2019 (2) TMI 1156

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....sessing Officer - respondent No. 1 rejecting the petitioner's preliminary objection that the impugned notice dated 31.7.2017 be withdrawn as it is null and void. This on the ground that the impugned notice dated 31.7.2017 has been issued in the name of the deceased assessee and not on his legal heir i.e the petitioner herein. 2. This petition relates to Assessment Year 2016-17. 3. Briefly stated, the facts giving rise to the petition are as under: 2.1 The petitioner is the son and the legal heir of the assessee Mr. Balkrishna Gupta who died on 9.6.2014. For the subject assessment year 2016-17, the petitioner being the legal heir of the deceased assessee Balkrishna Gupta filed a return of income on 17.10.2016 declaring total ....

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....as not registered with the database of the Income Tax Department. Thus, no fault in having issued the notice in the name of the deceased assessee; and (iii) The return for the assessment year 2016-17 was filed in the name of the deceased assessee. 4. It is in the backdrop of the above facts, the impugned notice dated 31.7.2017 and order dated 19.11.2018 have been challenged in this petition. The principal ground of challenge is that the impugned notice issued in the name of the dead person is nonest in law and does not bestow jurisdiction upon the Assessing Officer to carry out scrutiny assessment under Section 143(3) of the Act. 5. Mr. Mody, learned counsel in support of the petition submits as under:- (a) The impugned no....

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....on the part of the petitioner. However, mistake on the part of the petitioner when all facts are known to the respondents will not make the notice valid so as to give jurisdiction. 6. Mr. Suresh Kumar, learned counsel for the Revenue submits as under: (a) that this Court should not exercise its extra ordinary jurisdiction in view of the fact that the petitioner had filed return of income for the assessment year 2016-17 on 17.10.2016 in the name of the deceased assessee. Thus, the notice issued in the name of the deceased assessee; and (b) In any case, Section 292B of the Act would cure a defect of the notice being issued in wrong name under Section 143(2) of the Act. Thus, this Court should not interfere and the petitioner shoul....

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....er Section 143(2) of the Act as held by the Supreme Court in the case of ACIT V/s. Hotel Bluemoon (2010) 321 ITR 362 (SC). Thus, a notice in the name of wrong person would be no notice and the Assessing Officer would not acquire jurisdiction to proceed under Section 143(3) of the Act. 8. In fact, the Gujrat, Delhi and Madras High Court in the cases of Vikram Singh (supra), Rajendra Kumar Sehgal (supra) and Alamelu Veerappan (supra) respectively have held that a notice issued in the name of the deceased assessee is null and void. We note the fact that the above decisions were rendered in the context of notices issued for reopening of assessment under Section 148 of the Act, however, the ratio of the aforesaid decisions would equally apply....