Abdulvahed A. Sheikh, Legal Heirof Late Smt. Sarifaben Bikhubhai Shek, Ahmedabad V. The ITO, Ward-7(2)(5), Ahmedabad

ITA 2948/AHD/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9616 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 27-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.S. SHUKLA
• Keywords: Value adopted by valuation officer; Invalid notice; Depreciation; Period of limitation; Cost of acquisition; Fair market value; Reason to believe; Reassessment proceedings; Co-operative Credit Society; Set aside
• Section: 147; 148; 28; 2; 139; 54F; 142(1); 133(6); 292BB; 191; 113; 153; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “SMC” BENCH (Conducted Through Virtual Court) Before: Shri Rajpal Yadav, Vice President And Ms. Annapurna Gupta, Accountant Member Abdulvahed A. Sheikh Legal heir of late Smt. Sarifaben Bikhubhai Shekh C/o. halimaben Bikhubhai Shekh Chhota Bhagat I Khadki, Opp. Durga mata Pole, Kalupur, Panchpatti, Ahmedabad- 380001 PAN: GYQPS8462G (Appellant) Vs The Income Tax Officer, Ward-7(2)(5), Ahmedabad (Respondent) Appellant by : Shri A.C. Shah, A.R. Respondent by : Shri S. S. Shukla, Sr. D.R. Date of hearing : 22-12-2021 Date of pronouncement : 28-01-2022 आदेश/ORDER PER : ANNAPURNA GUPTA, ACCOUNTANT MEMBER:- The present appeal has been filed by the Assessee against the order passed by the Commissioner of Income Tax (Appeals)-7, Ahmedabad, (in short referred to as CIT(A)), dated 25-10-2017, u/s. 250(6) of the Income Tax Act, 1961(hereinafter referred to as the “Act”) pertaining to Assessment Year (A.Y) 2012-13. 2. Briefly stated, reassessment proceedings u/s 147 of the Act in the present case were initiated on the assessee for the impugned assessment year on information ITA No. 2948/Ahd/2017 Assessment Year 2012-13 I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 2 received by the Assessing Officer (A.O.) that the assssee had sold immovable property during the year along with other Co-owners and his share in the transaction was Rs. 35,79,625/- ,but no return of income had been filed by the asseseee. Subsequently assessment was framed , subjecting the Long Term Capital Gain earned thereon, amounting to Rs. 32,63,644/-, to tax by taking the assessee’s share as the sale consideration received and reducing therefrom the cost of acquisition on the basis of DVO report in the case of one of the Co-owners Shri Ramjanibhai Bikhubhai Shekh. 2.1. The assessee challenged the assessment so framed before the Ld. CIT(A) where, despite several opportunities given, none appeared on behalf of the assessee and the Ld. CIT(A) accordingly noted that since the assessee had nothing to state in his appeal, she dismissed the appeal filed by the assesee. 3. Aggrieved by the same, the assessee has now come up in appeal before us raising the following grounds: 1. The reassessment is bad in law since there is no escapement of income. 2. The learned CIT(A) has erred in passing the exparty order and thereby has erred in confirming the addition of Long Term Capital Gain [LTCG] of Rs. 32,63,644 in as much as the fair market value as on 01-04-1981 should have been adopted as per Registered Valuer Report. 2.1 The appellant says and submits that the AR visited CIT(A) three to four times explained the case. However, the same is not taken into consideration and the order is passed exparty. 3. The DVO Report is not based on facts and without considering the Registered Valuer Report. 4. The appellant prays to admit the additional ground regarding Section 54F claim in respect of residential house purchased. 4. The assessee has also filed additional grounds before us vide communication dated 06.08.2021 as under: 01. The learned AO has passed the assessment order dated 20-12-2016 which is void ab initio on the following grounds: I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 3 (a) The learned AO, Ward - 7(2)(5), Ahmedabad has passed the assessment order without any jurisdiction since all the legal heirs as referred to in Para No. 3 of the assessment order stay at Surat as is evident from the bank pass-book of Bank of Baroda, Shahpore, Surat of the assessee [Para No.6.1 of the assessment order] and therefore as per territorial jurisdiction [Section 120(3)(a)] rest with Assessing Officer, Surat. (b) The Notice under Section 148 dated 11-12-2015 [and not dated 11-12-2016 as mentioned inParaNo.2 of the assessment order since the approval was obtained on 10- 12-2015 and the assessment order is passed on 30-12-2016] is not served to all the legal heirs as referred to in Para No. 3 of the assessment order. (c) The Notice under Section 148 dated 11-12-2015 is served with affixture as per Inspector's Report [Para No.2 of the assessment order] and that in the assessment order it is not mentioned that the notice under Section 148 is affixed where and on what place and on what date and that it is not known whether the affixture is made as per Civil Procedure Code as provided in Section 282(l)(b). (d) The Notice under Section 142(1) dated 06-09-2016 is served with affixture as per Inspector's Report [Para No.2 of the assessment order] and that in the assessment order it is not mentioned that the notice under Section 142(1) is affixed where and on what place and on what date and that it is not known whether the affixture is made as per Civil Procedure Code as provided in Section 282(l)(b). (e) On what date the Notice under Section 133(6) was served to the Court Receiver and that on what date the AO has received the reply from Court Receiver is not mentioned as per Para No. 3 of the assessment order. (f). The Show Cause Notice [SCN] dated 03-10-2016 was served by the speed post to all the legal heirs [as per Para No .4 of the assessment order] but it is not mentioned in the assessment order whether speed post is served to all the legal heirs and if yes, on what date and on what place or whether speed post is returned unserved to any legal heirs or all legal heirs. 02. The learned AO has erred in not accepting the Registered Valuer's Report furnished by letter dated 29-12-2016 - Para No.5 on Page No.3 of top of the assessment order without giving any reasons and has erred in following the DVO Report in case of another co-owners Ramjanibhai Bhikhubhai Shekh without giving any notice to all the legal heirs and therefore the assessment order is void ab initio. 5. During the course of hearing before us, Ld. Counsel for the assessee first made arguments vis-à-vis additional ground no1.3 to the effect that the notice u/s. 148 was not served on the legal representatives at all and therefore the reassessment proceedings was without valid jurisdiction and hence void. Ld.Counsel for the assessee contended that the said ground being a legal ground, with all facts necessary for adjudication available on record, it needed to be admitted. I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 4 6. The Ld. D.R. objected to the said ground being raised before us for the first time. 7. We have heard both the parties and find that the objection of the Ld. D.R. is of no consequence since admittedly the assessee has raised a legal ground before us challenging the validity of the proceedings itself and in view of the decision of the Hon’ble Apex Court in the case of National Thermal Power Company Ltd.229 ITR 383(SC), the same needs to be admitted for adjudication. Order was pronounced in the open court and the hearing of the appeal proceeded with. 7.1. The argument of the Ld. Counsel for the assessee before us vis-à-vis the said ground was that in the facts of the present case the jurisdictional notice u/s. 148 of the Act was issued to a dead person and further this notice was not received by any of the legal heirs of the asseseee and therefore the entire proceedings were invalid and bad in law and the assessment order passed, therefore, needed to be quashed. 8. The Ld. D.R. on the other hand contended that since one of the legal heir had participated in the proceedings, the proceedings could not be held to be null and void merely because the notice had been issued against the dead person. 9. We have heard both the parties. The issue of validity of proceedings where the jurisdictional notice u/s. 148 of the Act for reopening of cases is issued to a dead person has been dealt with by the Jurisdictional High Court in a number of decisions. We shall be dealing with each of the said decisions in chronological order to bring out and to cull out the proposition of law laid down with regard to the said issue. 