2022 (9) TMI 1255

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....etitioner and learned advocate for the respondent. 1.2 Notice was issued in this petition on 13.12.2021 for final disposal. 2. The petitioner has prayed to set aside assessment order dated 26.12.2018 passed by the Income Tax Authority, Ward-1 (2)(4) Vadodara, passed under Section 144 read with Section 147 of the Income Tax Act, 1961. It is also prayed to quash the demand notice of even date, as well as order dated 24.3.2021 issued under Section 264 of the Income Tax Act (hereinafter referred to as 'the Act'). 3. The petitioner happens to be the son of deceased Smt. Rosamma Anthony Joseph. She died on 27.5.2014. The copy of the death certificate produced on record shows the factum of death. It appears that on 27.3.2018 respondent No....

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....mpliance. The petitioner had to file Revision Application under Section 264 of the Act. 3.2 It appears that the correspondence was made by the petitioner as the progress was not achieved. Finally without allowing the petitioner to represent his case, the respondent No.2 issued an order dated 24.3.2021, by which order dated 26.12.2018, which was passed by respondent No.1, came to be upheld. 3.3 The main ground urged by the petitioner was that the notice was issued to the mother who was dead person and that the notice to the dead assessee was invalid and illegal. It was submitted that despite intimation given to the authorities about the death, they proceeded against the dead person to frame assessment. 4. The question whether the in....

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....sessment, it shall be deemed that a notice required to be served under the Act has been duly served upon him. Such, it is provided, shall be precluded by taking any objection about the service of the service of the notice and manner of the service. 5.4 The Division Bench held that the said provision would not apply in cases where notices are gone to the dead assessee and the proceedings are started against a dead assessee. It was observed and held in paragraph 23 thus, "The purport of Section 292B of the Act is that in the event of any mistake, defect or omission in the notice or other proceedings, if the same is in conformity with or according to the intent and purpose of the Act, the notice cannot be termed as invalid. To put ....

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....ed." 5.5 Thus, the law is well settled that unless the heirs and legal representatives of the deceased assessee could be said to have been submitted to the jurisdiction of the assessing officer and have participated in the assessment or re-assessment proceedings, notice to the dead assessee and commencement of assessment or re-assessment proceedings against dead person is rendered null and void. 5.6 The attempt on the part of the income tax authorities to start proceedings for assessment or re-assessment against the dead person is viewed not merely as procedural irregularity but it is stated as jurisdictional defect. 5.7 There cannot be an assessment against the dead person. As noticed above, the provisions of Section 292B of the A....