Sumit Balkrishna Gupta v. Asstt. Commissioner Of Income Tax, Circle 16(2), Mumbai

IN THE HIGH COURT OF JUDICATURE AT BOMBAYWRIT PETITION NO. 3569 OF 2018 Sumit Balkrishna Gupta..Petitioner Versus Asstt. Commissioner of Income Tax, Circle 16(2), Mumbai..Respondents& Ors. ................... •Mr. Satish Mody a/w Ms. Aasifa Khan for the Petitioner Mr. Suresh Kumar for the RespondentsMr. Suresh Kumar for the Respondents ................... CORAM : AKIL KURESHI & M.S. SANKLECHA, JJ. DATE : FEBRUARY 15, 2019. P.C.: 1.At the request of the parties, this petition is taken upfor final disposal at this stage. 2.This petition under Article 226 of the Constitution ofIndia challenges a notice dated 29.3.2018 issued underSection 148 of the Income Tax Act, 1961 ("the Act" for short)and order dated 13.11.2018 rejecting the petitioner'sobjection to the above notice by respondent No. 1. Theimpugned notice seeks to reopen the assessment for theassessment year 2011-12. 3.The petitioner is the legal heir of late Mr. Balkrishna PGupta (the original assessee) who died on 9.6.2014. Thisafter having filed the return of income for assessment year2011-12 on 26.9.2011. 4.The petitioner's challenge to the impugned noticedated 29.3.2018 issued under Section 148 of the Act is onthe ground that it is without jurisdiction. This as the samehas been issued in the name of the dead person i.e thedeceased assessee Mr. Balkrishna P. Gupta. The aboveobjection to the impugned notice dated 29.3.2018 was putforth by the petitioner in its communication to the AssessingOfÏcer submitting that the impugned notice is null and void.However, the Assessing OfÏcer, by impugned order dated13.11.2018 rejected the petitioner's preliminary objectioninter alia on the following grounds: (a) the defect in the notice would stand rectified byvirtue of Section 292B of the Act;virtue of Section 292B of the Act; (b) the petitioner was not registered as a legal heir ofthe deceased assessee and thus, the notice issuedthe deceased assessee and thus, the notice issued in the name of the deceased person wasautomatically issued; and automatically issued; and Corrected Order As Per Speaking To The Minutes Order dated 7.3.2019 2 of 6 (c) the return of income for assessment year 2016-17was filed on 17.10.2016 in the name of the originalassessee Balkrishna Gupta who passed away on9.6.2014.was filed on 17.10.2016 in the name of the originalassessee Balkrishna Gupta who passed away on9.6.2014. 5.On perusal of the papers and proceedings and after hearing the parties, the following undisputed facts emerge:- (i) the return for assessment year 2011-12 was filedin the name of the deceased assessee on26.9.2011;in the name of the deceased assessee on26.9.2011; (ii) The original assessee passed away on 9.6.2014 i.eafter filing the return;after filing the return; (iii) the petitioner registered himself as the legal hair of the said deceased Balkrishna Gupta on30.1.2017 and the same was accepted by theportal of Income Tax;30.1.2017 and the same was accepted by theportal of Income Tax; (iv) the return of income for assessment year 2016-17though filed in the name of the original assessee,had been verified by the petitioner as a legal heir.In fact, in Writ Petition No. 3563 of 2018 filed bythe petitioner in respect of assessment year 2016-17, we have accepted by an order passed todaythough filed in the name of the original assessee,had been verified by the petitioner as a legal heir.In fact, in Writ Petition No. 3563 of 2018 filed bythe petitioner in respect of assessment year 2016-17, we have accepted by an order passed today that it is an inadvertent mistake; and (v) The assessment order for assessment year 2014-15 which had been passed on 30.12.2016 by theAssessing OfÏcer in the name of the petitioner aslegal heir of the deceased assessee. (iv) the return of income for assessment year 2016-17though filed in the name of the original assessee,had been verified by the petitioner as a legal heir.In fact, in Writ Petition No. 3563 of 2018 filed bythe petitioner in respect of assessment year 2016-17, we have accepted by an order passed todaythough filed in the name of the original assessee,had been verified by the petitioner as a legal heir.In fact, in Writ Petition No. 3563 of 2018 filed bythe petitioner in respect of assessment year 2016-17, we have accepted by an order passed today that it is an inadvertent mistake; and (v) The assessment order for assessment year 2014-15 which had been passed on 30.12.2016 by theAssessing OfÏcer in the name of the petitioner aslegal heir of the deceased assessee. 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 in thename of deceased assesee therein are concerned. It is notseriously disputed by the Revenue before us that a reopeningnotice issued in the name of a deceased person is null andvoid. This in view of the decision of the Gujarat High Court inthe case of Vikram Singh Vs. Union of India & Ors.[1]rendered on 22.1.2018, a decision of Delhi High Court in thecase of Rajendra Kumar Sehgal Vs. I.T.O., New Delhi[2]rendered on 19.11.2018 and the decision of Madras HighCourt in the case of Alamelu Veerappan Vs. I.T.O.,Chennai[3]rendered on 7.6.2018. These Courts had occasion 1[2018] 401 ITR 302 (Gujarat)2WP(C) NO. 11255/2017, CM No. 46017/20173WP No. 30060 of 2017 & WPM NO. 32631 of 20172WP(C) NO. 11255/2017, CM No. 46017/20173WP No. 30060 of 2017 & WPM NO. 32631 of 2017 to consider an identical issue of notice of reopening in thename of the deceased assessee and after considering thesame, came to the conclusion that the notice issued in thename of the dead person for reopening of assessment is nulland 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 a proceduralrequirement but is a condition precedent to the impugnednotice being valid in law. Thus, a notice which has beenissued in the name of the dead person is also not protectedeither by provisions of Section 292B or 292BB of the Act.This is so as the requirement of issuing a notice in the nameof correct person is the foundational requirement to acquirejurisdiction to reopen the assessment. This is evident fromSection 148 of the Act, which requires that before aproceeding can be taken up for reassessment, a notice must be served upon the assessee. The assessee on whom thenotie must be sent must be a living person i.e legal heir ofthe deceased assessee, for the same to be responded. Thisin fact is the intent and purpose of the Act. Therefore,Section 292B of the Act cannot be invoked to correct afoundational / substantial error as it is meant so as to meetthe jurisdictional requirement. Therefore, both the impugnednotice dated 29.3.2018 and the impugned order dated13.11.2018 are quashed and set aside. It is made clear thatthis order will not prohibit the Revenue from issuing a freshnotice for reassessment, if requirement of Sections 147/ 148of the Act are satisfied, including the limitation periodtherein. 8.Therefore, Petition disposed of in the above terms. [ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ]