TaxTMI 
TaxTMI 
2010 (12) TMI 623
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....ed to me, it is necessary for me to refer to the brief facts of the case even at the cost of repetition. 3. The facts of the case are that Shri Sikandar Lal Jain filed his return of income on 29.10.1998 for A.Y. 1998-99. Thereafter, he died on 17.11.2002. Subsequently, the Assessing Officer received information from Addl. DIT (Inv.), Agra that Shri Sikandar Lal Jain had obtained accommodation/bogus entries regarding sale proceeds of shares during the assessment year 1998-99 from M/s. Yadav and Co., New Delhi. The Assessing Officer, therefore, issued a notice u/s. 148(1) of the Income-tax Act in the name of Shri Sikandar Lal Jain on 21.03.2005. The time-limit for issuance of notice u/s. 148 as contemplated u/s. 149 of the Act had expired on 31.03.2005 in the present case. Shri Sikandar Lal Jain was admittedly died on 17.11.2002 prior to taking the action u/s 147 by the AO. The proceedings u/s 147 were initiated in the name of the dead person consequently, even the notice u/s 148 was issued in the name of dead person recording reasons to believe also in the name of dead person. The notice was served on Smt. Vandana Jain, the daughter-in-law of the deceased on 30.05.2005 who w....
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....Shri Sikandar Lal Jain, and its photocopies served on the legal heirs of the deceased alongwith office letters dated 23.12.2005 of the AO addressed to the legal heirs beyond the period of limitation, should be deemed to be a valid service of notice for acquiring jurisdiction u/s. 147 of the Act or not. 5. The learned DR supported the order of the learned Accountant Member by pointing out that the proceedings u/s. 147 were validly initiated. The notice has been served on the legal heir, Mr. Neeraj Jain on 30.03.2005, which is apparent from page 2 of the assessment order. Our attention was also drawn towards the copy of the notice placed on record. The photocopies of the said notice were also served on all the legal heirs when Smt. Vandana Jain pointed out to the Assessing Officer. The Assessing Officer has given the clear cut finding that the service of the notice by the assessee before the CIT(A) has not been disputed. The issuance of the notice within the limitation period is essential but the service of the notice within the period of limitation is not essential. In this regard reliance was placed on the decision of Hon'ble Supreme Court in the case of R.K. Upadhyaya v. S....
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.... deceased for A.Y. 2003-04. The proceedings u/s. 147 were initiated against the name of the assessee, a dead person on 21.03.2005. The same very Assessing Officer has issued refund for the assessment year 2003-04 on 24.08.2004 in the name of the legal heir. The notice was received by the daughter-in-law of the deceased w/o Shri Neeraj Kumar Jain. She immediately mentioned on the notice that her father-in-law had already expired. For this attention was drawn to the copy of the notice available at page 119 of the paper book. The photocopies of the notice were served on all the legal heirs only on 23.12.2005 not prior to that. The service of notice on Mrs. Vandana Jain is not valid service as she is neither the legal heir of the deceased nor authorized in this regard. My attention was drawn towards pages 41 to 42 of the paper book which contain the remand report of the Assessing Officer. The learned Accountant Member has wrongly observed in para 3 of his proposed order that notice was served on Shri Neeraj Jain on 30.03.2005. The remand report does not speak of this fact at all. The service of the notice is essential for assuming the jurisdiction u/s. 147 of the Income-tax Act. Even o....
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....he dead person by referring to para 3 of the decision. The facts involved in that case are different. Referring to the decision in the case of Smt. Kaushalya Bai v. CIT (supra), it was pointed out that this decision relates to the M.P. High Court. In that decision, no doubt, the notice was issued in the name of dead person, but the widow of the deceased participated in the proceedings and, therefore, the Hon'ble High Court held that the defect, if any, stands automatically cured. In the case of the assessee, the legal heir did not participated in the proceedings, rather the assessment was completed u/s. 144 of the Income-tax Act. It was pointed out that Hon'ble M.P. High Court in the case of Shaikh Abdul Kadar v. ITO, 34 ITR 451 (MP.) has clearly laid down the proposition of law that the notice issued in the name of dead person is invalid and no assessment can be made on the basis of such notice. This decision of the M.P. High Court has not been referred to by the Hon'ble M.P. High Court in its subsequent decision in the case of Smt. Kaushalyabai v. CIT (supra). It was vehemently contended that so far the validity of notice is concerned, the notice is invalid and the case of the as....
