SHRI SHAMBHU DAYAL, KOTPUTLI V. INCOME TAX OFFICER, WARD-1, BEHROR

ITA 1526/JPR/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7638 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 31-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANCHAL MEENA ACIT
• Keywords: Invalid notice; Period of limitation; Competent authority; Time period of passing order; Reassessment proceedings; Set aside
• Section: 142(1); 48; 13; 22; 147; 148; 144

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 1526/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2010-11 SH. SHAMBHU DAYAL, RAVI DUTT, GORI SHANKAR RAJESH ROHIT L/H LATE SH. JHABAR MAL, VPO PURUSHOTTAM PURA, VIA NAREHADA, KOTPUTLI CUKE VS. THE ITO WARD- 1, BEHROR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ADIPK4839L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : NONE JKTLO DH VKSJ LS @ REVENUE BY : MS. CHANCHAL MEENA (ACIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/08/2020 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 27/08/2020 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-22, ALWAR DATED 09.10.2018 WHEREIN THE ASSES SEE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL:- 1. ON THE FACTS & CIRCUMSTANCES OF THE CASE LD. AO GROSSLY ERRED IN INITIATING REASSESSMENT PROCEEDINGS U/S 1 47 OF THE ACT. 2. ON THE FACTS & CIRCUMSTANCES OF THE CASE AND IN LAW ALSO LD. AO GROSSLY ERRED IN RESUMING JURISDICTION WITHOUT SERVING NOTICE U/S 148 ON THE APPELLANT ASSESSEE AS NOTICE ISSUED U/S 148 COULD NOT BE SERVED ON THE APPELLANT BECAUSE ASSESSEE HA S EXPIRED ON 10/10/2015 AND EVEN NO NOTICE UNDER 148 HAS BEEN I SSUED AND ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 2 SERVED IN THE NAME OF LEGAL HEIRS OF THE ASSESSEE. THEREFORE, RESUMING JURISDICTION IS UNLAWFUL. 3. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LA W ALSO LD. AO GROSSLY ERRED IN NOT TAKING PRIOR APPROVAL OF S UPERIOR AUTHORITY IN THE CASE HENCE THE ENTIRE PROCEEDING ARE ABINIT IO VOID. 4. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LA W ALSO LD. AO GROSSLY ERRED IN PASSING THE EX-PARTY ORDER U/S 144 OF THE INCOME TAX ACT 1961. 5. THAT THE REASONS RECORDED WERE VAGUE, BECAUSE AS PER REASONS RECORDED ASSESSEE HAS DEPOSITED CASH OF RS . 30,00,000/- IN BANK ACCOUNT WHEREAS THE ASSESSMENT HAS BEEN MA DE FOR UNEXPLAINED CASH DEPOSIT OF RS. 3 LACS ONLY. LD. C IT(A) ALSO ERRED IN CONFIRMING THE SAME. 6. ON THE FACTS & CIRCUMSTANCES OF THE CASE LD. AO GROSSLY ERRED IN MAKING ADDITION OF RS. 3,00,000/- ON ACCO UNT OF UNEXPLAINED INCOME (CASH DEPOSIT INTO BANK). LD. C IT(A) ALSO ERRED IN CONFIRMING THE SAME. 7. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LA W ALSO LD. AO GROSSLY ERRED IN NOT GIVING THE PROPER OPPORTUN ITY OF HEARING TO THE LEGAL HEIRS OF ASSESSEE. 8. ON THE FACTS & CIRCUMSTANCES OF THE CASE & IN LA W ALSO LD. AO GROSSLY ERRED IN NOT PROVIDING THE DETAILS OF C ASH DEPOSIT INTO BANK EVEN AFTER WRITTEN REQUEST VIDE LETTER DATED 22/11/2017. EVEN NAME OF BANK WAS NOT COMMUNICATED TO THE LEGA L HEIRS. 2. THE HEARING OF THE MATTER WAS SCHEDULED FOR TODA Y THROUGH VIDEO CONFERENCING IN VIEW OF THE ONGOING COVID-19 PANDEM IC SITUATION IN THE COUNTRY. NONE APPEARED ON BEHALF OF THE ASSESSEE, HOWEVER, AN ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 3 ADJOURNMENT APPLICATION DATED 25.08.2020 WAS RECEIV ED BY THE REGISTRY WHICH WAS SIGNED BY SHRI ASHISH AGARWAL, C.A. AND A /R ON BEHALF OF THE ASSESSEE STATING THAT SOME MORE TIME IS REQUIRED FO R THE PREPARATION OF THE CASE AND THE MATTER MAY BE ADJOURNED. GIVEN TH E FACT THAT THE APPEAL WAS FILED WAY BACK IN DECEMBER 2018 AND THE MATTER HAS BEEN ADJOURNED FROM TIME TO TIME AND THE FACT THAT WRITT EN SUBMISSIONS OF THE ASSESSEE ARE ON RECORD, WE DEEMED IT APPROPRIAT E TO HEAR THE LD DR AND TO DECIDE THE MATTER CONSIDERING THE WRITTEN SU BMISSIONS AND OTHER MATERIAL AVAILABLE ON RECORD. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSMENT IN THIS CASE WAS COMPLETED BY THE ASSESSING OFFICER U/ S 147 READ WITH SECTION 144 VIDE ORDER DATED 01.12.2017 WHEREIN AMO UNT OF RS. 3,00,000/- WAS BROUGHT TO TAX AS UNEXPLAINED BANK D EPOSITS. IN APPEAL, THE SAME HAS BEEN CONFIRMED BY THE LD. CIT(A). HENC E, THE PRESENT APPEAL THROUGH THE LEGAL HEIRS OF THE DECEASED ASSE SSEE WHICH HAS COME UP FOR ADJUDICATION BEFORE US. 4. IN GROUND NO. 2, THE LEGAL HEIRS OF THE DECEASED ASSESSEE HAVE CHALLENGED THE ASSUMPTION OF JURISDICTION U/S 147 B Y ISSUING NOTICE U/S 148 ON THE DECEASED ASSESSEE AND CONSEQUENT REASSES SMENT ORDER PASSED U/S 147 R/W 144 OF THE ACT. 5. IN THIS REGARD, THE LD. AR IN ITS WRITTEN SUBMIS SION SUBMITTED THAT THE ISSUANCE OF VALID NOTICE IS A FOUNDATION FOR TH E VALID RE-ASSESSMENT PROCEEDINGS. THE NOTICE PRESCRIBED U/S 148 IS NOT A MERE PROCEDURAL REQUIREMENT, BUT IS A CONDITION PRECEDENT TO THE VA LIDITY OF REASSESSMENT PROCEEDINGS. IF NO NOTICE IS ISSUED OR IF THE NOTICE ISSUED ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 4 IS SHOWN TO BE INVALID, THE PROCEEDINGS INITIATED B Y THE ASSESSING OFFICER WOULD BE INVALID AND VOID. IN THE INSTANT CASE, IT WAS SUBMITTED THAT THE PROCEEDINGS U/S 147 WERE INITIATED AGAINST THE DECE ASED ASSESSEE WHO HAD EXPIRED ON 10.10.2015 I.E. MUCH PRIOR TO THE IS SUANCE OF NOTICE U/S 148 ON 31.03.2017. IT WAS SUBMITTED THAT THE IMPUGN ED NOTICE HAVING BEEN ISSUED IN THE NAME OF A DECEASED ASSESSEE WAS AN INVALID NOTICE AND CONSEQUENTLY SUCH REASSESSMENT PROCEEDINGS ARE VOID AB INITIO. IT WAS FURTHER SUBMITTED THAT SUCH A NOTICE COULD NOT HAVE BEEN SERVED ON THE ASSESSEE AS HE HAD EXPIRED BY THAT TIME AND THE NOTICE HAS ALSO NOT BEEN SERVED ON THE LEGAL HEIRS WHICH IS A MANDATORY REQUIREMENT UNDER SECTION 148(1) OF THE ACT. IN SUPPORT, RELIANCE WA S PLACED ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN CASE O F ALAMELU VEERAPPN VS ITO (WRIT PETITION NO. 30060 OF 2017) AND THE DE CISION OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF KESAR DEVI VS CIT 3 21 ITR 341 BESIDES THE DECISION OF HONBLE DELHI HIGH COURT IN CASE OF RAJENDRA KUMAR SEHGAL AND VIPIN WALIA. 6. PER CONTRA, THE LD. DR SUBMITTED THAT ON THE BAS IS OF THE INFORMATION AVAILABLE ON RECORD, ACTION U/S 147 WAS INITIATED IN THE CASE OF ASSESSEE AND AFTER TAKING PRIOR APPROVAL FROM TH E COMPETENT AUTHORITY, NOTICE U/S 148 WAS ISSUED ON 31.03.2017 AND SERVED THROUGH REGISTERED POST. THEREFORE, THE PROCEEDINGS INITIAT ED WERE AS PER LAW AND WHICH HAS ALSO BEEN CONFIRMED BY THE LD. CIT(A) . IT WAS FURTHER SUBMITTED THAT IN ABSENCE OF ANY DETAILS WITH THE D EPARTMENT EXCEPT THE FACT THAT THE ASSESSEE HAD DEPOSITED CERTAIN SUM OF MONEY IN HIS BANK ACCOUNT, IT WAS NOT POSSIBLE FOR THE AO TO ASCERTAI N THE EXISTENCE OF STATUS OF THE ASSESSEE. THEREFORE, THE NOTICE U/S 1 48 WAS RIGHTLY ISSUED IN THE NAME OF THE ASSESSEE AND PROCEEDINGS WERE AS PER LAW, AS ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 5 MENTIONED BY THE AO IN HIS REASSESSMENT ORDER. IT WAS FURTHER SUBMITTED THAT THERE WAS NO INTIMATION ABOUT THE DEATH OF THE ASSESSEE TO THE DEPARTMENT AND THEREAFTER, FOR THE FIRST TIME ON 22 .11.2017 IN THE WRITTEN SUBMISSION RECEIVED THROUGH DAK, THE AO CAM E TO KNOW ABOUT THE DEATH OF THE ASSESSEE ON 10.10.2015 WHERE THE D EATH CERTIFICATE OF THE ASSESSEE WAS SUBMITTED. IT WAS SUBMITTED THAT NO SUCH OBJECTIONS WERE RAISED DURING THE COURSE OF REASSESSMENT PROCE EDINGS AND THEREFORE, RAISING SUCH OBJECTIONS AT THIS STAGE OF THE PROCEEDINGS CANNOT BE ALLOWED. SHE ACCORDINGLY SUPPORTED THE F INDINGS OF THE AO AND THE LD CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE, SHRI JHABAR MAL KUMAWAT HAD EXPIRED ON 10.10.2015 AS NOT ED BY THE AO IN THE ASSESSMENT ORDER. THEREAFTER, THE REASONS FOR R EOPENING THE ASSESSMENT U/S 147 WERE RECORDED AND AFTER SEEKING APPROVAL FROM THE COMPETENT AUTHORITY, THE NOTICE U/S 148 WAS ISSUED IN THE NAME OF DECEASED ASSESSEE ON 31.03.2017. THEREFORE, AT THE TIME OF ISSUANCE OF THE NOTICE U/S 148, THE ASSESSEE HAD ALREADY EXPIRE D AND THE NOTICE WAS THUS ISSUED IN THE NAME OF DECEASED