2022 (8) TMI 1038

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....appearing for the parties, the petition is taken up for final consideration. 1.1 Rule returnable forthwith. Learned advocate Mr.Karan Sanghani for the respondent authorities appear on behalf of M.R. Bhatt & Company waives service of Rule. 1.2 Heard learned Senior Advocate Mr. Tushar Hemani assisted by learned advocate Ms. Vaibhavi Parikh for the petitioner and learned Senior Advocate Mr. M.R. Bhatt for M.R. Bhatt & Co. assisted by learned advocate Mr. Karan Sanghani for the respondent. 2. By filing this petition under Article 226 of the Constitution, the petitioner Himadri Kandarp Mehta has prayed to set aside the notice dated 12.03.2019 issued to one Kandarp Yasasvibhai Mehta, which is a notice under Section 148 of the Income Tax ....

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....horities can subject a dead person to assessment proceeding, is no longer res integra. 5. The Division Bench of this Court in Urmilaben Anirudhhasinji Jadeja Vs. Income Tax Officer, Ward 7(1)(3) [(420) ITR 226], addressed the very issue. The Court considered various decisions of the Supreme Court and the High Court, touching the aspects of the issue, held that there cannot be any assessment against a dead person. In that case also, notice was issued to the dead assessee under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the "Act"). 5.1 While holding that the proceedings would be nullity against the dead assessee, the rider was provided that in cases where legal representatives participate in the assessment or re....

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.... notice cannot be termed as invalid. To put it in other words, the notice should be in conformity with and in accordance with the intent and purpose of the Act. In our opinion, a case in which notice is issued to a dead person could be termed as nullity. It is something like a safeguard passing a decree against a dead person which cannot be executed through the legal representatives of the judgment-debtor." 5.4.1 The continuation of proceedings pursuant to notice under Section 148 of the Act was held to be without authority of law by the Court stating thus - "...the notice under section 148 of the Act, which is a jurisdictional notice, has been issued to a dead person. Upon receipt of such notice, the legal representative has ra....

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....ove, the provisions of Section 292B of the Act are also not applicable and no assessment can be framed against a non-existing entity or a person who has died. 6. Reverting back to the facts of the present case, Kandarp Yasashvibhai Mehta died on 21.12.2012 in whose name, notice was issued by the income tax authorities on 12.03.2019 under Section 148 of the Act seeking to reopen assessment in respect of assessment year 2012-13 by communication dated 03.05.2019, the petitioner herein who happens to be the legal representative intimated to the income tax officer concerned that the noticee Kandarp Yasashvibhai Mehta had died long back and that the notice was without jurisdiction. The income tax authorities did not pay heed to the said intima....