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....scaped assessment. Explanation 1:- Production before the Assessing Officer of account books or other evidence from which material evidence could with due diligence have been discovered by the Assessing Officer will not necessarily amount to disclosure within the meaning of the foregoing proviso. Explanation 2:- For the purposes of this section, the following shall also be deemed to be cases where income chargeable to tax has escaped assessment, namely:- (a) where no return of income has been furnished by the assessee although his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax ; (b) where a return of income has been furnished by the assessee but no assessment has been made and it is noticed by the Assessing Officer that the assessee has understated the income or has claimed excessive loss, deduction, allowance or relief in the return ; (c) where an assessment has been made, but- (i) income chargeable to tax has been under assessed; or (ii) such income has been assessed at too low a rate ;....
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....sp; (b) subsequently a notice has been served under clause (ii) of sub-section (2) of section 143 after the expiry of twelve months specified in the proviso to clause (ii) of sub-section (2) of section 143, but before the expiry of the time-limit for making the assessment, reassessment or recomputation as specified in sub-section (2) of section 153, every such notice referred to in this clause shall be deemed to be a valid notice. Explanation:- For the removal of doubts, it is hereby declared that nothing contained in the first proviso or the second proviso shall apply to any return which has been furnished on or after the 1st day of October, 2005 in response to a notice served under this section. (2) The Assessing Officer shall, before issuing any notice under this section, record his reasons for doing so. Time limit for notice. 149. (1) No notice under section 148 shall be issued for the relevant assessment year,- (a) if four years have elapsed from the end of the relevant assessment year, unless the case falls under clause (b); (b) if four years, but not more than six years, have elapsed from the end of the relevant assessment yea....
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....per book. The learned AR before me vehemently contended that the notice since was not served on all the legal heirs prior to 31.03.2005, therefore, the proceedings initiated u/s. 147 with the of said notice u/s. 148 are not valid. Sub-section (2) of section 148 requires that the Assessing Officer must first record his reasons before he formally issues the notice under this section. If the word "issuing" in this section is to be read as "serving", in my opinion, it would lead to an absurdity. This would imply that the Assessing Officer may record his reasons after issuing notice, but before serving it on the assessee. I am of the opinion that the legislature never intended any such strange results. In this regard, reference may be made to section 149(3) itself. There in the first line itself, the word employed is "served" whilst in the ultimate line, the word employed is "issued". Thus, in the same very sub-section, the legislation itself has used these words as distinct and separate. I think that the legislation would have not used different words in the same very sub-section if it was intended to mean the same thing. Yet, again, the word "issued" has been employed in both the sub-....
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....ion 149, it would tantamount to put a premium on the tax evasion by the assessees whose case is to be reopened for the escaped assessment. The legislature, therefore, with its wisdom has made the provisions that the Assessing Officer must apply his mind and direct the issue of the notice within the time fixed from the last date of the relevant assessment order. The assessee who will be abating the tax will always try to avoid the service of the notice by hook or crook so that he can take plea subsequently that the proceedings initiated are invalid and the notice could not be served within the prescribed time-limit. It was with this object, I am of the opinion that the legislature did not use the word "served" employed in the old section 34 and specifically used the word "issued" alone in section 149 of the Income-tax Act. If the contention of the learned AR is accepted that section 149 requires service of the notice within the time prescribed, it would tantamount to be running against the intended mandate of the legislature and accepting a construction which may defeat and frustrate the very object of bringing section 147 into the statute for curbing the tax evasion. I have gone th....
