TaxTMI 
TaxTMI 
2023 (7) TMI 694
X X X X Extracts X X X X
X X X X Extracts X X X X
....thout jurisdiction. 3. The petitioner is the son and legal heir of late Vasudeo Damduji Jambhulkar who was an income tax Assessee having Permanent Account No. PAN : AKAPJ7925K and was assessed by respondent No. 2, who was working under the respondent No. 1 the Joint Commissioner of Income Tax, Range-4, Nagpur. The father of the petitioner died on 08.07.2020 leaving behind the petitioner as one of the legal heirs. During his life time he had filed the Income Tax Return for the year 2016-17 declaring taxable income of Rs. 5,57,090/- and exempt income on sale of agricultural land of Rs. 9,31,12,500/- which exempts under Section 10(37) of the I.T.Act, 1961. Full taxes on the said returned income was also paid. Said return was processed under Section 143(1) of the I.T. Act, 1961, however since there was neither any tax payable or refundable, no intimation under Section 143(1) was served on the Assessee. Income Tax returns of late Shri Vasudeo Damduji Jambhulkar for subsequent years viz. 2017-18, 2018-19, 2019-20 were also filed by him while the Income Tax Return for the year 2020-21 was (F.Y. 2019-20) filed by the legal heir in the name of the Assessee on 11.01.2021 as the said Assesse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....essee during his life time filed the return of his income for assessment year 2016-17 declaring income of Rs. 5,57,090/- and exempt income on sale of agricultural land for Rs. 9,31,12,500/- under Section 10(37) of the I.T. Act, 1961. The said return was processed and accepted. Thereafter, the respondent No. 2 reopened the said assessment by issuing notice under Section 148 dated 31.03.2021 on the ground that as per information available with the department, the Assessee sold one immovable property for a consideration of Rs. 9,31,12,500/-. This transaction has not been shown by the Assessee in his return of income for the year under consideration and hence he has reason to believe that income chargeable to tax has escaped assessment. 8. Even assuming that the respondent No. 2 was not aware of the death of the deceased still that will not validate the notice under Section 148 on dead person as held by the Hon'ble Delhi High Court in the case of Mrs. Sripathi Subbaraya Manohara Vs. Principal Commissioner of Income Tax and Anr. [(2021) 436 ITR P. 469] (Delhi) as under : "There is no statutory requirement imposing an obligation upon legal heirs to intimate the death of the Assessee .....
X X X X Extracts X X X X
X X X X Extracts X X X X
....viting impugned order. The petition being devoid of any substance is therefore, liable to be dismissed. 12. We have heard both the parties and considered the documents on record. 13. According to the respondents, the writ petition is not maintainable to challenge the notice under Section 148 of the I.T. Act, 1961 as alternate remedy is available. It is well settled law that an alternative statutory remedy does not operate as a bar to maintainability of a writ petition in at least three contingencies, namely, where the writ petition has been filed for enforcement of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order or notice or proceedings are wholly without jurisdiction or vires of an Act is challenged. In the present case, the notice dated 31.03.2021 under Section 148 of the I. T. Act, 1961 was issued to deceased assessee after the date of his death (08.07.2020) and thus inevitably the said notice could never have been served upon him. Consequently, the jurisdictional requirement under Section 148 of the I.T. Act, 1961, service of notice was not fulfilled. The Hon'ble Delhi High Court in the case of Mrs. Sripathi S....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... nothing contained in this section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment." 14. A cursory look at Section 292BB would show that the same would apply only to two types of proceedings namely (i) proceedings, in which, the assessee had appeared and (ii) any inquiry, in which, the assessee had cooperated. 15. In the case on hand, the assessee was dead. It was the assessee's son, who appeared and perhaps cooperated. Therefore, the primary condition for the invocation of Section 292BB is absent in the case on hand. 16. Section 292BB is in place to take care of contingencies where an assessee is put on notice of the initiation of proceedings, but who takes advantage of defective notices or defective service of notice on him. It is trite to point out that the purpose of issue of notice is to make the noticee aware of the nature of the proceedings. Once the nature of the proceedings is made known and understood by the assessee, he should not be allowed to take advantage of certain procedural defects. That was the purpose behind the enactment of Section 292BB. It cannot be invoked in cases where the very ini....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on the legal representatives to intimate the factum of death of an assessee to the income tax department" "Consequently, the legal heirs are under no statutory obligation to intimate the death of the assessee to the revenue." 20. While informing on mail, the petitioner has mentioned that the legal heirs of the assessee submits the documents which proves that it was sufficient for the respondents to know that the assessee is no more and the legal heirs are submitting the documents. Legal heirs are under no statutory obligation to intimate the death of the assessee to the department. It is also observed by the Delhi High Court in Savita Kapila Legal Heir of Late Shri Mohinder Paul Kapila Vs. Assistant Commissioner of Income Tax [(2020) 108 CCH 0049 DelHC] as under : "32. This Court is of the view that in the absence of a statutory provision it is difficult to cast a duty upon the legal representatives to intimate the factum of death of an assessee to the income tax department. After all, there may be cases where the legal representatives are estranged from the deceased assessee or the deceased assessee may have bequeathed his entire wealth to a charity. Consequently, whether P....