ASSESSEE. FURTH ER, WE FIND THAT THERE IS NO SUBSEQUENT NOTICE U/S 148 WHICH WAS ISS UED BY THE ASSESSING OFFICER ON THE LEGAL HEIRS OF THE DECEASE D ASSESSEE AND THEREFORE, THE PROVISIONS OF SECTION 159 CANNOT BE INVOKED IN THE INSTANT CASE. IN ANY CASE, THE LIMITATION FOR ISSUE OF NOTI CE U/S 148 HAD EXPIRED ON 31.03.2017 AND BEYOND SUCH LIMITATION PERIOD, NO NOTICE CAN BE ISSUED IN THE NAME OF THE LEGAL HEIRS. IT IS A SET TLED LEGAL PROPOSITION THAT THE NOTICE ISSUED U/S 148 IN THE NAME OF THE D ECEASED ASSESSEE IS A NULLITY IN THE EYES OF LAW. CONSEQUENTLY, THE PR ESENT REASSESSMENT ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 6 PROCEEDINGS INITIATED BY ISSUANCE OF NOTICE IN THE NAME OF THE DECEASED ASSESSEE AND CONSEQUENT REASSESSMENT PROCEEDINGS IS HEREBY QUASHED FOR WANT OF JURISDICTION. SIMILAR VIEW HAS BEEN TAK EN BY THIS BENCH IN CASE OF LATE SHRI BHURA RAM, JAIPUR VS ITO, JAIPUR (ITA NO. 989/JP/2015 DATED 26/11/2019) AND THE RELEVANT FINDINGS READ AS UNDER: 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE, SHRI BHURA RAM HAD EXPIRED ON 26.11.2008 AS PER DEATH CERTIFICATE DATED 11.02.2009 ISSUED BY JAIPUR MUNIC IPAL CORPORATION. THE REASONS FOR REOPENING THE ASSESSME NT U/S 147 WERE RECORDED ON 15.03.2013 AND THEREAFTER THE NOTI CE U/S 148 WAS ISSUED IN THE NAME OF ASSESSEE ON 20.03.2013. T HEREFORE, AT THE TIME OF ISSUANCE OF THE NOTICE U/S 148, THE ASS ESSEE HAD ALREADY EXPIRED AND THE NOTICE WAS THUS ISSUED IN T HE NAME OF DECEASED ASSESSEE. FURTHER, WE FIND THAT THERE IS N O SUBSEQUENT NOTICE U/S 148 WHICH HAS BEEN ISSUED BY THE ASSESSI NG OFFICER ON THE LEGAL HEIRS OF THE DECEASED ASSESSEE. IN THIS REGARD, WE REFER TO THE DECISION OF DELHI HIGH COURT IN CASE OF VIPI N WALIA VS. ITO (SUPRA) WHEREIN REFERRING TO THE PROVISIONS OF SECT ION 159 OF THE ACT, IT WAS HELD AS UNDER: 11. SECTION 159(2) OF THE ACT MAKES A SPECIFIC REFERENCE TO A REASSESSMENT PROCEEDING UNDER SECTIO N 147 OF THE ACT. WHILE SECTION 159(2)(A) OF THE ACT TALK S OF A PROCEEDING ALREADY TAKEN AGAINST AN ASSESSEE 'BEFOR E HIS DEATH'. SECTION 159(2)(B) OF THE ACT ENVISAGES ANY PROCEEDING WHICH COULD HAVE BEEN TAKEN AGAINST THE ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 7 DECEASED IF HE HAD SURVIVED. IT PERMITS SUCH A PROC EEDING TO BE TAKEN AGAINST THE LRS OF THE DECEASED ASSESSE E EVEN IF IT HAD NOT TAKEN WHILE THE ASSESSEE WAS ALIVE. S ECTION 159(2)(B) IS RELEVANT AS FAR AS THE PRESENT CASE IS CONCERNED. 12. WHAT WAS SOUGHT TO BE DONE BY THE ITO WAS TO INITIATE PROCEEDINGS UNDER SECTION 147 OF THE ACT A GAINST THE DECEASED ASSESSEE FOR AY 2008-09. THE LIMITATIO N FOR ISSUANCE OF THE NOTICE UNDER SECTION 147/148 OF THE ACT WAS 31ST MARCH 2015. ON 27TH MARCH 2015, WHEN THE NOTICE WAS ISSUED, THE ASSESSEE WAS ALREADY DEAD. I F THE DEPARTMENT INTENDED TO PROCEED UNDER SECTION 147 OF THE ACT, IT COULD HAVE DONE SO PRIOR TO 31ST MARCH 2015 BY ISSUING A NOTICE TO THE LRS OF THE DECEASED. BEYOND THAT DATE IT COULD NOT HAVE PROCEEDED IN THE MATTER EVEN BY ISSUING NOTICE TO THE LRS OF THE ASSESSEE. 9. SIMILAR VIEW HAS BEEN TAKEN EARLIER BY THE HONB LE ALLAHABAD HIGH COURT IN CASE OF CIT VS. SURESH CHAN DRA JAISWAL (SUPRA) WHEREIN IT WAS HELD AS UNDER:- IN THE PRESENT CASE, THE NOTICE U/S 148 WAS ADDRES SED TO AN ASSESSEE WHO WAS ALREADY DEAD EVEN ON THE DAT E OF ISSUE OF NOTICE. THE NOTICE WAS ISSUED ON 28TH MARCH, 1985, WHILE THE ASSESSEE, GANGA PRASAD JAISW AL HAD DIED ON 20TH MARCH, 1985. THE NOTICE WAS NOT SERVED UPON THE LEGAL REPRESENTATIVES OF GANGA PRAS AD JAISWAI BUT IT WAS SERVED ON ONE KESHAV RAM, MUNIM. ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 8 EVEN THE NAME OF THE DECEASED ASSESSEE WAS NOT CORRECTLY MENTIONED IN THE NOTICE. THE NOTICE WAS ADDRESSED TO GANGA PRASAD JAISWAI WHILE THE CORRECT NAME OF THE ASSESSEE WAS GANGA RAM JAISWAL. THE TRIBUNAL WAS RIGHT IN HOLDING THAT THE DEFECTS IN T HE NOTICE UNDER S. 148 WERE NOT CURED BY S. 292B. 10. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE MADR AS HIGH COURT IN CASE OF ALAMELU VEERAPPAN VS ITO (SUPRA), FOLLOWING THE DECISION OF THE HONBLE DELHI HIGH COURT IN CASE OF VIPIN WALIA, WHEREIN IT WAS HELD AS UNDER: 14. THE ISSUE, WHICH FALLS FOR CONSIDERATION, IS A S TO WHETHER THE IMPUGNED NOTICE UNDER SECTION 148 OF TH E ACT ISSUED IN THE NAME OF THE DEAD PERSON - THE SAID MR.S.VEERAPPAN IS ENFORCEABLE IN LAW AND THE SUBSID IARY ISSUE BEING AS TO WHETHER THE PETITIONER, BEING THE WIFE OF THE SAID MR.S.VEERAPPAN, CAN BE COMPELLED TO PARTIC IPATE IN THE PROCEEDINGS AND RESPOND TO THE IMPUGNED NOTICE. THE FACT THAT THE SAID MR.S.VEERAPPAN DIED ON 26.1.2010 IS NOT IN DISPUTE. IF THIS FACT IS NOT DISPUTED, THEN THE NOTICE ISSUED IN THE NAME OF THE DEAD PERSON IS UNENFORCEABLE IN THE EYE OF LAW. 15. THE DEPARTMENT SEEKS TO JUSTIFY THEIR STAND BY CONTENDING THAT THEY WERE NOT INTIMATED ABOUT THE D EATH OF THE ASSESSEE, THAT THE LEGAL HEIRS DID NOT TAKE ANY STEPS TO CANCEL THE PAN REGISTRATION IN THE NAME OF THE ASSE SSEE AND THAT THEREFORE, THE DEPARTMENT WAS JUSTIFIED IN DIR ECTING THE ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 9 PETITIONER TO CO-OPERATE IN THE PROCEEDINGS PURSUAN T TO THE IMPUGNED NOTICE. 16. THE SETTLED LEGAL PRINCIPLE BEING THAT A NOTICE ISSUED IN THE NAME OF THE DEAD PERSON IS UNENFORCEABLE IN LAW . IF SUCH IS THE LEGAL POSITION, WOULD THE REVENUE BE JU STIFIED IN CONTENDING THAT THEY, HAVING NO KNOWLEDGE ABOUT THE DEATH OF THE ASSESSEE, ARE ENTITLED TO PLEAD THAT THE NOT ICE IS NOT DEFECTIVE. IN MY CONSIDERED VIEW, THE ANSWER TO THE QUESTION SHOULD BE DEFINITELY AGAINST THE REVENUE. 17. THIS COURT SUPPORTS SUCH A CONCLUSION WITH THE FOLLOWING REASONS : ADMITTEDLY, THE LIMITATION PERIOD FOR ISS UANCE OF NOTICE FOR REOPENING EXPIRED ON 31.3.2017. THE IMPU GNED NOTICE WAS ISSUED ON 30.3.2017 IN THE NAME OF THE D EAD PERSON. ON BEING INTIMATED ABOUT THE DEATH, THE DEPARTMENT SENT THE NOTICE TO THE PETITIONER - HIS SPOUSE TO PARTICIPATE IN THE PROCEEDINGS. THIS NOTICE WAS WEL L BEYOND THE PERIOD OF LIMITATION, AS IT HAS BEEN ISSUED AFT ER 31.3.2017. IF WE APPROACH THE PROBLEM SANS COMPLICA TED FACTS, A NOTICE ISSUED BEYOND THE PERIOD OF LIMITAT ION I.E. 31.3.2017 IS A NULLITY, UNENFORCEABLE IN LAW AND WI THOUT JURISDICTION. THUS, MERELY BECAUSE THE DEPARTMENT W AS NOT INTIMATED ABOUT THE DEATH OF THE ASSESSEE, THAT CAN NOT, BY ITSELF, EXTEND THE PERIOD OF LIMITATION PRESCRIBED UNDER THE STATUTE. NOTHING HAS BEEN PLACED BEFORE THIS COURT BY THE REVENUE TO SHOW THAT THERE IS A STATUTORY OBLIGATIO N ON THE PART OF THE LEGAL REPRESENTATIVES OF THE DECEASED A SSESSEE TO IMMEDIATELY INTIMATE THE DEATH OF THE ASSESSEE O R TAKE STEPS TO CANCEL THE PAN REGISTRATION. ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 10 18. IN SUCH CIRCUMSTANCES, THE QUESTION WOULD BE AS TO WHETHER SECTION 159 OF THE ACT WOULD GET ATTRACTED. THE ANSWER TO THIS QUESTION WOULD BE IN THE NEGATIVE, A S THE PROCEEDINGS UNDER SECTION 159 OF THE ACT CAN BE INV OKED ONLY IF THE PROCEEDINGS HAVE ALREADY BEEN INITIATED WHEN THE ASSESSEE WAS ALIVE AND WAS PERMITTED FOR THE PROCEE DINGS TO BE CONTINUED AS AGAINST THE LEGAL HEIRS. THE FAC TUAL POSITION IN THE INSTANT CASE BEING OTHERWISE, THE P ROVISIONS OF SECTION 159 OF THE ACT HAVE NO APPLICATION. 19. THE REVENUE SEEKS TO BRING THEIR CASE UNDER SEC TION 292 OF THE ACT TO STATE THAT THE DEFECT IS A CURABL E DEFECT AND ON THAT GROUND, THE IMPUGNED NOTICE CANNOT BE DECLARED AS INVALID. 20. THE LANGUAGE EMPLOYED IN SECTION 292 OF THE ACT IS CATEGORICAL AND CLEAR. THE NOTICE HAS TO BE, IN SUB STANCE AND EFFECT, IN CONFORMITY WITH OR ACCORDING TO THE INTENT AND PURPOSE OF THE ACT. UNDOUBTEDLY, THE ISSUE RELATING TO LIMITATION IS NOT A CURABLE DEFECT FOR THE REVENUE TO INVOKE SECTION 292B OF THE ACT. 12. IN VIEW OF THE AFORESAID LEGAL PROPOSITION SO L AID DOWN BY THE VARIOUS COURTS, IN THE INSTANT CASE, THE NOTICE ISS UED U/S 148 IN THE NAME OF THE DECEASED ASSESSEE IS A NULLITY IN T HE EYES OF LAW. FURTHER, NO NOTICE U/S 148 HAS BEEN ISSUED IN THE N AME OF THE LEGAL HEIRS AND THEREFORE, THE PROVISIONS OF SECTIO N 159 CANNOT BE INVOKED IN THE INSTANT CASE. CONSEQUENTLY, THE PRE SENT REASSESSMENT PROCEEDINGS INITIATED BY ISSUANCE NOTI CE ON THE DECEASED ASSESSEE ARE BEING QUASHED FOR WANT OF JUR ISDICTION. IN ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 11 VIEW OF THE ABOVE, REST ALL GROUNDS TAKEN BY THE AS SESSEE HAVE BECOME ACADEMIC IN NATURE AND THE SAME ARE DISMISSE D AS INFRUCTUOUS. 8. SIMILARLY, THIS BENCH IN LATEST CASE OF SHRI RAMESH KUMAR JAIN VS ACIT, CIRCLE 4, JAIPUR (ITA NO. 228/JP/2019 DATED 15.05.2020) HAS HELD AS UNDER: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE AO HAS STATED THE FACT REGA RDING THE ISSUE OF NOTICE UNDER SECTION 148 IN PARA 2 OF THE ASSESSMEN T ORDER AS UNDER :- 2. A NOTICE U/S 148 OF THE I.T. ACT, 1961 DATED 1 4.03.2016 WAS ISSUED TO THE ASSESSEE. IN RESPONSE TO THE SAME NO ONE ATTENDED THE PROCEEDINGS AND NOR FILED ANY RETURN O F INCOME IN RESPONSE TO THE NOTICE U/S 148 OF THE INCOME TAX AC T. IN THE ASSESSMENT PROCEEDINGS, NOTICE U/S 142(1) WAS ISSUE D ON 28.10.2016 TO THE ASSESSEE TO ATTEND THE PROCEEDING S ON 09.11.2016. ON 09.11.2016 NO ONE ATTENDED THE CASE. IN THIS CONNECTION, A NOTICE U/S 144 OF THE INCOME TAX ACT, 1961 WAS ISSUED TO THE ASSESSEE ON THE ADDRESS OF THE ASSESS EE ON 07.11.2016 WITH REQUEST TO ATTEND THE ASSESSMENT PR OCEEDINGS ON 15.11.2016. NO ONE ATTENDED THE OFFICE OR FILED ADJOURNMENT IN RESPONSE TO THE NOTICES ISSUED FROM TIME TO TIMW E. IN THIS CONNECTION ONE MORE NOTICE U/S 144 OF THE INCOME TA X ACT WAS ISSUED TO THE ASSESSEE ON THE ADDRESS OF THE ASSESS EE WITH A REQUEST TO ATTEND THE ASSESSMENT PROCEEDINGS ON 30. 11.2016 WHICH IS REPRODUCED AS UNDER : THUS IT IS CLEAR THAT THE AO ISSUED THE NOTICE UNDE R SECTION 148 ON 14.03.2016 WHEREAS THE ASSESSEE WAS ALREADY DIED ON 25 TH APRIL, 2015 ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 12 AS PER THE DEATH CERTIFICATE ISSUED BY THE GOVERNME NT OF RAJASTHAN. THE AO HAS NOT MENTIONED ANYTHING ABOUT THE SERVICE OF THE NOTICE ISSUED UNDER SECTION 148 IN THE NAME OF THE DECEASE D ASSESSEE. THEREFORE, IT APPEARS THAT WITHOUT VALID NOTICE, UN DER SECTION 148 AS WELL AS SERVICE AND WITHOUT NOTING THE STATUS AND T HE REASONS OF NON SERVICE OF THE SAID NOTICE THE AO PROCEEDED TO FRAM E THE ASSESSMENT EX PARTE. THE AO HAS ALSO MENTIONED THAT THE NOTICE ISSUED UNDER SECTION 142(1) AS WELL AS UNDER SECTION 144 OF THE ACT AND THERE WAS NO RESPONSE EVEN TO THOSE NOTICES ISSUED BY THE AO. HOWEVER, THE AO WAS AGAIN SILENT ABOUT THE SERVICE OF THE SAID NOTI CE ISSUED BY THE AO. THUS IT APPEARS THAT THE AO HAS PROCEEDED TO FRAME THE EX PARTE ASSESSMENT IGNORING THE FACT OF SERVICE OF THE NOTI CE AS WELL AS THE DEATH OF THE ASSESSEE PRIOR TO ISSUE OF THE NOTICE UNDER SECTION 148 OF THE ACT. THE ASSESSEE THOUGH POINTED OUT THIS FACT BEFORE THE LD. CIT (A) AND ALSO EXPLAINED THAT SINCE THE SON OF THE DE CEASED ASSESSEE WAS RESIDING IN USA, THEREFORE, THERE WAS NO RESPONSE T O THE NOTICE ISSUED BY THE AO. HOWEVER, THE LD. CIT (A) HAS AGAIN DISMI SSED THE APPEAL OF THE ASSESSEE EX PARTE DUE TO NON APPEARANCE. THE L D. A/R POINTED OUT THAT SINCE NOBODY FROM THE SIDE OF THE ASSESSEE WAS RESIDING IN INDIA, THEREFORE, THE ADDRESS OF THE A/R WAS GIVEN FOR THE PURPOSE OF NOTICES BUT THE LD. CIT (A) HAS NOT ISSUED THE NOTICE TO TH E ADDRESS GIVEN IN FORM NO. 35. WITHOUT GOING INTO THE ISSUE OF EX PA RTE ORDER ISSUED BY THE LD. CIT (A), WE NOTE THAT THE AO HAS ISSUED THE NOTICE UNDER SECTION 148 IN THE NAME OF THE DECEASED ASSESSEE AN D, THEREFORE, THE NOTICE ISSUED UNDER SECTION 148 ITSELF IS NOT A VAL ID NOTICE. IT IS NOT A QUESTION OF SERVICE OF THE NOTICE BUT THE ISSUANCE OF NOTICE UNDER SECTION 148 ITSELF IS INVALID AS THE SAME ISSUED AN D SENT IN THE NAME OF THE DECEASED ASSESSEE. IN CASE DUE TO UNAWARENESS OF DEATH OF THE ASSESSEE, IF THE NOTICE ISSUED IN THE NAME OF DEAD PERSON IS PROPERLY FOLLOWED UP BY THE AO THEN THE AO COULD HAVE ISSUED ANOTHER NOTICE IN ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 