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....ssee before the CIT(A). Now at this stage, the learned AR cannot be permitted to take the plea that the finding given by the Assessing Officer that the notice was served on the son of the assessee Shri Neeraj Jain on 30.03.2005 is incorrect. Even otherwise also, the copy of the notice was duly served on 23.12.2005 on all the legal heirs of the deceased. I do agree with the learned AR that the notice must be served on all the legal heirs and the assessment framed without the service of notice on all the legal heirs of the assessee is invalid, but this is not the case of the assessee here. To that extent, I agree with the learned Accountant Member that the notice u/s. 148 must be issued within the limitation period and section does not require that it must be served within the limitation period. 12. Now coming to the second issue whether the notice issued in the name of a dead person is a valid notice or not. Can the proceedings be initiated against a dead person? The facts of the case clearly speak that the notice u/s. 148 was issued in the name of the assessee who has already expired on 17.11.2002. Shri Sikandar Lal Jain, the assessee, has submitted the return upto the asse....
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....tives of the assessee but issued in the name of an individual who has already expired on 17.11.2002. Therefore, it cannot be said that there was an individual in existence in the name of Shri Sikandar Lal Jain in whose name notice is issued as on the date when the proceedings u/s 147 was initiated or the notice u/s 148 was issued. Under the 1922 Act, the word "individual" did not necessarily refer to a natural human being but also included a juristic person like a Hindu idol, but under the 1961 Act definition, there is a separate appropriate specification "every artificial juridical person......". Similar view has been taken by the Hon'ble Andhra Pradesh High Court in the case of Deccan Wine and General Stores v. CIT, 106 ITR 111 (AP), in which it was categorically held that an individual under the Income-tax Act, 1961 means only a human being. The issuance of a valid notice is a foundation for the validity of the re-assessment. There is a clear cut distinction between the precedent and procedure. The defect in the procedure will not normally amount to lack of jurisdiction. The notice prescribed u/s. 148 for the purpose of initiation of re-assessment proceedings is not a mere proce....
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....rdingly these cases are discussed in the following paragraphs as under: (A). The decisions relied on by the assessee: (i). Shaikh Abdul Kadar v. ITO, 34 ITR 451 (MP): 13. In this case it was held: "Under section 24B(2) of the IT Act, a notice under section 34 in respect of the income of a deceased assessee has to be issued to his executor, administrator or legal representatives. In the present case the notice and all communications were addressed to S who, admittedly, was dead at that time, and had been so dead for a long time. The ITO knew from the records of his own office that S was not living, and he also knew who his legal representatives were, because the legal representatives had been assessed in subsequent years, taking into account the assets of the deceased S. In these circumstances, it was incumbent on the ITO to cause the notice to be issued to the legal representatives of S. With the knowledge that the original assessee was dead, and that he was succeeded by his sons and daughter, there was no point in sending a notice as well as all the communications in the name of the dead person. The notice under section 34 is the foundation of juris....
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....1988 was issued to Smt. J.N.W., and received on her behalf on 19th March, 1988. At this point of time, i.e., on 14th March, 1988, the ITO was expected to be aware of the fact that Smt. J.N. W. was no more alive. The intimation of her death was given to the ITO as early as on 30th Oct., 1987 and the ITO had taken cognizance of the fact that the assessee was dead, as can be seen from the fact, that the ITO had described the assessee as Smt. J.N.W. (deceased). Thus, although the ITO was aware of the death of the assessee as early as in Nov.,1987,he chose to issue the notice under s. 148 on 14th March, 1988 on Smt. J.N.W. and not on her legal heir. Thus, there was admittedly a fundamental defect in the notice which was issued on a dead person. It was issued by the ITO on a person who was dead and of whose death the ITO had prior intimation and knowledge. A notice which is issued in the name of a person who is known to be dead is purposeless and defective and no valid assessment can be made on the strength of such a notice. Before an ITO can proceed under section 147 with reference to an assessment of an assessee who dies before a notice under that section is served on him, it i....
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....me. In this case, the Tribunal not only held that the notice issued in the name of the deceased-asses see is invalid, but also took the view that even if the legal heirs have participated in the proceedings initiated u/s. 147 by issue of notice in the name of the dead person, the assessment so framed cannot be a valid assessment. Section 292B cannot cure the defect. Issuance of a valid notice is the foundation for reassessment proceedings. In the case before me also, the undisputed fact is that the notice had been issued to a dead person and copy of the same notice was served on the legal heirs subsequently, the fact remains no notice issued to the legal heirs of the dead person. A dead person cannot be an assessee and therefore, in absence of the notice issued to the legal heirs, there cannot be the assumption of a valid jurisdiction u/s. 148 of the Income-tax Act. Service of the notice to the legal heirs will not give the valid jurisdiction until and unless the notice is issued to the legal heirs. (iii) CIT v. Suresh Chandra Jaiswal, 325 ITR 563 (All.)325 ITR 563: 17. In this case it was held - "that the notice under section 148 of the Income-tax Act, 1961....
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....292B of the Act, if it was not served in accordance with the provisions of the Act." 20. In this case, the jurisdictional High Court has laid down the proposition of law that the notice contemplated u/s. 148 is a jurisdictional notice and any defect therein cannot be cured u/s. 292B of the Income-tax Act, if it was not served in accordance with the provisions of the Act. The facts of this case are different to the facts of the case before me. In this case, there was a joint Hindu family consisting of two brothers and sons of the pre-deceased brother. One of the brothers died leaving no male descendant. The business of the family came to a close and a separation took place between the two branches; one consisting of G and his sons and the other consisting of JBG and sons. A dispute arose among the family members which led to the filing of a suit. The arbitrator gave an award which was confirmed by the Supreme Court on July 18, 1973. The effect of this award was that the family was disrupted on the above date. The Assessing Officer came to the conclusion that there had been escapement of capital gains from tax in the assessment year 1964-65 and accordingly, initiated proceedi....
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....be a person u/s 2(31) in the status of an individual. Therefore, to that extent, this decision supports the case of the assessee. (vi) Smt. Kesar Devi v. CIT, 321 ITR 344 (Raj.): 23. In this case, the Hon'ble Rajasthan High Court has held as under: Head Notes - Assessment- Validity- Notice issued to dead person- A case cannot be decided in the absence of the affected party- Therefore, notice to the dead person and consequent assessment were illegal. 24. I noted that the facts in this case are little different, as in this case, the assessment order as well as notice of demand were also made in the name of the dead person. Even the notices were not served on all the legal heirs within the limitation period as stipulated u/s. 149. Under these facts, the Rajasthan High Court has held the assessment to be invalid. I noted that this case is not strictly applicable to the case of the assessee. It appears that the decision of Hon'ble Supreme Court in the case of R.K. Upadhyaya v. Shana Bhai P. Patel, 166 ITR 163 (SC) has not been referred to before the Rajasthan High Court and therefore, the Hon'ble Court took the view that the notice u/s. 148 has to be serv....
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....not been disputed by the assessee. Even the notice on Shri Neeraj Kumar Jain, son of the deceased was served on him on 30.03.2005 itself. (viii) CIT v. Amarchand N. Shroff, 48 ITR 59 (SC): 27. In this case, the Hon'ble Supreme Court has laid down following proposition of law: "Section 24B does not authorize levy of tax on receipts by the legal representative of a deceased person in the years of assessment succeeding the year of account being the previous year in which such person died." 28. This case, in my opinion is not applicable to the facts of the case before me. This case relates to the interpretation of section 24B under 1922 Act. In this case, Hon'ble Supreme Court held that section 24B of 1922 Act does not authorize levy on the receipt by the legal representative in succeeding years. In that case, the dispute does not relate to the validity of reassessment proceedings initiated against the deceased person by issuing the notice addressed to the deceased person. (ix) Chooharmal Wadhuram v. CIT, 80 ITR 360 (Guj.): 29. In this case, Hon'ble Gujrat High Court has held as under: Head Notes: "Liability in special cas....