10. Beginning with the decision of the Jurisdictional High Court in the case of Rasid Lala Vs. ITO, Ward-1(3)(6) reported in (2017) 77 taxmann.com 39 vide judgment dated 29.11.2016, we find that in the facts of the said case a petition under Article I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 5 226 of the Constitution of India was filed to quash the notice issued u/s. 148 of the Act to the assessee who had expired approximately 6 years back since the date of issue of notice. The revenue responded to the notice issued by the Court to the petition filed by the assessee by stating that Section 159 of the Act came to the assistance of the revenue. The Hon’ble High Court ,in this backdrop ,held that where the assessee had expired and was no longer surviving on the date of issue of notice u/s. 148 ,then even as per Section 159 of the Act the notice was required to be issued in the name of the heirs of the deceased assessee. The Hon’ble High Court held that Section 159 of the Act would not be of any assistance to the revenue. Accordingly, the writ petition filed by the asessee was allowed by the Hon’ble High Court, the relevant findings of the Hon’ble High Court at para 5 to 7 of the order is as under: “5. Heard learned advocates for the respective parties at length. 6. It is an admitted position that the assessee died on 2nd December 2009. It is also an admitted fact that the notice under Section 148 of the Income-tax Act, 1961 to re-open the assessment for Assessment Year 2009-2010 has been issued against the dead person i.e., the deceased assessee. Thus, the re-assessment proceedings have been initiated after the death of the assessee. Though it was pointed out by the heir of the deceased assessee that the assesee has expired long back, and therefore, the notice issued in her name and/or against a dead person is not valid, instead of taking corrective measures as provided under Section 292 [b] of the Income-tax Act, 1961 and to issue fresh notice against the legal heirs of the deceased, Assessing Officer has continued with the re- assessment proceedings against the dead person. Section 159 of the Income-tax Act which has been relied upon by the learned counsel for the Revenue shall not be applicable to the facts of the case on hand. 7. In the present case, admittedly, the reassessment proceedings have been initiated against the dead person and that too after a long delay, therefore, even if Section 159 of the Act is attracted, in that case also, the notice was required to be issued against and in the name of the heirs of deceased assessee. Under the circumstances, in the facts and circumstances of the case, Section 159 of the Act shall not be of any assistance to the revenue. “ I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 6 11. The issue thereafter came up before the Hon’ble High Court in the case of Jaydeepkumar Dhirajlal Thakkar vs. ITO reported in 401 ITR 302 (Guj), judgment dated 22.01.2018, wherein relying upon the aforesaid decision of the jurisdictional High Court in the case of Rasid Lala(supra), holding that where the assessee was deceased on the date of issue of notice u/s. 148, Section 159 required notice u/s. 148 to be issued to the legal representatives/ heirs of the assessee and not against the deceased. The Hon’ble High Court further went on to hold that the provisions of Section 292 BB of the Act, providing that where assessee appears in any proceeding and cooperates in any enquiry relating to an assessment or re-assessment, it shall be deemed that any notice which has been duly served upon him and the assessee shall be precluded from raising any objection in any proceedings or enquiry under the Act vis-a-vis the irregularity of the notice ,also did not apply since the assessee had objected to the completion of the re-assessment.The relevant findings of the Hon’ble High Court at para 7 to 12 of the order is as under: 7.This court has considered the submissions advanced on behalf of the respective parties and has perused the decisions cited at the bar. 8. It is an admitted position that Shri Dhirajlal Dayaljibhai Thakkar, father of the petitioner has passed away on 19.08.2012. Against the assessment order passed against the deceased, the petitioner herein had preferred an appeal as a legal heir of late Shri Dhirajlal Dayaljibhai Thakkar and, therefore, the respondent was well aware of this fact. Against the order passed by the Commissioner (Appeals) the department has preferred an appeal before the Tribunal, wherein the name of the petitioner is reflected as the legal heir of Shri Dhirajlal Dayaljibhai Thakkar. While seeking to reopen the assessment, the Assessing Officer has issued notice dated 30.03.2017 in relation to the assessment year 2010-11 to Shri Dhirajlal Dayaljibhai Thakkar. Admittedly, the notice has been issued against a dead person. This court in the case of Rasid Lala (supra) wherein the re-assessment proceedings had been initiated after the death of the assessee and the notice was issued against a dead person, held that the reassessment proceedings having been initiated against the dead person and that too after a long delay, even if section 159 of the Act is attracted, in that case also, the notice was required to be issued against and in the name of the heir of the deceased assessee. The court held that in the facts and circumstances of the case, section 159 of the Act would not be of any assistance to the revenue and, accordingly, set aside the impugned notice issued under section 148 of the Act. I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 7 9. The facts of the present case are similar to the facts of that case, inasmuch as the original assessee viz. father of the petitioner passed away on 19.08.2012. The petitioner had informed the revenue authorities about the same in the year 2013. The authorities were very well aware that the petitioner is the heir and legal representative of the deceased assessee, despite which, more than four years after the death of the assessee, the impugned notice has been issued in his name, namely against the deceased assessee. The above decision would be therefore squarely applicable to the present case. 10. On behalf of the respondent, reliance was placed upon section 159 and section 292B read with section 292BB of the Act. Insofar as the provisions of section 159 of the Act are concerned, this court in the above decision has held that the same would not be applicable where the assessee had passed away and the notice has not been issued in favour of the heir of the deceased. On a plain reading of section 159 of the Act, it is apparent that for the purpose of making an assessment, (including an assessment, reassessment or re- computation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of sub-section (1) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative. Therefore, in the light of the provisions of section 159 of the Act the proceedings are required to be initiated against a legal representative and not against the deceased. The impugned notice under section 148 of the Act is therefore, not in consonance with the provisions of section 159 of the Act. 11. Insofar as the provisions of section 292B of the Act are concerned, the same would not be applicable in the facts of the present case. As regards section 292BB of the Act, the same provides that where an assessee appears in any proceeding and cooperates in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of the Act, which is required to be served upon him, has been duly served upon him in time in accordance with the provisions of the Act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under the Act that the notice was — (a) not served upon him; or (b) not served upon him in time; or (c) served upon him in an improper manner. The proviso thereto says that nothing contained in the section shall apply where the assessee has raised such objection before the completion of such assessment or reassessment. In the present case, apart from the petitioner is not the assessee, the petitioner has raised objection before completion of the reassessment and, therefore, the provisions of section 292BB would not be applicable in the facts of the present case. 12. In the light of the above discussion, the impugned notice under section 148 of the Act having been issued against a dead person, is a nullity and cannot be sustained. The petition, therefore, succeeds and is accordingly allowed. The impugned notice dated 30.03.2017 issued against late Shri Dhirajlal Dayaljibhai Thakkar, father of the petitioner, for assessment year 2010-11 is hereby quashed and set aside. RULE is made absolute accordingly. I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 8 12. The matter again came up for consideration before the Hon’ble High Court in the case of Chandreshbhai Jayantibhai Patel vs. ITO where the aforesaid position of law was reiterated vide judgment dated 10.12.2018 reported in [2019] 413 ITR 276(Guj). The Hon’ble High Court passed a detailed judgment taking note of the various provisions of law defining the term assessee u/s. 2(7) of the Act, the term legal representative u/s. 2(29) of the Act, the provisions applicable to legal representatives u/s. 159 of the Act and the provisions of Section 292B/BB of the Act relating to return of income etc. not to be invalid on certain grounds and notice deemed to be valid in certain circumstances. Taking note of the above, the Hon’ble High Court held that the legal representatives of the deceased assessee are to be deemed as assessee’s and as per the provisions of Section 159 where the assessee had expired prior to the issue of notice u/s 148 of the Act then the proceedings had to be taken against the legal representative/s as per Section 159(2)(b) of the Act, meaning thereby that in pursuance to notice issued u/s. 148 of the Act to a dead person, proceedings cannot be continued against the legal representative and notice u/s. 148 is to be issued to the legal representatives. The contentions of the revenue that the issuance of notice to a dead person is some technical defect which can be corrected u/s. 292B, The Hon’ble High Court held that the notice issued u/s. 148 against a dead person is invalid , unless the legal representatives submit to the jurisdiction of the Assessing Officer without raising any objection on receipt of the notice.The Hon’ble High Court noted that where the legal representatives filed return of income in response to notice u/s 148 of the Act and thus participated in the proceedings, it could be said that the legal representatives had waived their right to notice u/s. 148 and the notice therefore could not be said to be invalid. The relevant findings of the Hon’ble High Court at para 7 to 20 of the order is as under: In the backdrop of the rival submissions, the facts as emerging from the record of the case may be adverted to. The impugned notice dated 28.03.2018 is issued to Shri Jayantilal Harilal Patel, father of the petitioner, seeking to reopen the assessment for assessment year 2011-12 under section 148 of the Income Tax Act, 1961. By a letter dated 27.04.2018 addressed to the Income Tax Officer, the petitioner informed him that his father Shri I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 9 Jayantilal Harilal Patel has passed away on 24.06.2015, enclosing therewith a death certificate and further being his son and in his capacity as legal heir, requested him to drop the proceedings. Thereafter, another notice dated 10.07.2018 came to be issued under sub-section (1) of section 142 of the Act to Shri Jayantilal Harilal Patel calling upon him to furnish the details mentioned therein. In the annexure to the said notice, the assessee was called upon to show cause as to why penalty proceedings under section 217F of the Act should not be initiated in his case as he had not furnished return of income in response to the notice under section 148 and stating that this may be treated as a notice under section 142(1) read with section 129 of the Income Tax Act, 1961. 8. The petitioner addressed a letter dated 02.08.2018 to the Income Tax Officer objecting to the notices issued under section 148 as well as under section 142(1) of the Act and drew his attention to the earlier letter dated 27.04.2018 informing him about the death of his father and requesting him to drop the proceedings. The attention of the Income Tax Officer was further invited to the provisions of section 159 of the Act, to submit that the proceedings are required to be initiated against a legal representative and not against the deceased and, therefore, the notices issued to the dead person are invalid. Reliance was placed upon the decision of this court in Jaydeep Kumar Dhirajlal Thakkar v. Income Tax Officer, (2018) 401 ITR 302 (Guj.) and Vipin Walia v. Income Tax Officer, (2016) 381 ITR 19 (Delhi). 9. Thereafter, by a notice dated 03.08.2018 issued under section 142(1) of the Act, the respondent called upon the petitioner as legal heir of deceased Shri Jayantilal Harilal Patel to furnish the documents mentioned therein. In the annexure thereto, the petitioner is called upon to show cause as to why penalty proceedings under section 217F of the Act should not be initiated in his case as he had not furnished return of income in response to the notice under section 148 of the Act and stating that this may be treated as notice under section 142(1) read with section 129 of the Income Tax Act, 1961. 10. By an order dated 14.08.2018, the respondent disposed of the objections raised by the petitioner stating that the notice under section 148 of the Act was issued in the name of the deceased as the department was not aware of the death of the assessee. It is only when the legal heir Shri Chandreshbhai Jayantilal Patel (the petitioner herein) filed a letter dated 27.04.2018 along with a copy of the assessee's death certificate, that this fact came to the notice of that office. It is stated that since the assessee's son - legal heir had received the notice (stated to have been received through the neighbour) and participated in the proceedings; the defect in issue of the notice is automatically cured. Reliance was placed upon the decision of the Madhya Pradesh High Court in the case of Kausalyabai v. Commissioner of Income Tax, 238 ITR 1008 (MP), wherein after the death of the assessee, the notice was issued in the name of a person who was dead. The court observed that the widow of such person participated in the assessment proceedings and hence, the defect in the notice stood automatically cured. It is further stated in the order disposing of the objections that even if the notice dated 28.03.2018 is issued defectively in the name of the deceased assessee, then also, as per the provisions of section 292B of the Act, the same cannot be held to be invalid. I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 10 11. Insofar as the contention raised by the petitioner based on section 159 of the Act is concerned, the Assessing Officer observed that in this case, the assessee (the petitioner) had introduced himself as a son of the deceased assessee and as legal heir and has produced death certificate in response to the notice issued under section 148 of the Act. Therefore, as the legal heir, upon being served with the notice under section 148, has participated in the proceedings, the reassessment proceedings initiated are legal and valid. Reliance has been placed upon the decision of the Madras High Court in the case of V. Ramanathan v. Commissioner of Income Tax, (1963) 49 ITR 881 (Madras). It is further stated therein that it is not in dispute that Shri Chandreshbhai J. Patel is the legal heir of the deceased assessee; therefore, the proceedings initiated against the legal representative/legal heir are valid and legal. 12. In the backdrop of the aforesaid facts, it is an admitted position that the notice under section 148 of the Act was issued to a dead person. The petitioner being the heir and legal representative of the deceased, upon receipt of the notice, immediately raised objection against the validity of the impugned notice and did not submit to the jurisdiction of the Assessing Officer by filing a return of income, but kept on objecting to the continuation of the assessment proceedings pursuant to the impugned notice. The Assessing Officer, however, instead of taking corrective steps under section 292B of the Act and issuing notice to the heirs and legal representatives, insisted on continuing with the proceedings pursuant to the impugned notice which was issued in the name of a dead person. Since strong reliance has been placed by the learned counsel for the respondent on the provisions of section 2(7) and 2(29) read with sections 159 and 292B of the Act, reference may be made to the said provisions, which read as under: "Section 2(7) "assessee" means a person by whom any tax or any other sum of money is payable under this Act, and includes - (a) every person in respect of whom any proceeding under the Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person; (b) every person who is deemed to be an assessee under any provision of this Act; (c) every person who is deemed to be an assessee in default under any provision of this Act; "Section 2(29) "legal representative" has the meaning assigned to it in clause (11) of section 2 of the Code of Civil Procedure, 1908;" "159. Legal representatives. - (1) Where a person dies, his legal representative shall be liable to pay any sum which the deceased I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 11 would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. (2) For the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of subsection (1).- (a) any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased; (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) all the provisions of this Act shall apply accordingly. (3) The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee. (4) Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains undercharged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value of the asset so charged, disposed of, or parted with. (5) The provisions of sub-section (2) of section 161, section 162 and section 167, shall, so far as may be and to the extent to which they are not inconsistent with the provisions of this section, apply in relation to a legal representative. (6) The liability of a legal representative under this section shall, subject to the provisions of sub-section (4) and sub-section (5), be limited to the extent to which the estate is capable of meeting the liability." "292B. Return of income, etc., not to be invalid on certain grounds. - No return of income, assessment, notice, summons or other proceeding furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 12 in substance and effect in conformity with or according to the intent and purpose of this Act." 13. Thus, the expression "assessee" includes every person who is deemed to be an assessee under any provision of the Act. Sub-section (3) of section 159 of the Act, postulates that the legal representative of the deceased shall, for the purposes of the Act, be deemed to be an assessee. Sub-section (2) of section 159 of the Act says that for the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of sub- section (1), - (a) any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased; (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and (c) all the provisions of the Act shall apply accordingly. 14. Thus, clause (a) of sub-section (2) of section 159 of the Act provides for the eventuality where a proceeding has already been initiated against the deceased before his death, in which case such proceeding shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased. In the present case, the proceeding under section 147 of the Act had not been initiated against the deceased before his death, and hence, clause (a) would not be applicable in the facts of this case. 15. Clause (b) of sub-section (2) of section 159 of the Act provides that any proceeding which could have been taken against the deceased if he had survived may be taken against the legal representative. The present case would, therefore, fall within the ambit of section 159(2)(b) of the Act and, hence, the proceeding can be taken against the legal representative. Now, it cannot be gainsaid that a proceeding under section 147 of the Act of reopening the assessment is initiated by issuance of notice under section 148 of the Act, and as a necessary corollary, therefore, for taking a proceeding under that section against the legal representative, necessary notice under section 148 of the Act would be required to be issued to him. In the present case, the impugned notice under section 148 of the Act has been issued against the deceased assessee. In the opinion of this court, since this is not a case falling under clause (a) of sub-section (2) of section 159 of the Act, the proceeding pursuant to the notice under section 148 of the Act issued to the dead person, cannot be continued against the legal representative. 16. On behalf of the revenue, it has been contended that issuance of the notice to the dead assessee is merely a technical defect which could be corrected under section 292B of the Act. Reliance has been placed on the I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 13 above referred decisions of the Supreme Court as well as the High Courts for contending that the proceedings would not be null and void merely because the notice has been issued against a dead person as the legal representative had received the notice and has objected to the validity of the notice and further continuation of the proceedings. In the opinion of this court, here lies the distinction between those cases and the present case. In the relied upon cases, the legal representative, in response to the impugned notice, filed return of income and participated in the proceeding and then raised an objection to the validity of the proceeding and, therefore, the court held that this was a case of waiver and that a technical defect can be waived; whereas in this case, right from the inception the petitioner has objected to the validity of the notice and thereafter to the continuation of the proceeding and has at no point of time participated in the proceeding by filing the income tax return in response 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 proceedings, however, merely because the petitioner has informed the Assessing Officer about the death of the assessee and 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 that 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 such notice, summons is in substance and effect in conformity with or according to the intent and purpose of the Act. 18. The question that therefore arises for consideration is whether the notice under section 148 of the Act issued against the deceased assessee can be said to be in conformity 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 notice under section 148 is a condition precedent for exercise of jurisdiction by the Assessing Officer to assess or reassess under section 147 of the Act. The want of a valid notice affects the jurisdiction of the Assessing Officer to proceed with the assessment and thus, affects the validity of the proceedings for assessment 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 Officer without raising any objection. Therefore, where the legal representative does not waive his right to a notice under section 148 of the Act, it cannot be said that the notice issued against the dead person is in conformity with or according to the intent and purpose of the Act which requires issuance of notice to the assessee, whereupon the Assessing Officer assumes jurisdiction 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 case of Rasid Lala v. Income Tax Officer, Ward-1(3)(6)(supra) would be squarely applicable to the facts of the present case. Therefore, in view of the provisions of section 159(2)(b) of the Act, it is permissible for the Assessing Officer to issue a fresh notice under section 148 of the Act against the legal representative, provided that the same is not barred by limitation; he, however, cannot continue the I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 14 proceedings on the basis of an invalid notice issued under section 148 of the Act to the dead assessee. 19. In the facts of the present case, as noticed hereinabove, the notice under section 148 of the Act, which is a jurisdictional notice, has been issued to a dead person. Upon receipt of such notice, the legal representative has raised an objection to the validity of such notice and has not complied with the same. The legal representative not having waived the requirement 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 absence of a valid notice, the Assessing Officer has no authority to assume the jurisdiction under section 147 of the Act and, hence, continuation of the proceeding under section 147 of the Act pursuant to such invalid notice, is without authority of law. The impugned notice as well as the proceedings taken pursuant thereto, therefore, cannot be sustained. 20. For the foregoing reasons, the petition succeeds and is, accordingly, allowed. The impugned notice dated 28.03.2018 issued by the respondent under section 148 of the Income Tax Act, 1961 as well as all proceedings pursuant thereto, are hereby quashed and set aside. Rule is made absolute accordingly with no order as to costs. 13. In the case of Nanduben Ratilal Patel vs. DCIT, the Hon’ble High Court reiterated the proposition laid down in Chandreshbhai Jayantibhai Patel, vide judgment dated 25.06.2019 reported in [2019] 417 ITR 31.In substance the Hon’ble High Court reiterated the position that where the jurisdictional notice is issued to a dead person and on receipt of the same the legal representatives participated in the proceedings by filing return and otherwise they can be said to have waived the requirements of notice u/s. 148 of the Act and the validity of notice u/s. 148 then cannot be challenged. 14. This position was again reiterated in the case of Urmilaben Anirudhhasinhji Jadeja vs. ITO vide judgment dated 27.08.2019 reported in [2020] 420 ITR 226 and again in the case of Durlabhai Kanubhai Rajpara vs. ITO vide judgment dated 26.03.2019 reported in [2020] 424 ITR 428. 