The Delhi High Court recently comprising of a bench of Justices Navin Chawla and Manmohan while setting aside a reassessment notice issued against a person who already died remarked that Reassessment Notice u/s 148 of Income tax Act issued against a dead person is null and void. (Dharamraj v. Income Tax Officer)
Facts of the case
The present petition was filed by the petitioner challenging the notice dated 30.03.2019 issued by the respondent under Section 148 of the Income Tax Act, 1961 and all consequential proceedings emanating there from including orders passed by the Assessing Officer. 2.
The petitioner is the son of the Assessee Late Sh. Bhanger Singh Tanwar who died on 14.01.2016. The impugned notice under Section 148 of the Act was issued in the name of the Assessee. The petitioner claimed that he did not receive the said notice. Subsequently, notice dated 30.10.2019 under Section 142(1) of the Act was again issued in the name of the Assessee.
As no response was received to these notices, a Show Cause Notice was issued to the Assessee. Finally, an assessment order was passed against the Assessee. Notice under Section 221(1) and notice under Section 271(1) (b) of the Act were also issued in the name of the Assessee.
The petitioner has challenged the above notices and proceedings on the ground that they were initiated against a person who had died prior to the issuance of notice and therefore, all proceedings are void ab initio.
Contention of the Parties
The learned counsel for the respondent submitted that the factum of death of the Assessee was never communicated to the respondent by the legal heirs, though the notices were duly served at the given address. He submitted that the petitioner, therefore, has an alternate efficacious remedy in form of a statutory appeal and this Court should refuse to entertain the present petition.
Courts Observation & Judgment
The court taking note of the facts of the case and contentyion of the Parties referred to the Judgments passed by this court in the case of Savita Kapila vs. Assistant Commissioner of Income-Tax, in W.P. (C) No.3258/2020 wherein it was held, “In the opinion of this Court the issuance of a notice under Section 148 of the Act is the foundation for reopening of an assessment. Consequently, the sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person. This requirement of issuing notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law.”
The above judgment was even followed by this Court in W.P.(C) No.2678/2020 titled Mrs. Sripathi Subbaraya Manohara L/H Late Sripathi Subbaraya Gupta vs. Principal Commissioner of Income Tax 22, N.Delhi & Anr.
The bench taking note of the above noted, “In the present case also, as the notice under Section 148 of the Act was issued against a dead person, the same is null and void and all consequent proceedings/orders, including the assessment order and the subsequent notices, being equally tainted, are liable to be set aside.”
Consequently, the impugned notice dated 30.03.2019 issued under Section 148 of the Act was set aside along with all consequential proceedings/notices/assessment orders and the petition was allowed. There was no order as to costs.
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