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....tegorically held that the re-assessment proceedings were null and void, as the notice u/s. 148 was not served on all the legal heirs of the deceased assessee. In the case before me, this is an admitted fact that the copy of the notice issued to dead person were served on all the legal heirs. Therefore, this decision, in my opinion, is not applicable to the case before me. (xi) ITO v. Ganga Prasad Jaiswal 39 ITD (All.) 444: 33. In this case, Allahabad Bench of this Tribunal has held as under: "9. We have heard the parties at length and we are of the opinion that the order passed by the learned CIT(A) was perfectly correct and justified. The Hon'ble Allahabad High Court in the case of Madanlal Agrawal and in the case of Smt. Phoolmati Devi had very clearly held that the notice should be properly and legally issued and if the very issue of the notice is not in accordance with law or the notice itself is bad in the eyes of law, then no assessment framed thereafter can be said to be a proper assessment. The Hon'ble Allahabad High Court in the case of Ishwar Singh and Sons (supra) has also held that issue of valid notice under section 148 is a condition precedent ....
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....ir was his widow Smt. Tara Devi. The notice was served by the Inspector and thus the knowledge of the said information now cannot be denied by the Department as it had been received and communicated to the Inspector who had gone to effect the service on 29th March, 1985 itself, while there was still three days left to amend the mistake and issue a fresh notice on the legal heir within the limitation prescribed under the law. Despite this information, no action was taken by the Department and now the Revenue tries to take shelter under section 292B. Section 292B does not protect the assessments which are void ab initio. It is only an enabling provision just to condone the mistake, defect or omission in the return of income, assessment or notice or summons or other proceeding if they are in substance and effect in conformity with the law. The very wordings of the section suggests that it has been introduced just to remove the technical difficulties that arose due to human error but it does not help the Revenue in situations as that of the present case. Here the issue of the notice is a condition precedent and its proper service is equally important to bestow jurisdiction on the ITO t....
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....F). It was held in this case that the two were absolutely distinct entities in law, and a valid assessment could not be made on the assessee-HUF as no notice had been issued to it under section 148 of the Income-tax Act. (xii) CIT v. Rakesh Kumar, Mukesh Kumar L/H of Late Mohar Singh, 313 ITR 305(PandH): 35. In this case, Punjab and Haryana High Court has held as under: Head notes: "Search and seizure - Block assessment - Validity vis-a-vis search warrant in the name of a dead person - Search warrant being issued in the name of a dead person and Panchnama also prepared in the name of dead person, the search and the authorization were invalid and void ab initio and therefore block assessment under section 158BC r/w s. 144 in pursuance thereof is also invalid -Search warrant in the name of a dead person being against the law of natural justice, no valid assessment could be based upon it." 36. This decision in my opinion, although not applicable to the facts of the case before me, but it supports the proposition of law that no notice or proceedings can be initiated in the name of a dead person. (B). Decisions relied upon by the Revenue: ....
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....d be treated to be a procedural irregularity because the widow of the deceased participated in the proceedings. Due to her participation, the defect, if any, stands automatically cured. The question whether a dead person can be an assessee was not before the High Court and Hon'ble High Court has not decided that question. This decision is applicable to the extent that the notice is issued in the name of dead person. But in the case before me, the legal representative has not participated in the re-assessment proceedings, rather the assessment order was passed u/s. 144 of the Income-tax Act. I also noted that although this decision was given by the Division Bench of Madhya Pradesh High Court, but Hon'ble High Court did not refer to the decision of the M.P. High Court in the case of Shaikh Abdul Kadar v. ITO, 34 ITR 451 (MP.). That decision was also given by the Division Bench of M.P. High Court and has been discussed by me earlier, on which the learned AR has relied. Now the two decisions of M.P. High Court are taking contrary view. I have already in the preceding paragraph discussed that issue that a dead person not being individual cannot be an assessee. Only the legal heirs on hi....