15. As is evident from the above, the proposition of law laid down by the Jurisdictional High Court vis-à-vis the issue of validity of proceedings where the I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 15 jurisdictional notice for reopening cases, u/s. 148 of the Act, is issued on a dead person, is that the proceedings are null and void since the statute requires that where the assessee is deceased the proceedings have to be undertaken on their legal representatives as per Section 159(2)(b) of the Act. The Jurisdictional High Court has consistently held that in such cases where the assessee was deceased on the date of the issue of notice u/s. 148,the same is to be issued on their legal representatives. Going further and taking note of various judicial decisions and the provisions of Section 292B/BB, the Hon’ble High Court has held that the notice shall not be held invalid where the legal representatives, on receipt of such notice issued to a dead person, participate in the proceedings and thus waive their right to issuance of notice u/s. 148 of the Act. 16. Having said so, we now bring out the facts of the case before us for applying the aforesaid proposition of law. As emerges from para 2 to 5 of the assessment order in the present case, the assessee, Late Smt. Sarifaben Bikhubhai Shekh, had died on 29.03.2012, while the notice u/s. 148 was issued subsequently after more than 3 years on 11.12.2015 ( incorrectly noted as 11.12.2015 in assessment order since as per the certified copy of the notice u/s. 148 filed before us by the ld. D.R., the same is dated 11.12.2015). The said notice was returned unserved by the postal department and thereafter notice was served by affixture by the A.O. on the 20 th January 2016 .Certified Copy of the panchnama of the witnesses to the affixture was placed before us by the Ld. D.R. bringing out the aforesaid fact. Subsequently notice u/s. 133(6) of the Act issued to the Court in response to which it was divulged that assessee had died on 29.03.2012 and she had several legal heirs. The A.O. thereafter issued notice u/s. 142(1) to all the legal heirs to which none responded and thereafter a show cause notice was issued to all the legal heirs on 28.11.2016 in response to which only one of the legal heir, i.e, Abdulvahed Abdulrashid Shekh, responded through duly Authorized Representative C.A. Faruk Y. Patel. Para 2-5 of the assessment order bring out the above facts as under: I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 16 2. Notice u/s 148 of the act was issued on 11/12/2015 after recording the reasons and taking the necessary approval vide approval letter dated 10/12/2015 and duly served on the assessee. But the notice returned unserved by postal department. Then this notice was served by affixture by the then AO. The affixture was made by Kishor kumar inspector of income tax O/o. ITO ward 7(2)(5), Ahmedabad. Subsequently notice u/s 142(1) of the Act was issued on 06/09/2016 along with a specific questionnaire by the under signed, on change in incumbent and served by the undersigned. The affixture was made by Kishor- kumar inspector of income tax O/o ITO ward 7(2)(5), Ahmedabad. 3. Issued notice u/s 133(6) of the Act., calling information, to the court receiver of C.S. No. 4149/78, on receiving the reply it is came to know that the assessee has died on 29/03/2012 and her legal heirs are : (1) Afsarbhai Abdul Rashid Shaikh (2) Vahed . Abdul Rashid Shaikh (3)Binaz Abdul Rashid Shaikh (4) Shahin W/o Sohilbhai Shaikh (5) Shahnavaj Hanifbhai Dhoni (6) Mohammed Hanif rajubhai Shaikh (7) deceased Rubiben Abdul rashid Shaikh . 4. Therefore, notice u/s 142(1) of the Act was issued on 03/10/2016 along with a specific questionnaire by the under signed, on change in incumbent and duly served by speed post to all the legal heirs of the assessee. In response to the notice u/s.142 (1) dated 3.10.2016 neither anyone has attended the hearing nor submitted any reply. Then, this office has issued a show cause notice for proposed addition on 28/11/2016 and duly served to all the legal heirs by speed post. 5. After receiving the show cause notice only an authority letter of CA Faruk Y Patel, duly authorized by one of the legal heirs Shri Vahed Abdul Rashid Shaikh has been received by speed post in this office on 13/12/2016. On 29.12.2016 the representative of the assessee has attended and filed written submission with three different letters in response to the show cause and earlier notices issued. Same has been verified and kept on record. The contention of the assesse has been consider but the same has not acceptable in view of the DVO report received on 29.12.2016 vide letter No. DVO/ITD/Ahm/2016-17/882 dated 28.12.2016. 17. Certified copy of the notices issued u/s. 148 and 142(1) in the present case were filed by the ld. D.R. before us. A perusal of the same reveals that while the notice u/s. 148 was issued to the deceased assessee at the address: To Smt. Sharifaben Bikhubhai, Near Jail Compound Gate, City Civil Court, Ahmedabad I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 17 17.1. The notices issues to the legal heirs u/s. 142(1) were not at this address but at a different address. In the case of Afsarbhai Abdul Rashid Shaikh L/h To Afsarbhai Abdul Rashid Shaikh, The Legal Heir of Smt. Sharifaben Bikhubhai, 402, Bukhari Palace, Near Pirkhajuri Masjid, Surat-395003 17.2. In the case of Vahed Abdul Rashid Shaikh, the legal heir who responded to the show cause notice To Vahed Abdul Rashid Shaikh, The Legal Heir of Smt. Sharifaben Bikhubhai, 12/1859, Sosa Mohalla, Near J.J. School, Surat-395003 18. The facts that emerge from the above therefore is that: (1) The jurisdictional notice u/s. 148 of the Act was issued and served on an already deceased assessee. (2) The aforesaid notice was neither served to nor received by the legal representatives who resided in another city, i.e Surat, as opposed to Ahmedabad in which the assessee resided. The legal heir who responded to the show cause notice , Vahed Abdul Rashid Shaikh , resided in Surat where notices u/s 142(1) and the show cause notice was served. (3). No notice u/s. 148 of the Act was issued to the legal heirs in their names. (4) Only notice u/s 142(1) of the Act was issued to the legal heirs which remained unresponded. (5)The participation by one of the assessee’s legal heirs was only in response to the show cause notice issued to it. 19. In the above factual backdrop of the notice u/s 148 of the Act being issued and served on an already deceased assessee, who had expired more than three years back , the absence of issuance of this jurisdictional notice in the name of the legal heirs, as I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 18 required by law, and also service of the same on the legal heirs in any capacity, i.e in the name of the deceased assessee or even in their own name, the defects in the service of notice cannot be said to be an irregularity which can be cured by waiver. The Hon’ble jurisdictional High Court, we find, has held the waiver of the requirement of issuance of notice u/s 148 to the legal heirs in the fact situation where the legal heirs participated in the proceedings on receipt of and in response to notice issued in the name of the deceased assessee. In the present case the defect in not confined to not being issued in the name of the legal heirs only but has also not been served or received by them. The legal heirs are in fact not even aware of the proceedings being undertaken on them. The question of waiver of notice u/s 148 therefore cannot arise where the person concerned has no knowledge of the proceeding initiated. Being a jurisdictional notice, these defects cannot be termed as mere irregularities which can be cured by participation of the assesses/legal heirs, even as per the aforementioned decisions of the jurisdictional High Court.The Hon’ble jurisdictional High Court in the case of P.V Doshi vs Commissioner of Income Tax (1978) 113 ITR 22(Guj) has held that provisions conferring jurisdiction cannot be conferred on the authority by mere consent. The Hon’ble High Court has elaborately dealt with the same at para 4-12 of the order as under: 4.In order to consider whether such a question going to the root of the jurisdiction by initiating proceeding of reassessment under s. 147 could be waived or not, it would be proper at this stage to consider the settled legal position is to the nature of this reassessment proceeding under s. 147 or the corresponding s. 34 of the earlier Act in the light of the safeguards which have been laid down as conditions precedent or as fetters on the jurisdiction of the authority in wider public interest. Sec. 147 provides for reassessment of the income escaping assessment as under: "147. If— (a) the ITO has reason to believe that, by reason of the omission or failure on the part of an assessee to make a return under s. 139 for any assessment year to the ITO or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year, or I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 19 (b) notwithstanding that there has been no omission or failure as mentioned in cl. (a) on the part of the assessee, the ITO has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may, subject to the provisions of ss. 148 to 153, assess or reassess such income or recompute the loss or the depreciation allowance, as the case may be, for the assessment year concerned (hereafter in ss. 148 to 153 referred to as the relevant assessment year)." It is not necessary to consider the Explanation. Sec. 148 provides for issue of notice where income has escaped assessment as under: "148. (1) Before making the assessment, reassessment or recomputation under s. 147, the ITO shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub-s. (2) of s. 139; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section. (2) The ITO shall, before issuing any notice under this section, record his reasons for doing so." Sec. 149 provides for time limits for such notice. Sec. 151 provides as under: "(1) No notice shall be issued under s. 148 after the expiry of eight years from the end of the relevant assessment year, unless the Board is satisfied on the reasons recorded by the ITO that it is a fit case for the issue of such notice. (2) No notice shall be issued under s. 148 after the expiry of four years from the end of the relevant assessment year, unless the CIT is satisfied on the reasons recorded by the ITO that it is a fit case for the issue of such notice." 5. The provision being for reopening the finally concluded assessment this special provision has been considered as properly hedged in by these various statutory safeguards, because the income has escaped the original assessment even when the procedure of original assessment contemplated such wide powers of appeal, revision and even rectification under the various provisions of the Act. That is why the conditions laid down for the reasonable belief to be reached by the ITO under sub- cl. (a) or under sub-cl. (b), and his recording of the reasons under s. 148(2), and for the sanction before issuing the said notice under s. 148 by the higher authorities under s. 151 have been considered as mandatory conditions. The reasons which are now in terms under s. 148(2) required to be recorded by the ITO have not to be communicated to the assessee but they are to be available for the authorities who have to give the sanction. 6. In Kasturbhai Lalbhai vs. R. K. Malhotra, ITO (1971) 80 ITR 188 (Guj) Bhagwati C.J. (as he then was) in terms pointed out at page 191 that it must be remembered that s. 147 empowered the ITO to disturb the finality of an assessment already made and to assess or reassess the income of the assessee. Such an action is bound to result in considerable anxiety and harassment to the assessee and the legislature has, therefore, imposed certain conditions subject to which alone the ITO can reopen an assessment which is already concluded. These conditions are succinctly stated by their I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 20 Lordships in Johri Lal (HUF) vs. CIT 1973 CTR (SC) 283 : (1973) 88 ITR 439 (SC). There the question had arisen because the ITO had proceeded on the basis of s. 34(1)(b) of the old Act and not on the basis of s. 34(1)(a) and, therefore, it was held that in the absence of material on record to show that the ITO had formed the requisite belief, recorded his reasons for taking action under s. 34(1)(a) and obtained the sanction of the Central Board of Revenue or the CIT, as the case may be, it is not open to the Tribunal to justify the proceedings taken by the ITO under s. 34(1)(a). Three conditions were found to be mandatory by their Lordships. At page 441, it was pointed out that before proceedings under s. 34(1)(a) could be validly initiated, the ITO must have reasons to believe that by reason of the omission or failure on the part of the assessee to make a return of his income under s. 22 for any year or to disclose fully and truly all material facts necessary for his assessment for that year, income, profits and gains chargeable to income-tax have escaped assessment for that year, or have been under assessed or assessed at too low a rate, or have been made the subject-matter of excessive relief under the Act, or excessive loss or depreciation allowance have been computed. The formation of the required opinion by the ITO is a condition precedent. Without formation of such an opinion he will not have jurisdiction to initiate proceedings under s. 34(1)(a). The fulfilment of this condition is not a mere formality but it is mandatory. The failure to fulfil that condition would vitiate the entire proceedings. As per the settled legal position, the ITO would be acting without any jurisdiction if the reason for his belief that the conditions are satisfied did not exist or was not material or relevant to the belief required by that section. Courts would not go into the sufficiency of the reasons which persuaded the ITO to initiate proceedings under s. 34(1)(a) of the Act but the Courts would examine the relevancy of the reasons which persuaded the ITO to take proceedings under s. 34(1)(a). It was further pointed out that the formation of the required belief was not the only requirement. The ITO was further required by s. 34 to record his reasons for taking action under s. 34(1)(a) and obtain the sanction of the Central Board of Revenue or the CIT, as the case may be. It was pointed out that the CIT or the Board of Revenue, while granting sanction would have to examine the reasons given by the ITO and come to an independent decision and the authority in question should not act mechanically. The ITO having himself proceeded only under s. 34(1)(b) and not on the basis of s. 34(1)(a), the order in those circumstances could not be justified under s. 34(1)(a). Therefore, it was held that without the three relevant conditions precedent being first fulfilled, the proceedings could not be initiated for reassessment under s. 34(1)(a). The same would be true for s. 34(1)(b) where the ITO had in consequence of information in his possession to form that belief that income chargeable to tax had escaped assessment for any assessment year. Therefore, these three conditions precedent having been introduced by way of safeguards in wider public interest so that the finally concluded proceedings which at the time of original assessment could be reopened through initial procedure of appeal, revision or rectification before the assessment became final could not be lightly reopened, with the consequent hardship to the assessee and also unnecessary waste of public time and money in such proceedings. Therefore, these are treated as fetters on the jurisdiction of the authority reopening the proceedings under s. 147 and 148 r/w s. 151. That is why in CIT vs. Kurban I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 21 Hussain Ibrahimji Mithiborwala (1971) 82 ITR 821 (SC), their Lordships pointed out that it was well-settled that the jurisdiction of the ITO to reopen assessment under s. 34 was dependent upon the issuance of a valid notice. If the notice issued by him was invalid for any reason, the entire proceedings taken by him would become void for want of jurisdiction. Therefore, the view taken by this Court was upheld that the notice in question by the ITO which sought to reopen the assessment of the assessee for the asst. yr. 1948-49, when in fact he reopened the assessment for the year 1949-50, being an invalid notice, the ITO had no jurisdiction to revise the assessment of the assessee for the year 1949-50. In S. Narayanappa vs. CIT (1967) 63 ITR 219 (SC), at page 222, their Lordships pointed out that the proceeding for assessment or reassessment under s. 34(1)(a) started with the issue of a notice and it was only after the service of the notice that the assessee, whose income was sought to be assessed or reassessed, became a party to those proceedings. The earlier stages of the proceeding for recording the reasons of the ITO and for obtaining the sanction of the CIT were administrative in character and were not quasi-judicial. There was no requirement in any provisions of the Act or any section laying down as a condition for the initiation of proceedings that the reasons which induced the CIT to accord sanction to proceed under s. 34 must also be communicated to the assessee. The ITO need not communicate to the assessee the reasons which led him to initiate the proceedings under s. 34. These reasons have to be considered as pointed out by their Lordships in the other decision, when the matter comes for sanction by the authority. That itself makes it clear that the scheme of these provisions is to lay down these safeguards in the wider public interest by way of fetters on the jurisdiction of the authority itself and they could not be said to be merely for the private benefit of the individual assessee concerned as the assessee concerned is not even intended to be supplied with the reasons for reopening the assessment and the entire matter is looked upon as an administrative matter, at the earlier stages where the ITO is to record his reasons and obtain sanction of the CIT. 7. The legal position about waiver of such a mandatory provision created in the wider public interest to operate as fetter on the jurisdiction of the authority is well settled that there could never be waiver, for the simple reason that in such cases jurisdiction could not be conferred on the authority by mere consent, but only on conditions precedent for the exercise of jurisdiction being fulfilled. If the jurisdiction cannot be conferred by consent, there would be no question of waiver, acquiescence or estoppel or the bar of res judicata being attracted because the order in such cases would lack inherent jurisdiction unless the conditions precedent are fulfilled and it would be a void order or a nullity. The settled distinction between invalidity and nullity is now well brought out in the decision in Dhirendra Nath Gorai vs. Sudhir Chandra Ghosh, AIR 1964 SC 1300, 1304, where their Lordships had gone into this material question as to whether the act in breach of the mandatory provision is per force a nullity. The passage in Macnamara on Nullities and Irregularities, referred to in Ashutosh Sikdar vs. Bihari Lal Kirtania (1907) ILR 35 Cal 61 (FB), at page 72, was in terms relied upon as under: "...no hard and fast line can be drawn between a nullity and an irregularity; but this much is clear, that an irregularity is a deviation from a rule of law I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 22 which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated." Thereafter, their Lordships pointed out that whether a provision fell under one category or the other was not easy of discernment, as in the ultimate analysis, it depended upon the nature, scope and object of the particular provision. Their Lordships in terms approved a workable test laid down by Justice Coleridge in Holmes vs. Russel (1841) 9 Dowl 487 as under: "It is difficult sometimes to distinguish between an irregularity and a nullity; but the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it, it amounts to an irregularity; if he cannot, it is a nullity." Thereafter it was pointed out that a waiver is an intentional relinquishment of a known right, but obviously an objection to jurisdiction could not be waived, for consent could not give a Court jurisdiction where there was none. Even if there was inherent jurisdiction, certain provisions could not be waived. What can be waived would be only those provisions which are for the private benefit and protection of an individual in private capacity, which might be dispensed with without infringing any public right or public policy. 8. This settled legal position was again reiterated in Superintendent of Taxes vs. Onkarmal Nathmal Trust, AIR 1975 SC 2065, where the question had arisen in the context of the Assam Taxation (on Goods Carried by Road and on Inland Waterways) Act, 1961. The assessee had obtained an injunction order against the State in a writ petition challenging the validity of the Act. The assessee had not submitted the return under s. 7(1) and under s. 7(2) a notice had to be issued only within two years from the end of the return period. The procedure of best judgment assessment was laid down in s. 9(4) and the question arose whether, in view of the injunction order obtained by the assessee, ignoring the two years' limit laid down as a fetter for issuance of the notice under s. 7(2), the best judment assessment procedure was permissible. At page 2070, the learned Chief Justice first held that if a return under s. 7(1) was not made, the service of a notice under s. 7(2) of the Act was the only method for initiation of a valid assessment proceeding under the Act. The period of two years under s. 7(2) was a fetter on the power of the authority and was not just a bar of time. It was the scheme of the Act that the service of notice within two years from the end of the return period was an imperative requirement for initiation of assessment proceeding, as also reassessment proceeding under the Act. Further proceeding, at page 2071, their Lordships pointed out the settled legal distinction between the provisions which conferred jurisdiction and provisions which regulated procedure, because jurisdiction could neither be waived nor created by consent, while a procedural provision could be waived by conduct or agreement. Their Lordships pointed out that in that case the assessee could not be said to have waived the provisions of the statute because there could not be any waiver of a statutory requirement or provision which went to the jurisdiction of assessment. The origin of assessment was either an assessee filing a return as contemplated in the Act or an assessee being called upon to file a return as I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 23 contemplated in the Act. The respondents challenged the Act. The order of injunction did not amount to a waiver of the statutory provisions. The issue of a notice under the provisions of the Act related to the exercise of jurisdiction under the Act in all cases. The learned Chief Justice in terms pointed out that the Revenue statutes are based on public policy. The Revenue statutes protect the public on the one hand and confer power on the State on the other. Therefore, even in the context of such a revenue statute like a taxation measure such fetter on the jurisdiction being a fetter laid to protect public on wider ground of public policy, it was held that such provisions which confer jurisdiction on assessment and reassessment could never be waived for the simple reason that jurisdiction could neither be waived nor created by consent. In the concurring judgment his Lordship, Beg. J., at page 2077, also pointed out that if the notice under s. 7(2) was a condition precedent to the exercise of jurisdiction to make the best judment assessment, the doctrine of waiver could never confer jurisdiction so as to enable the parties to avoid the effect of violating a mandatory provision on a jurisdictional matter even by agreement. This decision completely settles the legal position. It makes a distinction between the provisions which confer jurisdiction and provisions which merely regulate the procedure by holding that such provisions which confer jurisdiction or such mandatory provisions which are enacted in public interest on ground of public policy even in such revenue statutes could not be waived, because of the underlying principle that jurisdiction could neither be waived nor created by consent. 9. The decision in Director of Inspection of Income-tax vs. Pooran Mall & Sons 1974 CTR (SC) 243 : (1974) 96 ITR 390 (SC), which is so vehemently relied upon by the learned standing counsel, does not detract from the aforesaid ratio, and in fact, reiterates the same. In that case, the question had arisen regarding the waiver of a provision in s. 132(5) of the IT Act which permitted the ITO to pass an order of seizure within 90 days. The provision was held to be not a mandatory provision and at page 400 it was also pointed out that there was no question of the period of limitation under s. 132(5) involving public interest. It was intended for the benefit of the parties. The settled principle which had been stated on Craies on Statute Law, 6th edition, at page 259, was as under: "As a general rule, the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered as indispensable, and either party may waive them without affecting the jurisdiction of the Court." Therefore, the period of limitation prescribed under s. 132(5) being intended for the benefit of the person concerned, it was held that the assessee could waive that provision. That decision could not, therefore, be invoked in the present context of such a jurisdictional provision which is also a mandatory provision enacted in public interest in this Revenue statute as earlier pointed out and which could never be waived. I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 24 10. Besides, the question of waiver could never be raised if the person had no knowledge of his legal rights so that he could make any such conscious waiver. In the present case, the AAC in his order had pointed out that it was when he perused the order sheet that he found that there were no reasons recorded by the