TaxTMI 
TaxTMI 
2022 (5) TMI 931
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.... order. The assessee has challenged the assumption of jurisdiction by the PCIT under Section 263 of the Act on the ground that; (i) the initiation of revisional proceedings and consequential order under Section 263 of the Act is in the name of a deceased person is a nonest and unsustainable in the eyes of law (ii) the assessment order under revision is neither erroneous nor prejudicial to the interest of the Revenue and thus revisional commissioner was not competent to exercise revisional powers. 3. Briefly stated, return of the assessee under Section 143(3) r.w. Section 147 was assessed at Rs.1,35,682/-. Thereafter, the PCIT called for the assessment records and opined that the assessment order so passed is erroneous in so far as prejudicial to the interest of the Revenue. A show cause notice dated 20.03.2021 was issued to the assessee seeking his response. It may be pertinent to reproduce the show cause notice issued by the PCIT for abbreviation of controversy. GOVERNMENT OF INDIA MINISTRY OF FINANCE INCOME TAX DEPARTMENT OFFICE OF THE PRINCIPAL COMMISSIONER OF INCOME TAX PCIT, Faridabad To, VAS DEV HOUSE N 05 FARRUKH NAGAR KHURAM PUR GATE FARRUKH N , FARRUKH NAGAR ....
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....7 is prima facie erroneous in so far as it is pre-judicial to the interest of revenue. 4. Keeping in view the above facts, you are provided an opportunity to show cause as to why the assessment order passed by the ITO, dated 15.11.2018 for the A.Y. 2011-12 in your case should not be revised u/s 263 of the Act. You are requested to present the case on 23.03.2021 in writing or produce or cause to be produced at the said time, any documents or any other evidence on which you rely in your support. 5. In case of no reply/non-attendance as per above, it shall be assumed that you do not wish to say anything in the matter and the matter would be decided as per material available on record without any further notice/intimation to you. PCIT, Faridabad 4. A revision order was eventually passed by which the PCIT set aside the assessment so completed and remanded the matter back to the file of the Assessing Officer for fresh adjudication thereof on issues alleged in the show cause notice. 5. Aggrieved, the assessee preferred appeal before the Tribunal. 6. When the matter was called for hearing, two fold contentions were raised on behalf of the assessee. 6.1 Firstly, it was contende....
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....perative paragraph in Dharamraj's case is reproduced herein for the sake of completeness of the point. 8. The issue of validity of a notice and proceedings held subsequent thereto against a dead person is no longer res integra. This Court in Savita Kapila vs. Assistant Commissioner of Income-Tax, in W.P. (C) No.3258/2020 has held as under: "AN ALTERNATIVE STATUTORY REMEDY DOES NOT OPERATE AS A BAR TO MAINTAINABILITY OF A WRIT PETITION WHERE THE ORDER OR NOTICE OR PROCEEDINGS ARE WHOLLY WITHOUT JURISDICTION. IF THE ASSESSING OFFICER HAD NO JURISDICTION TO INITIATE ASSESSMENT PROCEEDINGS. THE MERE FACT THAT SUBSEQUENT ORDERS HAVE BEEN PASSED WOULD NOT RENDER THE CHALLENGE TO JURISDICTION INFR UCTUOUS. 24. Further, the fact that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequent would have no legs to stand. If the notice goes, so does the order of assessment. It is trite law that if the Assessing Officer had no jurisdiction to initiate assessme....
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....ether PAN record was updated or not or whether the Department was made aware by the legal representatives or not is irrelevant. In Alamelu Veerappan (supra) [2018 (6) TMI 760 - Madras High Court] it has been held"nothing has been placed before this Court by the Revenue to show that there is a statutory obligation on the part of the legal representatives of the deceased assessee to immediately intimate the death of the assessee or take steps to cancel the PAN registration. " xxxxx 34. Consequently, the legal heirs are under no statutory obligation to intimate the death of the assessee to the Revenue. SECTION 292B OF THE ACT. 1961 HAS BEEN HELD TO BE INAPPLICABLE. VIS-A- VIS. NOTICE ISSUED TO A DEAD PERSON IN RAJENDER KUMAR SEHGAL 12018 (12) TMI 697 (DELHI)]. CHANDRESHBHAI JAYANTIBHAIPATEL 12019 (I) TMI353 - GUJARAT HIGH COURT1 AND ALAMELU VEERAPPAN f2018 (6) TMI 760 - MADRAS HIGH COURT1. 35. This Court is of the opinion that issuance of notice upon a dead person and non-service of notice does not come under the ambit of mistake, defect or omission. Consequently, Section 292B of the Act, 1961 does not apply to the present case. IN RAJINDER KUMAR SEHGAL (SUPRA) A COORDI....
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....ional authority was entitled in law to rectify such error. 11. We also simultaneously advert to another plank on behalf of the assessee alleging total lack of opportunity while concluding the proceedings under Section 263 of the Act. It is apparent from the records that solitary show cause notice issued to the assessee was for attendance on the very next date, i.e., 26.03.2021 in substitution of the first show cause notice fixing the hearing beyond limitation period. No other opportunity was given to the assessee. We are constraint to observe that such a casual approach of a very senior functionary of the Department does not augur well in the eyes of public and cannot be countenanced on the touchstone of sacrosanct principle of natural justice explicit in 263 itself. A question would arise as to whether a failure to give a reasonable opportunity to the assessee of being heard was only a procedural irregularity in such gross circumstances and thus curable and did not render the order passed by PCIT void ab initio and nonest in law per se. 12. In the case of Tata Chemicals Limited vs. DCIT, ITA No.3127/Mum/2010, order dated 30.06.2011, the co-ordinate bench after making reference t....