Invalid Notice to Deceased Person Void Ab Initio: Legal Representative Must Be Served

The court held that the notice issued under Section 148 of the Income Tax Act to a deceased person was void ab initio. As per established precedent, a notice to a deceased person is invalid, and proceedings must be initiated against the legal representative. The court emphasized that Section 292B and Section 292BB could not cure the fundamental flaw of issuing a notice to a deceased person. Consequently, the court quashed the proceedings and orders based on the invalid notice, ruling them to be without jurisdiction.

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Issues Involved:
1. Validity of notice issued under Section 148 of the Income Tax Act to a deceased person.
2. Applicability of Section 292B and Section 292BB of the Income Tax Act in curing defects in the notice.
3. Jurisdiction of the Assessing Officer (AO) in the absence of a valid notice.

Issue-Wise Detailed Analysis:

1. Validity of Notice Issued Under Section 148 to a Deceased Person:

The primary issue in this case was whether the reopening of assessment under Section 148 of the Income Tax Act was void ab initio because the notice was issued to a deceased person. The court noted that the writ applicant, the son of the deceased assessee, received a notice dated 31.03.2021 addressed to his deceased father for the assessment year 2017-18. The writ applicant argued that the notice was void as it was issued to a deceased person, and hence, the proceedings should be dropped.

The court referred to the case of Chandreshbhai Jayantibhai Patel vs. Income Tax Officer, which established that a notice issued to a deceased person is invalid. The court emphasized that for proceedings to be valid, the notice must be issued to the legal representative of the deceased, not the deceased themselves. The court held that since the proceedings under Section 147 were not initiated against the deceased before his death, the notice issued to the deceased was invalid and could not be continued against the legal representative.

2. Applicability of Section 292B and Section 292BB in Curing Defects in the Notice:

The respondent argued that the defect in the notice could be cured under Section 292B of the Income Tax Act, which states that no notice shall be invalid merely due to any mistake, defect, or omission if it is in substance and effect in conformity with the Act. However, the court clarified that Section 292B does not apply to a situation where the notice itself is issued to a deceased person, as this is not a mere procedural defect but a fundamental flaw affecting jurisdiction.

The court also considered Section 292BB, which precludes an assessee from raising objections about the notice if they have participated in the proceedings. However, the court pointed out that Section 292BB applies only if the notice emanates from the department and there are defects in the manner of service. It does not cure the complete absence of a valid notice. The court cited the Supreme Court's decision in Commissioner of Income Tax vs. Laxman Das Khandelwal, which held that Section 292BB does not save the complete absence of a notice.

3. Jurisdiction of the Assessing Officer in the Absence of a Valid Notice:

The court observed that the issuance of a valid notice under Section 148 is a condition precedent for the Assessing Officer to assume jurisdiction for assessment or reassessment. The court held that issuing a notice to a deceased person is as good as not issuing any notice at all, making it a nullity and affecting the AO's jurisdiction. The court referenced multiple precedents, including Y Narayana Chetty v. ITO and CIT v. Kurban Hussain Ibrahimji Mithiborwala, which established that the absence of a valid notice deprives the AO of jurisdiction.

Conclusion:

The court concluded that the notice dated 31.03.2021 issued to the deceased assessee was void ab initio. Consequently, the proceedings and orders passed based on this invalid notice were without jurisdiction and were quashed and set aside. The writ application succeeded to the extent of invalidating the notice and the subsequent proceedings.

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