The Division Bench Of This Court Inurmilabenanirudhhasinji Jadeja v. C/Sca/17615/2021 Order Dated: 19/09/2022

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 17615 of 2021 ========================================================== VIKRANT ANTHONY JOSEPH VersusINCOME TAX OFFICER, WARD 1(2)(4) ========================================================== Appearance: MS NUPUR D SHAH(10233) for the Petitioner(s) No. 1MR.VARUN K.PATEL(3802) for the Respondent(s) No. 1,2 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIAandHONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 19/09/2022 ORAL ORDER (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Rule returnable forthwith. Learned advocate Mr.VarunPatel for the respondent authorities appear and waives serviceof Rule on behalf of the respondent. 1.1Heard learned advocate Ms.Nupur Shah for the petitionerand learned advocate for the respondent. 1.2Notice was issued in this petition on 13.12.2021 for finaldisposal. 2.The petitioner has prayed to set aside assessment orderdated 26.12.2018 passed by the Income Tax Authority, Ward-1(2)(4) Vadodara, passed under Section 144 read with Section147 of the Income Tax Act, 1961. It is also prayed to quash thedemand notice of even date, as well as order dated 24.3.2021 issued under Section 264 of the Income Tax Act (hereinafterreferred to as ‘the Act’). 3.The petitioner happens to be the son of deceased Smt.Rosamma Anthony Joseph. She died on 27.5.2014. The copy ofthe death certificate produced on record shows the factum ofdeath. It appears that on 27.3.2018 respondent No.1 Income TaxOfficer issued notice under Section 148 of the Act which wasaddressed in the name of deceased Smt. Rosamma Anthony.Notice was thus issued after four years to the dead person. On20.7.2018, the petitioner issued notice under Section 142(1) ofthe Act. It was stated that the petitioner communicatedrespondent No.1 orally and also responded to the notice on28.7.2018. In that communication dated 28.7.2018 the IncomeTax Authority was conveyed that the mother Rosamma has beensuffering from cancer and had passed away on 27.5.2014. Thecopy of the death certificate was also forwarded to the authority.It was mentioned in the said communication that she wasstaying at Pratapganj, Vadodara and that the petitioner did nothave any knowledge about the transactions and about thenominations of the bank account etc. The petitioner was also nothaving knowledge about the details of the account and that nodocuments was in the petitioner’s possession. 3.1On 5.9.2018 the respondent addressed letter to thepetitioner stating that in capacity of legal heir he was requiredto complete the procedure of assessment. Another notice wasissued to the petitioner on 2.11.2018 stating that therequirements were not complied with and that the factual detailssought for in the notice dated 20.7.2018 was not supplied. In furtherance of the notice, Income Tax Authority passed ex-parteorder dated 26.12.2018 under Section 144 read with Section 147of the Act mentioning about the non-compliance. The petitionerhad to file Revision Application under Section 264 of the Act. 3.2It appears that the correspondence was made by thepetitioner as the progress was not achieved. Finally withoutallowing the petitioner to represent his case, the respondentNo.2 issued an order dated 24.3.2021, by which order dated26.12.2018, which was passed by respondent No.1, came to beupheld. 3.3The main ground urged by the petitioner was that thenotice was issued to the mother who was dead person and thatthe notice to the dead assessee was invalid and illegal. It wassubmitted that despite intimation given to the authorities aboutthe death, they proceeded against the dead person to frameassessment. 4.The question whether the income tax authorities cansubject a dead person to assessment proceeding, is no longerres integra. 3.2It appears that the correspondence was made by thepetitioner as the progress was not achieved. Finally withoutallowing the petitioner to represent his case, the respondentNo.2 issued an order dated 24.3.2021, by which order dated26.12.2018, which was passed by respondent No.1, came to beupheld. 3.3The main ground urged by the petitioner was that thenotice was issued to the mother who was dead person and thatthe notice to the dead assessee was invalid and illegal. It wassubmitted that despite intimation given to the authorities aboutthe death, they proceeded against the dead person to frameassessment. 4.The question whether the income tax authorities cansubject a dead person to assessment proceeding, is no longerres integra. 5. The Division Bench of this Court inUrmilabenAnirudhhasinji Jadeja Vs. Income Tax Officer, Ward 7(1)(3) [(420) ITR 226], addressed the very issue. The Courtconsidered various decisions of the Supreme Court and the HighCourt, touching the aspects of the issue, held that there cannotbe any assessment against a dead person. In that case also,notice was issued to the dead assessee under Section 148 of the Act. 5.1While holding that the proceedings would be nullityagainst the dead assessee, the rider was provided that in caseswhere legal representatives participate in the assessment or re-assessment proceedings, the proceedings may be maintainedand continued. It was at the same time held that mere intimationby the legal representative to the assessing officer that thenoticee is dead, would not amount to legal representation onparticipation in that proceedings. 5.2In Urmilaben Anirudhhasinji Jadeja (supra), while therevenue raised various contentions seeking a proposition thatthe proceedings against the dead assessee would be maintained,the Court negatived them all. 5.3One of the contention was based on Section 292BB of theAct. The said provision contemplates that the notice shall bedeemed to be valid in certain circumstances. It mentions thatwhere an assessee has appeared in any proceedings orcooperated in any inquiry relating to assessment or re-assessment, it shall be deemed that a notice required to beserved under the Act has been duly served upon him. Such, it isprovided, shall be precluded by taking any objection about theservice of the service of the notice and manner of the service. 