to have beentaken against the legal representative and may be continuedagainst the legal representative from the stage at which itstood on the date of the death of the deceased. In thepresent case, the proceeding under section 147 of the Acthad not been initiated against the deceased before his death,and hence, clause (a) would not be applicable in the facts ofthis case. -15. Clause (b) of subsection (2) of section 159 of the Actprovides that any proceeding which could have been takenagainst the deceased if he had survived may be takenagainst the legal representative. The present case would,therefore, fall within the ambit of section 159(2)(b) of the Actand, hence, the proceeding can be taken against the legalrepresentative. Now, it cannot be gainsaid that a proceedingunder section 147 of the Act of reopening the assessment isinitiated by issuance of notice under section 148 of the Act,and as a necessary corollary, therefore, for taking aproceeding under that section against the legalrepresentative, necessary notice under section 148 of the Actwould be required to be issued to him. In the present case,the impugned notice under section 148 of the Act has beenissued against the deceased assessee. In the opinion of this-court, since this is not a case falling under clause (a) of subsection (2) of section 159 of the Act, the proceeding pursuantto the notice under section 148 of the Act issued to the deadperson, cannot be continued against the legal representative. 16. On behalf of the revenue, it has been contended thatissuance of the notice to the dead assessee is merely atechnical defect which could be corrected under section 292Bof the Act. Reliance has been placed on the above referreddecisions of the Supreme Court as well as the High Courts forcontending that the proceedings would not be null and voidmerely because the notice has been issued against a deadperson as the legal representative had received the noticeand has objected to the validity of the notice and furthercontinuation of the proceedings. In the opinion of this court,here lies the distinction between those cases and the presentcase. In the relied upon cases, the legal representative, in response to the impugned notice, filed return of income andparticipated in the proceeding and then raised an objection tothe validity of the proceeding and, therefore, the court heldthat this was a case of waiver and that a technical defect canbe waived; whereas in this case, right from the inception thepetitioner has objected to the validity of the notice andthereafter to the continuation of the proceeding and has at nopoint of time participated in the proceeding by filing theincome tax return in response to the notice issued undersection 148 of the Act. Had the petitioner responded to thenotice by filing return of income, he could have been said tohave participated in the proceedings, however, merelybecause the petitioner has informed the Assessing Officerabout the death of the assessee and asked him to drop theproceedings, it cannot, by any stretch of imagination, beconstrued as the petitioner having participated in theproceedings. 17. Insofar as reliance placed upon section 292B of the Act isconcerned, the said section, inter alia, provides that no noticeissued in pursuance of any of the provisions of the Act shallbe invalid or shall be deemed to be invalid merely by reasonof any mistake, defect or omission in such notice if suchnotice, summons is in substance and effect in conformity withor according to the intent and purpose of the Act. 18. The question that therefore arises for consideration iswhether the notice under section 148 of the Act issuedagainst the deceased assessee can be said to be inconformity with or according to the intent and purposes of theAct. In this regard, it may be noted that a notice under section148 of the Act is a jurisdictional notice, and existence of avalid notice under section 148 is a condition precedent forexercise of jurisdiction by the Assessing Officer to assess orreassess under section 147 of the Act. The want of a validnotice affects the jurisdiction of the Assessing Officer toproceed with the assessment and thus, affects the validity ofthe proceedings for assessment or reassessment. A noticeissued under section 148 of the Act against a dead person isinvalid, unless the legal representative submits to thejurisdiction of the Assessing Officer without raising anyobjection. Therefore, where the legal representative does notwaive his right to a notice under section 148 of the Act, it cannot be said that the notice issued against the dead personis in conformity with or according to the intent and purpose ofthe Act which requires issuance of notice to the assessee,whereupon the Assessing Officer assumes jurisdiction undersection 147 of the Act and consequently, the provisions ofsection 292B of the Act would not be attracted. In the opinionof this court, the decision of this court in the case of RasidLala v. Income Tax Officer, Ward-1(3)(6) (supra) would besquarely applicable to the facts of the present case.Therefore, in view of the provisions of section 159(2)(b) of theAct, it is permissible for the Assessing Officer to issue a freshnotice under section 148 of the Act against the legalrepresentative, provided that the same is not barred bylimitation; he, however, cannot continue the proceedings onthe basis of an invalid notice issued under section 148 of theAct to the dead assessee. 