BHAVNABEN SANMUKHBHAI PATEL L/H OF LATE SANMUKHBHAI KESHAVBHAI PATEL V. THE INCOME TAX OFFICER WARD 2(3)(4)

SCA/20437/2018

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The case revolves around a notice issued by the Income Tax Officer under section 148 of the Income Tax Act, 1961, to Sanmukhbhai Keshavbhai Patel, who had passed away before the notice was issued. The notice was intended to reassess income for the Assessment Year 2011-2012, alleging that income chargeable to tax had escaped assessment. Bhavnaben Sanmukhbhai Patel, the legal heir of the deceased, contested the validity of the notice, arguing that it was issued to a deceased person and thus was invalid. The court examined precedents and legal provisions, particularly focusing on whether an assessment can be made against a deceased person and the implications of legal representatives participating in such proceedings.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 672682 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 12-07-2022
• Assessment Year: misc
• Other Referred Cases: Urmilaben Anirudhhasinji Jadeja Vs. Income Tax Officer, Ward 7(1)(3), Chandreshbhai Jayantibhai Patel vs. Income Tax Officer
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: KALPANAK RAVAL
• Assessee Lawyers: TUSHAR HEMANI; VAIBHAVI PARIKH
• Keywords: Assessment Year; Dead person; Income Tax; Legal heir; Notice
• Section: 147; 148; 142(1); 292BB

Judgement Text

"C/SCA/20437/2018 ORDER DATED: 12/07/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 20437 of 2018 ========================================================== BHAVNABEN SANMUKHBHAI PATEL L/H OF LATE SANMUKHBHAI KESHAVBHAI PATEL Versus THE INCOME TAX OFFICER WARD 2(3)(4) ========================================================== Appearance: MR. TUSHAR HEMANI, SR. ADV. WITH MS VAIBHAVI K PARIKH(3238) for the Petitioner(s) No. 1 MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA and HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 12/07/2022 ORAL ORDER (PER : HONOURABLE MR. JUSTICE N.V.ANJARIA) Heard learned senior advocate Mr. Tushar Hemani with learned advocate Ms. Vaibhavi Parikh for the petitioner and learned advocate Mr. Nikunt Raval for the respondent authorities. 2. The petitioner Bhavnaben Sanmukhbhai Patel-legal heir of deceased Sanmukhbhai Keshavbhai Patel by filling present petition under Article 226 of the Constitution has prayed to set aside notice dated 26.3.2018 issued by the Assessing Officer under section 148 of the Income Tax Act, 1961 in respect of the Assessment Year 2011-2012 stating that for the reasons to believe, the income chargeable to tax for the Page 1 of 6 C/SCA/20437/2018 ORDER DATED: 12/07/2022 Assessment Year under consideration has escaped assessment within the meaning of section 147 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). 3. Therefore, the Assessing Officer has proposed to assess/re-assess the income of the addressee of the notice. The notice was issued in the name of Sanmukhbhai Keshavbhai Patel. 4. Learned senior advocate for the petitioner invited the attention of the Court to the impugned notice issued under section 148 of the Income Tax Act, 1961 to point out that the same has been issued in the name of Sanmukhbhai Keshavbhai Patel, who died on 09.09.2014. It was pointed out that in view of the fact that notice had been issued to a dead person, the petitioner herein had addressed a communication dated 24.04.2018 to the respondent pointing out that since the notice was issued in the name of a dead person, the same was required to be filed. 4.1 It was submitted that thereafter the Assessing Officer issued notice under section 142(1) of the Act to the petitioner, who once again, requested the authority to drop the notice, as the same was issued to a dead person. It was submitted that the Assessing Officer, despite the fact Page 2 of 6 C/SCA/20437/2018 ORDER DATED: 12/07/2022 that the impugned notice under section 148 of the Act has been issued to a dead person, persisted on continuing with the assessment pursuant thereto and framed assessment by order dated 14.12.2018 in the name of the petitioner. It was submitted that the impugned notice, having been issued against a dead person, was invalid and that pursuant to the notice issued to the dead person, any assessment order could not have been passed against the legal heir-the petitioner herein. 5. The question whether the income tax authorities can subject a dead person to the assessment proceeding, is no longer res integra. 5.1 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, and 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. 5.2 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-assessment Page 3 of 6 C/SCA/20437/2018 ORDER DATED: 12/07/2022 proceedings, the proceedings may be maintained and continued. It was at the same time held that mere intimation by the legal representative to the assessing officer that the noticee is dead, would not amount the heir participating in the proceedings. In Urmilaben Anirudhhasinji Jadeja (supra), while the revenue raised various contentions seeking a proposition that the proceedings against the dead assessee would be maintained, the Court negatived them all. 5.2.1 One of the contentions was based on Section 292BB of the Act. The said provision contemplates that the notice shall be deemed to be valid in certain circumstances. It mentions that where an assessee has appeared in any proceedings or cooperated in any inquiry relating to assessment or re-assessment, it shall be deemed that a notice required to be served under the Act has been duly served upon him. Such assessee, it is provided, shall be precluded from taking any objection about the service of the service of the notice and manner of the service. 5.2.2 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 292BB of the Act is that in the event of any Page 4 of 6 C/SCA/20437/2018 ORDER DATED: 12/07/2022 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 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.\" 5.3 Similar view was taken by the co-ordinate Bench of this court in Chandreshbhai Jayantibhai Patel vs. Income Tax Officer [(2019) 101 taxmann.com 362 (Gujarat)]. 6. The facts of the case do not offer any fact or circumstances to suggest that the legal representative of the deceased assessee in any manner submitted to the jurisdiction of the income tax authorities or in any way participated in the proceedings so as to persuade the court to hold otherwise. 6. In view of the above, the present petition deserves to be allowed. It is hereby allowed by holding that the impugned notice, which was against the dead assessee could not be sustained. 6.1 Resultantly, the notice dated 26.03.2018 issued in the name of Sanmukhbhai Keshavbhai Patel, as a dead person, by the income tax Page 5 of 6 C/SCA/20437/2018 ORDER DATED: 12/07/2022 department, is held to be illegal. 7. The Notice dated 26.03.2018 issued by the income tax authorities is set aside. The income tax authorities shall not proceed against the said dead assessee. Rule is made absolute. (N.V.ANJARIA, J) (BHARGAV D. KARIA, J) C.M. JOSHI Page 6 of 6 "