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....if such executor, administrator or other legal representative were the assessee. As observed by the president of the Tribunal in his judgment, the Income-tax officer made no attempt to observe the provisions of that sub-section. He served the notice on the present Maharaja, without showing in what capacity. But the Tribunal have found, as a fact, that the present Maharaja is the legal representative of the deceased Maharaja, and although it would obviously have been better so to describe him in the notice, I am not prepared to say that the notice was bad, if it was served on the legal representative, merely because it omitted to state that it was served in that capacity. It should have been stated that it was served on the legal representative of the late Maharaja, and that the return required was of the late Maharaja's income. It was not so stated, and the present Maharaja himself may have had taxable income for the years in question; but I think there is a good deal of force in the contention of the Tribunal that any irregularities in this respect were waived by the Maharaja because returns of the late Maharaja's income were made by the Foreign Minister on behalf of the Maharaja,....
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....hat the Bombay High Court in the case of Thana Electricity Supply Ltd. 206 ITR 727 has laid down categorically with regard to the precedent that the decision of one High Court is neither binding precedent for another High Court nor for Courts or Tribunals outside its territorial jurisdiction. In the said judgment, Hon'ble High Court after discussing the various judgments of Hon'ble Supreme Court hold the following proposition of law on the binding force of a judgment at page 738 of the judgment: "(a) The law declared by the Supreme Court being binding on all courts in India, the decisions of the Supreme Court are binding on all courts, except, however, the Supreme Court itself which is free to review the same and depart from its earlier opinion if the situation so warrants. What is binding is, of course, the ratio of the decision and not every expression found therein. (b) The decisions of the High Court are binding on the subordinate courts and authorities or Tribunals under its superintendence throughout the territories in relation to which it exercises jurisdiction. It does not extend beyond its territorial jurisdiction. (c) The position in regard to the ....
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....edent on other High Courts or on any subordinate courts or Tribunals within their jurisdiction. That status is reserved only for the decisions of the Supreme Court which are binding on all courts in the country by virtue of article 141 of the Constitution." 44. Thus, the Mumbai High Court in the aforesaid judgment has clearly laid down that the decision of the non-jurisdictional High Court is not binding. In order to understand and appreciate the binding force of a decision, it is always necessary to see what were the facts of the case and what was the point which had to be decided. A precedent is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is called ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of law as regards the world at large. 'The only use of authorities or decided cases' is the establishment of some principle, which the judge can follow out in deciding the case before him'. The only thing in a judge's decision binding as an authority upon a subsequent judge is the principle upon which the ca....
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....tly relate to the issue of the notice on the dead person, but cannot be binding precedent on the Tribunal as this judgment has been rendered without noticing the previous judgment and is considered to have been rendered per incurium. The Hon'ble Madhya Pradesh High Court in the case of Jabalpur Bus Operators Association v. State of MP, AIR 2003 MP 81, decided the question, which view is to be followed by the High Court as a binding precedent when there are conflicting views between the decisions rendered by the co-equal benches of the Apex Court. The court noted the approach of various high Courts on the issue and lack of the decision on the issue by the Supreme Court. The two trends that were noticed by the Hon'ble High Court were (a) following the latter case and (b) following the case which in the judgment of the High Court was correct. Ultimately the court held that in case of conflict between decisions of the Apex Court, benches comprising of equal number of judges, the decision of earlier bench is binding unless explained by the latter bench of equal strength in which case the later decision is binding. On the basis of law so pronounced by Hon'ble Madhya Pradesh High Court, i....
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....d out by the Accountant Member in his dissent. The High Court, therefore, had no occasion to examine the question whether the decisions of the Karnataka High Court and the Supreme Court in Kwality Biscuits (supra), rendered in the context of section 115J which did not have a sub-section similar to sub-section (4) of section 115JA, would still be applicable as binding precedent in a case which arose under section 115JA." 45. In view of my aforesaid discussion and the fact that the notice issued in the name of the dead person is invalid, I decide the questions referred to me as under: (i) The assessment order passed, in view of the issue of notice on the dead person, is void and the CIT(Appeals), in my opinion, was correct in law and in facts holding the assessment order as void. (ii) The CIT(A), in my opinion, was not correct in law in concluding that the notice u/s. 148 has not been served on proper person, as section 149 only requires the issuance of the notice within the limitation period and notice can be served on the proper persons subsequently. 46. Now, the matter shall go to the regular Bench. P.K. Bansal, Accountant Member:- 1....