13 THE NAME OF THE LEGAL REPRESENTATIVE OF THE DECEASE D ASSESSEE BUT WITHOUT TAKING ANY STEPS TO ISSUE A VALID AND LEGAL NOTICE UNDER SECTION 148 THE AO HAS PROCEEDED ON THE BASIS OF THE INVALI D NOTICE ISSUED UNDER SECTION 148. THEREFORE, IT IS A JURISDICTION AL ISSUE AS NOTICE UNDER SECTION 148 GIVES THE JURISDICTION TO THE AO TO INI TIATE THE REASSESSMENT PROCEEDINGS. ONCE THE NOTICE ITSELF IS NOT VALID A S ISSUED AGAINST THE DEAD PERSON, THEN THE ENTIRE PROCEEDINGS GOT VITIAT ED. THE HONBLE GUJARAT HIGH COURT IN CASE OF DURLABHBHAI KANUBHAI RAJPARA VS. ITO, 114 TAXMANN.COM 481 HAS CONSIDERED THIS ISSUE IN PA RA 5 TO 11 AS UNDER :- 5. LEARNED ADVOCATE SHRI BANDISH SOPARKAR FOR THE PET ITIONER SUBMITTED THAT THE ISSUE IS NO MORE RES-INTEGRA INA SMUCH AS THIS HON'BLE COURT HAS ON MORE THAN ONE OCCASION CONSIDE RED THIS ISSUE AND HELD THAT THE NOTICE UNDER SECTION 148 OF THE A CT AGAINST A DEAD PERSON IS NULLITY AND WITHOUT JURISDICTION AND NO P ROCEEDINGS CAN BE CONTINUED PURSUANT TO SUCH NOTICE. HE RELIED UPON T HE DECISION OF THIS COURT IN CASE OF CHANDRESHBHAI JAYANTIBHAI PAT EL V. ITO [2019] 101 TAXMANN.COM 362/261 TAXMAN 137/413 ITR 276 (GUJ .) AND DECISION IN CASE OF RASID LALA V. ITO [2017] 77 TAXMANN.COM 39 (GUJ.) HE ALSO RELIED UPON THE DECISION OF MADRAS HIGH COURT IN CASE OF ALAMELU VEERAPAN V. IT O (ORDER DATED 7.6.2018 IN WRIT PETITION NO.30060/2017). RELYING U PON THE JUDGMENT IN CASE OF CHANDRESHBHAI JAYANTIBHAI P ATEL (SUPRA), HE CONTENDED THAT THIS COURT HAVE DEALT IN DETAIL WITH REGARD TO THE ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT AGAINST A DE AD PERSON AFTER ANALYSING THE PROVISIONS OF SECTION 2(7), 2(29) REA D WITH SECTIONS 159 AND 292B OF THE ACT. HE PLACED RELIANCE ON THE FOLL OWING FINDINGS OF THE COURT IN THE SAID JUDGMENT: '16. ON BEHALF OF THE REVENUE, IT HAS BEEN CONTENDE D THAT ISSUANCE OF THE NOTICE TO THE DEAD ASSESSEE IS MERE LY A TECHNICAL DEFECT WHICH COULD BE CORRECTED UNDER SECTION 292B OF THE ACT. RELIANCE HAS BEEN PLACED ON THE ABOVE REFERRED DECI SIONS OF THE SUPREME COURT AS WELL AS THE HIGH COURTS FOR CONTEN DING THAT THE PROCEEDINGS WOULD NOT BE NULL AND VOID MERELY B ECAUSE THE NOTICE HAS BEEN ISSUED AGAINST A DEAD PERSON AS THE LEGAL REPRESENTATIVE HAD RECEIVED THE NOTICE AND HAS OBJE CTED TO THE VALIDITY OF THE NOTICE AND FURTHER CONTINUATION OF THE PROCEEDINGS. IN THE OPINION OF THIS COURT, HERE LIE S THE DISTINCTION BETWEEN THOSE CASES AND THE PRESENT CAS E. IN THE RELIED UPON CASES, THE LEGAL REPRESENTATIVE, IN RES PONSE TO THE IMPUGNED NOTICE, FILED RETURN OF INCOME AND PARTICI PATED IN THE ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 14 PROCEEDING AND THEN RAISED AN OBJECTION TO THE VALI DITY OF THE PROCEEDING AND, THEREFORE, THE COURT HELD THAT THIS WAS A CASE OF WAIVER AND THAT A TECHNICAL DEFECT CAN BE WAIVED; W HEREAS IN THIS CASE, RIGHT FROM THE INCEPTION THE PETITIONER HAS OBJECTED TO THE VALIDITY OF THE NOTICE AND THEREAFTER TO THE CO NTINUATION OF THE PROCEEDING AND HAS AT NO POINT OF TIME PARTICIP ATED IN THE PROCEEDING BY FILING THE INCOME TAX RETURN IN RESPO NSE TO THE NOTICE ISSUED UNDER SECTION 148 OF THE ACT. HAD THE PETITIONER RESPONDED TO THE NOTICE BY FILING RETURN OF INCOME, HE COULD HAVE BEEN SAID TO HAVE PARTICIPATED IN THE PROCEEDI NGS, HOWEVER, MERELY BECAUSE THE PETITIONER HAS INFORMED THE ASSESSING OFFICER ABOUT THE DEATH OF THE ASSESSEE A ND ASKED HIM TO DROP THE PROCEEDINGS, IT CANNOT, BY ANY STRETCH OF IMAGINATION, BE CONSTRUED AS THE PETITIONER HAVING PARTICIPATED IN THE PROCEEDINGS. 