ITO for issuing notice under s. 148. The entry on the order sheet dated September 3, 1963, simply contained the direction: "Issue notice under s. 148", and no reasons were recorded by the ITO before reopening the assessment. Even the relevant sub-section of s. 147 under which the assessment was sought to be reopened was not mentioned. These facts, prima facie, disclosed that the reasons came to the notice of the assessee for the first time when the AAC perused this order sheet and brought this fact to the notice of the assessee. Even on that ground, therefore, there can be no question of any waiver on the facts of the present case. 11. Even the alternative ground of finality of this order of the Tribunal suffers from the same infirmity, as the Tribunal has failed to notice this material distinction between a mere procedural provision which could be waived and such jurisdictional provision or a mandatory provision enacted in public interest which could not be waived, because by consent no jurisdiction could be conferred on the authority unless the conditions precedent were first fulfilled. In Dasa Muni Reddy vs. Appa Rao, AIR 1974 SC 2089, 2092, such a question of waiver was examined also in the context of the bar of estoppel or of res judicata. At page 2091, it was pointed out that want of jurisdiction must be distinguished from irregular or erroneous exercise of jurisdiction. If there is want of jurisdiction the whole proceeding is coram non judice. The absence of a condition necessary to found the jurisdiction to make an order or give a decision deprives the order or decision of any conclusive effect. (See Halsbury's Laws of England, 3rd edition, volume 15, paragraph 384). Further proceeding at page 2092, it was pointed out that just as the Courts normally did not permit contracting out of the Acts so there could be no contracting in. A status of control of premises under the Rent Control Acts could not be acquired either by estoppel or by res judicata. Their Lordships in terms held that the principle was that neither estoppel nor res judicata could give the Court jurisdiction under the Acts which those Acts said it was not to have. Therefore, bar of res judicata or estoppel or waiver were negatived in such a case where the plea was outside the ambit of the Rent Control Act, for the simple reason that as one could not confer jurisdiction by consent, similarly one could not by agreement waive exclusive jurisdiction of the rent Courts over the buildings in question. It is true that s. 254(4) in terms provides that save as provided in s. 256 (which provides for the reference to the High Court), orders passed by the Tribunal on appeal shall be final. That finality or conclusiveness could only arise in respect of orders which are competent orders with jurisdiction and if the proceedings of reassessment are not validly initiated at all, the order would be a void order as per the settled legal position which could never have any finality or conclusiveness. If the original order is without jurisdiction it would be only a nullity confirmed in further appeals. If the essential distinction is borne in mind in such cases when there is such defect of jurisdiction because the conditions to found jurisdiction are absent, the Tribunal also would be suffering from the same defect and it could not confer any jurisdiction on the ITO by making the remand order, because of the settled legal principle that consent could not confer jurisdiction when jurisdiction could be created only by fulfilment of the condition precedent as I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 25 in the present case. Therefore, no question of finality of the remand order could ever arise in the present context, if the mandatory conditions for founding jurisdiction for initiating reassessment proceeding were absent. This is the view in CIT vs. Nanalal Tribhovandas (1975) 100 ITR 734 (Guj), agreeing with the Madras view that there would be no such finality by remand because consent could not confer jurisdiction, and so, such objection in regard to the validity of the notice under s. 34 could be raised before the AAC. 12. The learned standing counsel in this connection marshalled in aid the decision in Northern Railway Co-operative Credit Society Ltd. vs. Industrial Tribunal, Rajasthan, AIR 1967 SC 1182; 31 FJR 511, which could hardly be invoked in the present case. There the High Court in writ jurisdiction had held at the earlier stage that the dispute in question was an industrial dispute and, therefore, the reference being a competent reference, the writ petition was dismissed. The order of the High Court was a final judgment which terminated the independent writ proceeding. It was held at page 1186 that that order having not been appealed before the Supreme Court, it had become final and it was no longer open to the parties to raise a plea of jurisdiction in appeal against the subsequent award given by the Industrial Tribunal after exercising jurisdiction which the Tribunal was permitted to exercise by the order of the High Court. These were competent proceedings and the independent writ proceeding was also finally terminated and, therefore, this final order precluded the parties from reagitating the same question before the Industrial Tribunal. Their Lordships distinguished the earlier decision in Satyadhyan Ghosal vs. Smt. Deorajin Debi, AIR 1960 SC 941, where the question had arisen about the applicability of s. 28 of the Calcutta Thika Tenancy Act, 1949, and the plea having been rejected by the munsif trying a suit, revision, the High Court had held that operation of s. 28 of the Act was not affected by the subsequent amendment Act and the case was remanded to the munsif for disposal according to law. After the final decree was passed by the munsif and the appeal finally came to the Supreme Court, it was held by the Supreme Court that the order of the High Court holding s. 28 to be applicable could not operate as res judicata in appeal before the Supreme Court, because the High Court's order of remand was merely an interlocutory order, which did not terminate the proceeding pending before the munsif and which had not been appealed from at that stage. Consequently, in the appeal from the final decree or order it was open to the party concerned to challenge the correctness of the High Court's decision. The two special features which distinguished that case were: one, that the order of the High Court which was relied upon to invoke the principle of res judicata was an interlocutory order, and the other, that it was made in a pending suit which as a result of that order did not finally terminate. In the present case also the remand order did not terminate the proceedings at the earlier stage. In fact, no question of any bar of res judicata even at the subsequent stage of the same proceeding could arise in the present case for the simple reason that the original order is said to be without jurisdiction. The first condition in invoking any bar of res judicata is the condition about the competence of the Court. Similarly, the provision of finality in this relevant provision in s. 254(4) could also not be attracted in such a case, where the question admittedly, went to the root of the jurisdiction and if that contention was upheld, it would have made all the proceedings of reassessment totally void and without jurisdiction. As per the I.T.A No. 2948/Ahd/2017 A.Y. 2012-13 Page No Abdulvahed A.Sheikh vs. ITO 26 aforesaid settled legal position such a point could not be waived and there can be no question of the earlier remand order operating as a final order, because if such a jurisdictional point could not be waived, even the fact of passing of the remand order by the Tribunal could not confer jurisdiction on the ITO, if the conditions to found his jurisdiction were absent. 20. In view of the above, the jurisdictional notice u/s 148 of the Act having been issued to a dead assessee and the defect therein being not curable by waiver or consent of the legal heirs, the said notice is an invalid notice and the proceedings conducted in pursuance thereof are not sustainable in the eyes of law. The assessment order passed therefore, we hold, is null and void and thus set aside. 20.1. Since, we have held the assessment order passed in the impugned case to be null and void as above, the other grounds are not being dealt with by us. 21. The appeal of the assessee is allowed in above terms. Order pronounced in the open court on 28 -01-2022 Sd/- Sd/- (RAJPAL YADAV) (ANNAPURNA GUPTA) VICE PRESIDENT True Copy ACCOUNTANT MEMBER Ahmedabad : Dated 28/01/2022 आदेश कȧ ĤǓतͧलͪप अĒेͪषत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order/आदेश से, उप/सहायक पंजीकार आयकर अपीलȣय अͬधकरण, अहमदाबाद