19. In the facts of the presentcase, as noticed hereinabove, the notice under section 148 ofthe Act, which is a jurisdictional notice, has been issued to adead person. Upon receipt of such notice, the legalrepresentative has raised an objection to the validity of suchnotice and has not complied with the same. The legalrepresentative not having waived the requirement of noticeunder section 148 of the Act and not having submitted to thejurisdiction of the Assessing Officer pursuant to the impugnednotice, the provisions of section 292B of the Act would not beattracted and hence, the notice under section 148 of the Acthas to be treated as invalid. In the absence of a valid notice,the Assessing Officer has no authority to assume thejurisdiction under section 147 of the Act and, hence,continuation of the proceeding under section of the Actpursuant to such invalid notice, is without authority of law.The impugned notice as well as the proceedings takenpursuant thereto, therefore, cannot be sustained.” 7.In light of the aforesaid decision of this Court, the legalposition as settled by this Court in the case of ChandreshbhaiJayantibhai Patel (Supra) is that this Court has drawn distinctionbetween as to clause (a) of sub-section 2 of Section 159 andclause (b) of sub-section 2 of Section 159 of the Act. Clause (b) ofsub-section 2 of Section 159 permits initiation of any proceedings, which could have been taken against the deceased through legalrepresentative. However, in the case on hand, the impugnednotice dated 31.03.2021 under Section 148 of the Act has beenissued upon the deceased assessee, who had expired prior to theissuance of such notice. The case on hand does not fall underClause (a) of sub-section 2 of Section 159 of the Act and in suchcircumstances, even the proceedings pursuant to such notices assought to be initiated by the Assessing Officer cannot be continuedupon the deceased assessee, more particularly, in light of legaldictum laid down in the case of Chandrashbhai JayantibhaiPatel (Supra) is followed in the case of Bipinbhai Bachuji Vs.Income Tax Officer reported in 2020 (117) Taxmann.com 404(Gujarat). 8.Considering the record of the case, we further find theargument as may be available to the Revenue as regards theirregularity in issuance of the notice against the deceasedassessee is also taken care of by this Court in the case ofChandreshbhai Patel (Supra), more particularly, the relevantobservations made by this Court in paras 17 and 18 as well asSection 292B of the Act. 8.Considering the record of the case, we further find theargument as may be available to the Revenue as regards theirregularity in issuance of the notice against the deceasedassessee is also taken care of by this Court in the case ofChandreshbhai Patel (Supra), more particularly, the relevantobservations made by this Court in paras 17 and 18 as well asSection 292B of the Act. 9.In the peculiar facts and circumstance as emerged from therecords, more particularly upon perusal of the contents of theobjections cum reply filed by the writ applicant dated 10.04.2021( page no.13 ) and 15.12.2021 ( page no. 14), it transpires that thewrit applicant has not surrendered to the jurisdiction of theAssessing Officer by submitting return in response to theimpugned notices neither the jurisdictional Assessing Officer hasissued notice upon writ applicant as legal representativerepresenting estate of deceased assessee. Thus, we are of the view that the proceedings initiated by the Assessing Officer againstthe deceased assessee are not tenable in the eye of law and arerequired to be quashed and set aside. In the result, the impugnednotices are invalid and does not confer jurisdiction upon theAssessing Officer to proceed against the writ applicant. 10.In the result, the writ application succeeds and is herebyallowed. The impugned notices are hereby quashed and set asideand the consequential proceedings taken up pursuant to suchnotices also stands terminated. Rule is made absolute. (J. B. PARDIWALA, J) Y.N. VYAS (NISHA M. THAKORE,J)