17. INSOFAR AS RELIANCE PLACED UPON SECTION 292B OF THE ACT IS CONCERNED, THE SAID SECTION, INTER ALIA, PROVIDES T HAT NO NOTICE ISSUED IN PURSUANCE OF ANY OF THE PROVISIONS OF THE ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFECT OR OMISSION IN SUCH NOTICE IF S UCH NOTICE, SUMMONS IS IN SUBSTANCE AND EFFECT IN CONFORMITY WI TH OR ACCORDING TO THE INTENT AND PURPOSE OF THE ACT. 18. THE QUESTION THAT THEREFORE ARISES FOR CONSIDER ATION IS WHETHER THE NOTICE UNDER SECTION 148 OF THE ACT ISS UED AGAINST THE DECEASED ASSESSEE CAN BE SAID TO BE IN CONFORMI TY WITH OR ACCORDING TO THE INTENT AND PURPOSES OF THE ACT. IN THIS REGARD, IT MAY BE NOTED THAT A NOTICE UNDER SECTION 148 OF THE ACT IS A JURISDICTIONAL NOTICE, AND EXISTENCE OF A VALID NOT ICE UNDER SECTION 148 IS A CONDITION PRECEDENT FOR EXERCISE O F JURISDICTION BY THE ASSESSING OFFICER TO ASSESS OR REASSESS UNDE R SECTION 147 OF THE ACT. THE WANT OF A VALID NOTICE AFFECTS THE JURISDICTION OF THE ASSESSING OFFICER TO PROCEED WITH THE ASSESSMEN T AND THUS, AFFECTS THE VALIDITY OF THE PROCEEDINGS FOR ASSESSM ENT OR REASSESSMENT. A NOTICE ISSUED UNDER SECTION 148 OF THE ACT AGAINST A DEAD PERSON IS INVALID, UNLESS THE LEGAL REPRESENTATIVE SUBMITS TO THE JURISDICTION OF THE ASSESSING OFFICE R WITHOUT RAISING ANY OBJECTION. THEREFORE, WHERE THE LEGAL R EPRESENTATIVE DOES NOT WAIVE HIS RIGHT TO A NOTICE UNDER SECTION 148 OF THE ACT, IT CANNOT BE SAID THAT THE NOTICE ISSUED AGAIN ST THE DEAD PERSON IS IN CONFORMITY WITH OR ACCORDING TO THE IN TENT AND PURPOSE OF THE ACT WHICH REQUIRES ISSUANCE OF NOTIC E TO THE ASSESSEE, WHEREUPON THE ASSESSING OFFICER ASSUMES J URISDICTION UNDER SECTION 147 OF THE ACT AND CONSEQUENTLY, THE PROVISIONS OF SECTION 292B OF THE ACT WOULD NOT BE ATTRACTED. IN THE OPINION OF THIS COURT, THE DECISION OF THIS COURT IN THE CA SE OF RASID LALA V. INCOME TAX OFFICER, WARD-1(3)(6) (SUPRA) WO ULD BE ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 15 SQUARELY APPLICABLE TO THE FACTS OF THE PRESENT CAS E. THEREFORE, IN VIEW OF THE PROVISIONS OF SECTION 159(2)(B) OF T HE ACT, IT IS PERMISSIBLE FOR THE ASSESSING OFFICER TO ISSUE A FR ESH NOTICE UNDER SECTION 148 OF THE ACT AGAINST THE LEGAL REPR ESENTATIVE, PROVIDED THAT THE SAME IS NOT BARRED BY LIMITATION; HE, HOWEVER, CANNOT CONTINUE THE PROCEEDINGS ON THE BASIS OF AN INVALID NOTICE ISSUED UNDER SECTION 148 OF THE ACT TO THE D EAD ASSESSEE. 19. IN THE FACTS OF THE PRESENT CASE, AS NOTICED HE REINABOVE, THE NOTICE UNDER SECTION 148 OF THE ACT, WHICH IS A JUR ISDICTIONAL NOTICE, HAS BEEN ISSUED TO A DEAD PERSON. UPON RECE IPT OF SUCH NOTICE, THE LEGAL REPRESENTATIVE HAS RAISED AN OBJE CTION TO THE VALIDITY OF SUCH NOTICE AND HAS NOT COMPLIED WITH T HE SAME. THE LEGAL REPRESENTATIVE NOT HAVING WAIVED THE REQUIREM ENT OF NOTICE UNDER SECTION 148 OF THE ACT AND NOT HAVING SUBMITTED TO THE JURISDICTION OF THE ASSESSING OFFICER PURSUANT TO THE IMPUGNED NOTICE, THE PROVISIONS OF SECTION 292B OF THE ACT WOULD NOT BE ATTRACTED AND HENCE, THE NOTICE UNDER SECTION 148 OF THE ACT HAS TO BE TREATED AS INVALID. IN THE ABS ENCE OF A VALID NOTICE, THE ASSESSING OFFICER HAS NO AUTHORITY TO A SSUME THE JURISDICTION UNDER SECTION 147 OF THE ACT AND, HENC E, CONTINUATION OF THE PROCEEDING UNDER SECTION 147 OF THE ACT PURSUANT TO SUCH INVALID NOTICE, IS WITHOUT AUTHORI TY OF LAW. THE IMPUGNED NOTICE AS WELL AS THE PROCEEDINGS TAKEN PU RSUANT THERETO, THEREFORE, CANNOT BE SUSTAINED.' 6. ON THE OTHER HAND, LEARNED ADVOCATE SHRI NIKUNT RA VAL WITH LEARNED ADVOCATE MS. KALPANA RAVAL REITERATED WHAT IS STATE D IN THE ORDERS DATED 25.7.2018 AND 8.8.2018 WHEREBY THE RESPONDENT HAS REJECTED THE OBJECTIONS RAISED BY THE PETITIONER AND HELD THAT N OTICE UNDER SECTION 148 OF THE ACT IS VALIDATED AS PER THE PROVISIONS O F SECTION 292B OF THE ACT. HE ALSO REFERRED TO THE RELEVANT PORTION OF TH E AFFIDAVIT-IN-REPLY TO CONTEND THAT THE PETITIONER HAS NEVER INFORMED THE RESPONDENT WITH REGARD TO THE DEMISE OF HIS FATHER LATE SHRI KANUBHAI NAGJIBHAI RAJPARA AND NAMES AND ADDRE SSES OF LEGAL REPRESENTATIVES HAVE NEVER BEEN FURNISHED. HE ALSO SUBMITTED THAT THE PERMANENT ACCOUNT NUMBER OF LATE SHRI KANUBHAI NAGJIBHAI RAJPARA REMAINED ACTIVE WHI CH INDICATED FOR THE PURPOSE OF DEPARTMENT THAT THE TAXPAYER WAS ALI VE. MOREOVER, HE RELIED ON PROVISIONS OF SECTION 159 OF THE ACT TO C ONTEND THAT UNLESS INFORMATION OF DECEASED TAXPAYER HAS BEEN PROVIDED AND UPLOADED BY THE LEGAL REPRESENTATIVES, NO ACTION CAN BE TAKEN A GAINST THE LEGAL REPRESENTATIVES AND NO NOTICE CAN BE ISSUED AGAINST THE LEGAL REPRESENTATIVES AND, THEREFORE, IMPUGNED NOTICE UND ER SECTION 148 OF THE ACT IS VALIDATED PURSUANT TO PROVISIONS OF SECT ION 292B OF THE ACT. IT WAS SUBMITTED THAT MENTIONING THE NAME OF THE DECEA SED PERSON IN THE NOTICE IS NOTHING BUT CAN ONLY BE SAID TO BE A MIST AKE OR OMISSION AND, ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 16 THEREFORE, SUCH NOTICE IS A VALID NOTICE UNDER SECT ION 148 OF THE ACT AND THE PROCEEDINGS PURSUANT TO SUCH NOTICE ARE VALID P ROCEEDINGS. 