5.4The Division Bench held that the said provision would notapply in cases where notices are gone to the dead assessee andthe proceedings are started against a dead assessee. It wasobserved and held in paragraph 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 same isin conformity with or according to the intent andpurpose of the Act, the notice cannot be termedas invalid. To put it in other words, the noticeshould be in conformity with and in accordancewith the intent and purpose of the Act. In ouropinion, a case in which notice is issued to adead person could be termed as nullity. It issomething like a safeguard passing a decreeagainst a dead person which cannot be executedthrough the legal representatives of thejudgment-debtor." 5.4.1The continuation of proceedings pursuant to noticeunder Section 148 of the Act was held to be without authority oflaw by the Court stating 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 same isin conformity with or according to the intent andpurpose of the Act, the notice cannot be termedas invalid. To put it in other words, the noticeshould be in conformity with and in accordancewith the intent and purpose of the Act. In ouropinion, a case in which notice is issued to adead person could be termed as nullity. It issomething like a safeguard passing a decreeagainst a dead person which cannot be executedthrough the legal representatives of thejudgment-debtor." 5.4.1The continuation of proceedings pursuant to noticeunder Section 148 of the Act was held to be without authority oflaw by the Court stating thus - "...the notice under section 148 of the Act, whichis a jurisdictional notice, has been issued to adead person. Upon receipt of such notice, thelegal representative has raised an objection tothe validity of such notice and has not compliedwith the same. The legal representative nothaving waived the requirement of notice undersection 148 of the Act and not having submittedto the jurisdiction of the Assessing Officerpursuant to the impugned notice, the provisionsof section 292B of the Act would not beattracted and hence, the notice under section148 of the Act has to be treated as invalid. In theabsence of a valid notice, the Assessing Officerhas no authority to assume the jurisdictionunder section 147 of the Act and, hence,continuation of the proceeding under section147 of the Act pursuant to such invalid notice, iswithout authority of law. The impugned noticeas well as the proceedings taken pursuantthereto, therefore, cannot be sustained." 5.5Thus, the law is well settled that unless the heirs and legalrepresentatives of the deceased assessee could be said to have been submitted to the jurisdiction of the assessing officer andhave participated in the assessment or re-assessmentproceedings, notice to the dead assessee and commencement ofassessment or re-assessment proceedings against dead person isrendered null and void. 5.6The attempt on the part of the income tax authorities tostart proceedings for assessment or re-assessment against thedead person is viewed not merely as procedural irregularity butit is stated as jurisdictional defect. 5.7There cannot be an assessment against the dead person.As noticed above, the provisions of Section 292B of the Act arealso not applicable and no assessment can be framed against anon-existing entity or a person who has died. 6.Recapitulating the facts of this case, the mother of thepetitioner Rosamma died as back as on 27.5.2014. The petitionerintimated the authorities about the death and also forwarded thedeath certificate. He also conveyed that he was not the only heirand was not having knowledge about the transactions and theincome affairs of the mother. Despite that the Income TaxAuthority proceeded to issue notice and passed the assessmentorder. 6.1There was no circumstance could be pointed out by therespondent nor it emerged from the facts on record that thepetitioner in any way submits about the jurisdiction of theIncome Tax Authority or sequised in the proceedings. Intimationwas given about the death of the mother- the assessee but the authorities did not pay heed. The position of law emanating fromthe decision of this court in Urmilaben Anirudhhasinji JadejaVs. Income Tax Officer, Ward 7(1)(3) [(420) ITR 226](supra) and also in Himadri Kandarp Mehta L/H Of LateKandarp Yashashvibhai Mehta Vs. The Income Tax Officerbeing Special Civil Application No.16323 of 2019 decided as perthe judgment dated 1.8.2022, could not be disputed by learnedadvocate for the respondent. 6.2In view of the above, the present petition deserves to beallowed. It is hereby allowed by holding that the impugnednotice, which was against the dead assessee could not besustained. authorities did not pay heed. The position of law emanating fromthe decision of this court in Urmilaben Anirudhhasinji JadejaVs. Income Tax Officer, Ward 7(1)(3) [(420) ITR 226](supra) and also in Himadri Kandarp Mehta L/H Of LateKandarp Yashashvibhai Mehta Vs. The Income Tax Officerbeing Special Civil Application No.16323 of 2019 decided as perthe judgment dated 1.8.2022, could not be disputed by learnedadvocate for the respondent. 6.2In view of the above, the present petition deserves to beallowed. It is hereby allowed by holding that the impugnednotice, which was against the dead assessee could not besustained. 7.As a result of above, the petition is allowed in terms ofprayer 11.1. The impugned order dated 26.12.2018 passed byrespondent No.1 under Section 144 read with Section 147 of theIncome Tax Act is set aside. The demand notice of even date isalso set aside. Further quashed is order dated 24.3.2021 underSection 264 of the Act. The assessment proceedings and theresultant assessment order are set aside having been passedagainst the dead person. Rule is made absolute to the aforesaid extent. (N.V.ANJARIA, J) (BHARGAV D. KARIA, J)