TaxTMI 
TaxTMI 
2023 (11) TMI 1196
X X X X Extracts X X X X
X X X X Extracts X X X X
....f the Income Tax Act, 1961(referred to as 'the Act of 1961' hereinafter) for the assessment year 2018-19 dated 31.03.2022 passed in case No. ITBA/AST/S/148_12021-22/1042404876(1) [Annexure P-3] as well as order u/S 148A(d) of the Act of 1961 dated 31.03.2022[Annexure P-4] for the assessment year 2018-19. 2. Brief facts of the case are that petitioner who was the legal heir of the original assessee received a notice DIN NO. 1041169255(1) dated 21.03.2022 from the respondent no.1 under Section 148A(b) of the Act of 1961 seeking reopening of assessment of the assessee as income chargeable to tax for the Assessment Year 2018-19 has escaped assessment within the meaning of Section 147 of the Act of 1961 and the petitioner is required ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tioned that since the original assessee has died, therefore, notice is issued to her son. In the absence of any justifiable explanation, regarding investment in the immovable properties, it has been held that assessee has not disclosed the income of Rs. 47,32,641 for the A.Y. 2018-19 which is also chargeable to tax and the same has escaped the assessment. Hence the present petition is filed. 3. Learned counsel for the petitioner submitted that an essential condition to issue notice u/S 148 of the Act of 1961 is that the notice be issued to the person who is alive and the same cannot be issued to a dead person. Since issuance of notice u/S 148 of the Act of 1961 is the foundation for reopening of an assessment, then such notice should oug....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that it is trite law that if the Assessing Officer had no jurisdiction to initiate assessment proceedings, the mere fact that subsequent orders may be passed would not render the challenge to jurisdiction infructuous. In support of this contention, learned counsel for the petitioner relied upon the judgment of Apex Court in the case of Calcutta Discount Co. Ltd. Vs. Income Tax Officer, Companies District I Calcutta and Another reported in AIR 1961 SC 372. Relevant extracts are reproduced herein below: "It is well settled however that though the writ of prohibition or certiorary will not issue against an executive authority, the High Courts have power to issue in a fit case an order prohibiting an executive authority from acting wit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fused without adequate reasons." 6. It is also submitted that if respondents rely upon Section 159 of the Act of 1961, the same would be of no avail as the same applies only to a situation where proceedings are initiated/pending against the assessee when he/she is alive and after his/her death, proceedings are permitted to be continued as against the legal heirs. Learned counsel has placed reliance on the judgment passed by the Madras High Court in the case of Alamelu Veerappan Vs. The Income Tax Officer, Non Coporate Ward 2(2), Chennai reported in 2018 SCC Online Mad wherein it has been held as under: 18. In such circumstances, the question would be as to whether Section 159 of the Act would get attracted. The answer to this qu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted that petition against order u/S 148A(d)/Notice u/S 148 of the Act of 1961 for initiation of reassessment proceedings is not tenable as all such objection have to be raised before the Assessing Officer as it is not a final adjudication of the matter where no further statutory remedy against the adjudication order is available.[Salil Gulati Vs. ACIT(2023(455 ITR 29 (SC) , Ajay Gupta Vs. ITO 454 ITR 794 (SC) (2023), Seema Gupta Vs ITO 455 ITR 504 2023(SC) , Anshul Jain Vs. PCIT Specal Leave to Appeal(C) No. 14823/2022, Harinder Singh Bedi Vs. UOI(MP) W.P. NO. 22734/2022, and Amit Homes Pvt. Ltd. V/S DCIT W.P. NO. 15244/2023(M.P.)] 9. She further submits that the question of going into the veracity and genuineness of material/evidence fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s observed as under: "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 to take steps to cancel the PAN registration." 14. Similar view has been taken by the High Court of Mumbai in Sumit Balkrishna Gupta Vs. Asstt. CIT[2019] 103 taxmann.com 188/262 Taxman 61/414 ITR 292/104 CCH 0379 MumHC] wherein it has been observed as under: "7. The issue of a notice under Section 148 of the Act is a foundation for reopening of assessment. The sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correc....