7. IN THE PRESENT CASE, THE ASSESSEE-PETITIONER HAS A T FIRST POINT OF TIME OBJECTED TO THE ISSUANCE OF NOTICE UNDER SECTION 14 8 OF THE ACT AND HAS NOT PARTICIPATED OR FILED ANY RETURN PURSUANT TO NO TICE. THEREFORE, LEGAL REPRESENTATIVES NOT HAVING WAIVED REQUIREMENT OF NO TICE UNDER SECTION 148 OF THE ACT AND NOT HAVING SUBMITTED TO THE JURI SDICTION OF THE ASSESSING OFFICER PURSUANT TO IMPUGNED NOTICE, PROV ISIONS OF SECTION 292A OF THE ACT ALSO WOULD NOT BE ATTRACTED AND HEN CE NOTICE UNDER SECTION 148 OF THE ACT HAS TO BE TREATED AS INVALID . 8. THE FACTS IN THE PRESENT CASE ARE IDENTICAL TO THE CASE OF CHANDRESHBHAI JAYANTIBHAI PATEL (SUPRA) , AS IN THE FACTS OF THE PRESENT CASE ALSO FATHER OF THE PETITIONER EXPI RED ON 12.6.2016 AND IMPUGNED NOTICE WAS ISSUED ON 28.3.2018. IN FACTS O F THE PRESENT CASE, EVEN PRIOR TO ISSUANCE OF NOTICE, DEPARTMENT WAS AW ARE ABOUT THE DEATH OF THE PETITIONER'S FATHER SINCE ON 13.3.2018 IN RESPONSE TO THE SUMMONS ISSUED UNDER SECTION 131(1A) OF THE ACT, TH E PETITIONER HAD INTIMATED TO THE DEPARTMENT ABOUT THE DEATH OF HIS FATHER. THEREFORE, IT CANNOT BE SAID THAT THE RESPONDENT WAS NOT AWARE AB OUT THE DEATH OF THE FATHER OF THE PETITIONER AND HE COULD HAVE BELA TEDLY ISSUED NOTICE UNDER SECTION 159 OF THE ACT UPON THE LEGAL REPRESE NTATIVES OF LATE SHRI KANUBHAI NAGJIBHAI RAJPARA. 9. THE CONTENTION ADVANCED BY THE LEARNED SENIOR STAN DING COUNSEL FOR THE RESPONDENT THAT SINCE PERMANENT ACCOUNT NUMBER OF LATE SHRI KANUBHAI NAGJIBHAI RAJPARA WAS ACTIVE, IT CAN BE PRESUMED THAT TAX PAYER WAS ALIVE, CANNOT BE SUSTAINED IN VI EW OF THE FACT THAT ONLY BECAUSE PERMANENT ACCOUNT NUMBER IS ACTIVE, PE TITIONER OR ANY ASSESSEE IS NOT LIABLE TO FILE THE RETURN OF INCOME AND ON THAT BASIS IT CANNOT BE PRESUMED THAT THE ASSESSEE IS ALIVE, MORE PARTICULARLY, WHEN THE DEPARTMENT IS MADE TO KNOW ABOUT THE DEATH OF T HE ASSESSEE PRIOR TO ISSUANCE OF THE IMPUGNED NOTICE. 10. IN VIEW OF THE AFORESAID SETTLED LEGAL PROPOSITION THAT NO VALID NOTICE CAN BE ISSUED AGAINST A DEAD PERSON, THE IMP UGNED NOTICE IS REQUIRED TO BE QUASHED AND SET ASIDE. 11. FOR THE FOREGOING REASONS, PETITION SUCCEEDS AND I S ACCORDINGLY ALLOWED. RESULTANTLY, IMPUGNED NOTICE DATED 28.3.20 18 ISSUED BY THE RESPONDENT UNDER SECTION 148 OF THE ACT AS WELL AS FURTHER PROCEEDINGS THERETO ARE QUASHED AND SET ASIDE. THE SAID DECISION WAS CHALLENGED BY THE REVENUE BEF ORE THE HONBLE SUPREME COURT, HOWEVER, THE SLP FILED BY THE REVENU E HAS BEEN ITA NO. 1526/JP/2018 SH. SHAMBHU DAYAL, KOTPUTLI VS. ITO, BEHROR 17 DISMISSED BY THE HONBLE SUPREME COURT VIDE ORDER D ATED 18 TH OCTOBER, 2019 REPORTED IN 114 TAXMAN.COM. 482. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WHEN THE NOTICE ISSUED U NDER SECTION 148 AGAINST THE DECEASED PERSON AS WELL AS THE ASSESSME NT FRAMED BY THE AO IN THE NAME OF THE DECEASED ASSESSEE THEN THE IM PUGNED ASSESSMENT ORDER PASSED BY THE AO IS INVALID FOR WA NT OF VALID NOTICE AS WELL AS THE ASSESSMENT FRAMED AGAINST THE DEAD P ERSON. ACCORDINGLY THE SAME IS QUASHED. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27/08/2020. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27/08/2020 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SH. SHAMBHU DAYAL, KOTPUTLI 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD -01, BEHROR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 1526/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR