Shri Ishwarbhai Maganbhai Desai, Ahmedabad V. The Income Tax Officer, Ward-3, Patan

ITA 90/AHD/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8407 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 10-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRASSON KABRA
• Assessee Lawyers: T P HEMANI
• Keywords: Unexplained cash credit; Period of limitation; Validity of assessment; Time period of passing order
• Section: 142(1); 68; 148; 144

Judgement Text

, - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA NO. 90/AHD/2017 / ASSESSMENT YEAR: 2008-09 SHRI ISHWARBHAI MAGANBHAI DESAI L/H. OF LATE SHRI MAGANBHAI NAGJIBHAI DESAI, 31, NIRAN PARK HOUSE OPP: SUN-N-STEP CLUB SOLA ROAD, THALTEJ AHMEDABAD 380 051. PAN : AFCPD 0018 C VS ITO, WARD-3 PATAN. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI T.P. HEMANI, AR REVENUE BY : SHRI PRASSON KABRA, SR.DR / DATE OF HEARING : 15/04/2018 /DATE OF PRONOUNCEMENT : 23/04/2018 O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF LD.CIT(A), GANDHINAGAR, AHMEDABAD DATED 18.11.2016 PASSED FOR THE ASSTT.YEAR 2008-09. 2. GROUNDS OF APPEAL TAKEN BY THE ASSESSEE ARE NOT IN CONSONANCE WITH THE RULE 8 OF THE INCOME TAX (APPELLATE TRIBUNAL) R ULES, 1963 - THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NATURE. 3. IN GROUND NOS.1 AND 2, THE ASSESSEE HAS PLEADED THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING ASSESSMENT ORDER PASSED UNDER S ECTION 144 R.W.S. 147 OF THE INCOME TAX. THE ASSESSMENT ORDER IS NOT SUSTAINABL E IN THE EYES OF LAW, BECAUSE NOTICE UNDER SECTION 148 WAS NEVER SERVED U PON LEGAL HEIRS OF ITA NO.90/AHD/201 7 - 2 - MAGANBHAI NAGJIBHAI DESAI. IT WAS IN THE NAME OF T HE DECEASED PERSON AND THE ASSESSMENT ORDER WAS ALSO PASSED IN THE NAME OF THE DECEASED PERSON. THUS, ACCORDING TO THE ASSESSEE, THE ASSESSMENT ORDER IS NOT SUSTAINABLE IN THE EYES OF LAW. 4. BRIEF FACTS OF THE CASE ARE THAT THE AO HAS GOT INFORMATION THAT THE ASSESSEE HAS DEPOSITED A SUM OF RS.10.45 LAKHS IN C ASH IN SAVING BANK ACCOUNT DURING THE FINANCIAL YEAR 2007-08. THE AO WROTE A LETTER DATED 13.3.2015 TO THE ASSESSEE REQUESTING HIM TO EXPLAIN SOURCE OF CASH D EPOSITS IN THE BANK ACCOUNT. ACCORDING TO THE AO, THIS LETTER WAS NOT REPLIED WI TH, HENCE ASSESSMENT WAS REOPENED AND NOTICE UNDER SECTION 148 DATED 25.3.20 15 WAS ISSUED, WHICH ACCORDING TO THE AO WAS SERVED ON THE ASSESSEE ON 2 6.3.2015. THEREAFTER, THE LD.AO HAS ISSUED NOTICES UNDER SECTION 142(1) ON 18 .5.2015, 4.6.2015, 8.7.2015 AND 17.8.2015. HE PASSED EXPARTE ASSESSMENT ACCORDING TO HIS BEST JUDGMENT UNDER SECTION 144 R.W.S. 147. HE RECORDED A FINDIN G THAT A SUM OF RS.31.18 LAKHS WERE DEPOSITED IN THE DENA BANK ON VARIOUS DA TES. HE MADE ADDITION OF RS.31.18 LAKHS WITH AID OF SECTION 68 ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN THE HANDS OF SHRI MAGANBHAI NAGJIBHAI DESAI. APPEA L TO THE LD.CIT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. THE CASE OF THE ASSESSEE IS THAT SHRI MAGANBHAI NAGJIBHAI DESAI WAS PASSED AWAY ON 26.12.2008. WHE N PROCESS-SERVER CAME TO THE ALLEGED RESIDENCE OF MAGANBHAI NAGJIBHAI DESAI, THEN THIS FACT WAS INFORMED TO THE PROCESS-SERVER THAT MAGANBHAI NAGJI BHAI DESAI HAS PASSED AWAY. THUS, THE AO HAS THE KNOWLEDGE OF DEATH OF S HRI MAGANBHAI NAGJIBHAI DESAI, AND INSPITE OF THAT HE DID NOT TRY TO LOCATE LEGAL HEIRS AND ISSUE NOTICE TO THE LEGAL HEIRS. THE LD.COUNSEL FOR THE ASSESSEE C ONTENDED THAT NOTICE UNDER SECTION 148 WAS SERVED UPON THE DECEASED PERSON. A SSESSMENT ORDER HAS BEEN PASSED ON THE DECEASED IS NOT SUSTAINABLE. IN SUPP ORT THAT CONTENTIONS, HE RELIED UPON THE FOLLOWING ORDERS OF THE ITAT: ITA NO.90/AHD/201 7 - 3 - I) HASHMUKH K. BAROT, IT(SS)A.NO.441/AHD/2011; II) ITO VS. SIKANDER LAL JAIN, 45 SOT 113 (AGRA)(TM); III) MRS.JERBANOO N. WADIA VS. ACIT, 36 ITD 185 (BOM) 5. ON THE OTHER HAND, THE LD.DR CONTENDED THAT RECE NTLY HONBLE DELHI HIGH COURT CONSIDERED THIS ISSUE IN THE CASE OF SKY LIGH T HOSPITALITY LLP VS. ACIT RENDERED IN WRIT PETITION NO.(C) 10870/2017. HONB LE DELHI HIGH COURT HAS HELD THAT SECTION 292B WOULD TAKE CARE OF SUCH TYPE OF LAPSE IN THE NOTICE. HENCE, ON THE BASIS OF NON-MENTIONING OF NAME OF L/ HRS. IN THE ASSESSMENT ORDER, IT WOULD NOT BE DECLARED AS VOID. HE FURTHE R CONTENDED THAT THIS DECISION OF THE HONBLE DELHI HIGH COURT HAS BEEN UPHELD BY THE HONBLE SUPREME COURT. SPECIAL LEAVE PETITION BEARING NO.7409/2018 HAS BEEN DISMISSED BY THE HONBLE SUPREME COURT ON 6.4.2018. HE PLACED ON RE CORD COPY OF BOTH DECISIONS. 6. I HAVE DULY CONSIDERED SUBMISSIONS OF BOTH PARTI ES AND GONE THROUGH THE RECORD. QUESTION BEFORE ME IS, WHETHER ASSESSMENT ORDER IS SUSTAINABLE EVEN IF IT WAS PASSED IN THE NAME OF A DECEASED PERSON. WH ILE CONSIDERING THIS ISSUE IN THE CASE OF HASMUKHBHAI K. BAROT, A DETAILED EXAMIN ATION WAS MADE AND AFTER PUTTING RELIANCE UPON THE ORDER OF THIRD MEMBER IN THE CASE OF SHRI SIKANDAR LAL JAIN, DIVISION BENCH OF ITAT, AHMEDABAD HAS HEL D THAT THE ASSESSMENT ORDER IS NOT SUSTAINABLE BECAUSE NOTICE WAS ISSUED IN THE NAME OF DECEASED PERSON AS WELL AS ASSESSMENT HAS BEEN FRAMED IN THE NAME OF DECEASED PERSON. THIS ORDER OF THE DIVISION BENCH WAS ALSO AUTHORED BY ME. THE DISCUSSION MADE IN THAT ORDER READS AS UNDER: 7. WE HAVE CONSIDERED RIVAL CONTENTIONS AND GONE T HROUGH THE RECORD CAREFULLY. WE FIND THAT THE AO HAD ISSUED NOTICE UNDER SECTION 158BD ON 21.6.2004 UPON SHRI KANTILAL B. BAROT. COPY OF THE NOTICE IS AVAILABLE AT PAGE NO.25. HIS LEGAL HEIR, SHRI HASMUKHBHAI K. BAROT, HAS POINTED OUT TO THE AO VIDE LETTERS DATED 6.6.2004 AND 23.6. 2006 THAT SHRI KANTILAL B. BAROT WAS EXPIRED ON 27.12.2001. THUS, IT IS AN ESTABLISHED FACT THAT NOTICE UNDER SECTION 158BD WAS ISSUED UPON A DECEAS ED PERSON. THE ITA NO.90/AHD/201 7 - 4 - QUESTION BEFORE US, WHETHER THIS INHERENT DEFECT IN THE NOTICE CAN BE LEGALIZED WITH THE HELP OF SECTION 292BB. THE LEAR NED COUNSEL FOR THE ASSESSEE SUBMITTED THAT SECTION 292BB WAS CONSIDERE D BY THE SPECIAL BENCH OF THE ITAT IN THE CASE OF KUBER TOBACCO VS. DCIT, 117 ITD 273 WHEREIN IT HAS BEEN OBSERVED THAT THIS PROVISION IS PROSPECTIVE IN NATURE. IT WAS BROUGHT IN STATUTE W.E.F. 1.4.2008 AND HENCE , IT WAS NOT EFFECTIVE WHEN THE NOTICE UNDER SECTION 158BD WAS ISSUED. TH EREFORE, THE DEPARTMENT CANNOT GET ANY BENEFIT FROM THIS SECTION . APART FROM THIS, WE FIND THAT THIRD MEMBER OF THE ITAT IN THE CASE OF S IKANDAR LAL JAIN (SUPRA) HAS MADE LUCID ENUNCIATION THE LAW ON THIS ISSUE, AND HENCE, THE NOTICE ISSUED UPON A DECEASED PERSON WOULD NOT BE V ALID ONE FOR INITIATING THE PROCEEDINGS. THE DISCUSSION MADE IN THE ORDER IS WORTH TO NOTE, AS UNDER: 12. NOW COMING TO THE SECOND ISSUE WHETHER THE NOT ICE ISSUED IN THE NAME OF A DEAD PERSON IS A VALID NOTICE OR NOT. CAN THE PROCEEDINGS BE INITIATED AGAINST A DEAD PERSON ? TH E FACTS OF THE CASE CLEARLY SPEAK THAT THE NOTICE UNDER SECTION 14 8 WAS ISSUED IN THE NAME OF THE ASSESSEE WHO HAS ALREADY EXPIRED ON 17-11-2002. SHRI SIKANDAR LAL JAIN, THE ASSESSEE, HAS SUBMITTED THE RETURN UP TO THE ASSESSMENT YEAR 2002-03. HIS RETURN FOR ASSESSM ENT YEAR 2003- 04 WAS FILED ON 26-3-2004 BY HIS WIFE SMT. UMA RANI JAIN AS HIS LEGAL HEIR. THE SAID RETURN WAS PROCESSED BY THE AS SESSING OFFICER ON 2-7-2004 AND REFUND WAS GRANTED IN THE NAME OF S MT. UMA RANI JAIN AS LEGAL HEIR OF THE ASSESSEE. THUS, THE FACT REGARDING THE DEATH OF THE ASSESSEE WAS VERY MUCH IN THE RECORD O F THE ASSESSING OFFICER. UNDER THESE FACTS, THE ASSESSING OFFICER I NITIATED THE PROCEEDINGS IN THE NAME OF SHRI SIKANDAR LAL JAIN B Y RECORDING THE REASONS AS WELL AS ISSUING OF THE NOTICE UNDER SECT ION 148 DATED 21- 3-2005. FOR A VALID INITIATION OF THE PROCEEDINGS U NDER SECTION 147, IN MY OPINION, ISSUANCE OF A VALID NOTICE WITHIN TH E LIMITATION PERIOD AS WELL AS RECORDING OF THE REASONS IS ESSEN TIAL. THE SERVICE OF THE NOTICE ON THE ASSESSEE IS ALSO NECESSARY. A READING OF SECTIONS 147, 148 AND 149 MAKES IT CLEAR THAT THE N OTICE HAS TO BE ISSUED TO THE ASSESSEE. ISSUANCE OF THE NOTICE TO T HE ASSESSEE, AS I HAVE ALREADY HELD, IS ESSENTIAL FOR VALID PROCEEDIN GS. THE ASSESSEE IS DEFINED UNDER SECTION 2, SUB-SECTION (7) WHICH L AYS DOWN AS UNDER : '(7) 'ASSESSEE' MEANS A PERSON BY WHOM ANY TAX OR A NY OTHER SUM OF MONEY IS PAYABLE UNDER THIS ACT, AND INCLUDES (A )EVERY PERSON IN RESPECT OF WHOM ANY PROCEEDING UNDER THIS ACT HAS BEEN TAKEN FOR THE ASSESSMENT OF HIS INCOME OR ITA NO.90/AHD/201 7 - 5 - ASSESSMENT OF FRINGE BENEFITS OR OF THE INCOME OF A NY 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 UN DER ANY PROVISION OF THIS ACT; (C )EVERY PERSON WHO IS DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER ANY PROVISION OF THIS ACT;' FROM THE READING OF THIS SECTION, IT IS APPARENT TH AT ASSESSEE MEANS A PERSON BY WHOM ANY TAX OR ANY SUM OF MONEY IS PAYABLE UNDER THIS ACT AND ALSO INCLUDES EVEN EVERY PERSON WHO IS DEEMED TO BE AN ASSESSEE UNDER ANY PROVISION OF THE INCOME -TAX ACT. THE PERSON IS DEFINED UNDER SECTION 2, SUB-SECTION (31) WHICH INCLUDES AN INDIVIDUAL. INDIVIDUAL MEANS A SINGLE HUMAN BE ING DISTINCT FROM A GROUP OF HUMAN BEINGS. NOW, THE QUESTION ARI SES WHETHER THE PERSON WHO HAS ALREADY EXPIRED, CAN BE REGARDED TO BE A HUMAN BEING SO AS TO FALL WITHIN THE DEFINITION OF INDIVIDUAL. NOTICE IN THIS CASE IS NOT ISSUED IN THE NAME OF TH E LEGAL REPRESENTATIVES OF THE ASSESSEE BUT ISSUED IN THE N AME OF AN INDIVIDUAL WHO HAS ALREADY EXPIRED ON 17-11-2002. T HEREFORE, IT CANNOT BE SAID THAT THERE WAS AN INDIVIDUAL IN EXIS TENCE IN THE NAME OF SHRI SIKANDAR LAL JAIN IN WHOSE NAME NOTICE IS ISSUED AS ON THE DATE WHEN THE PROCEEDINGS UNDER SECTION 147 WAS INITIATED OR THE NOTICE UNDER SECTION 148 WAS ISSUED. UNDER T HE 1922 ACT, THE WORD 'INDIVIDUAL' DID NOT NECESSARILY REFER TO A NATURAL HUMAN BEING BUT ALSO INCLUDED A JURISTIC PERSON LIKE A HI NDU IDOL, BUT UNDER THE 1961 ACT DEFINITION, THERE IS A SEPARATE APPROPRIATE SPECIFICATION 'EVERY ARTIFICIAL JURIDICAL PERSON... ..'. SIMILAR VIEW HAS BEEN TAKEN BY THE HONBLE ANDHRA PRADESH HIGH C OURT IN THE CASE OF DECCAN WINE & GENERAL STORES V. CIT [1977] 106 ITR 111, IN WHICH IT WAS CATEGORICALLY HELD THAT AN INDIVIDU AL UNDER THE INCOME-TAX ACT, 1961 MEANS ONLY A HUMAN BEING. THE ISSUANCE OF A VALID NOTICE IS A FOUNDATION FOR THE VALIDITY OF TH E RE-ASSESSMENT. THERE IS A CLEAR CUT DISTINCTION BETWEEN THE PRECED ENT AND PROCEDURE. THE DEFECT IN THE PROCEDURE WILL NOT NOR MALLY AMOUNT TO LACK OF JURISDICTION. THE NOTICE PRESCRIBED UNDER S ECTION 148 FOR THE PURPOSE OF INITIATION OF REASSESSMENT PROCEEDIN GS IS NOT A MERE PROCEDURAL REQUIREMENT, BUT IS A CONDITION PRECEDEN T TO THE VALIDITY OF REASSESSMENT. IF NO NOTICE IS ISSUED OR IF THE N OTICE ISSUES IS SHOWN TO BE INVALID, THE PROCEED- INGS INITIATED BY THE ASSESSING OFFICER WOULD BE INVALID AND VOID. THE ASSESSMENT F RAMED ON THE BASIS OF SUCH INVALID PROCEEDINGS WILL BE INVALID. A NOTICE ISSUED TO ITA NO.90/AHD/201 7 - 6 - A DEAD PERSON, IN MY OPINION, CANNOT BE REGARDED TO BE A NOTICE ISSUED TO AN INDIVIDUAL AS HE CANNOT BE A PERSON TO BE AN ASSESSEE. IN CONSEQUENCE THEREOF, IT CANNOT BE REGARDED TO HA VE BEEN ISSUED TO AN ASSESSEE. NO DOUBT, UNDER SECTION 2, SUB-SECT ION (7) OF THE INCOME-TAX ACT, HIS LEGAL REPRESENTATIVES BEING DIF FERENT HUMAN BEINGS FROM SHRI SIKANDAR LAL JAIN, ARE DEEMED TO B E THE ASSESSEE IN VIEW OF THE PROVISIONS OF SECTION 159 OF THE INC OME-TAX ACT. SECTION 159(1) STRESSED THAT WHERE A PERSON DIES, H IS LEGAL REPRESENTATIVES SHALL BE LIABLE TO PAY ANY SUM WHIC H THE DECEASED WOULD HAVE BEEN LIABLE TO PAY IF HE HAD NOT DIED, I N THE LIKE MANNER AND TO THE SAME EXTENT AS THE DECEASED. SIMILARLY, SECTION 159(2) ALSO EMPOWERS THE ASSESSING OFFICER TO TAKE THE PRO CEEDINGS AGAINST THE LEGAL REPRESENTATIVES WHICH HE SHOULD H AVE TAKEN AGAINST THE DECEASED IF HE HAD SURVIVED. SECTION 15 9(2) NOWHERE AUTHORIZES THE ASSESSING OFFICER TO TAKE THE PROCEE DINGS AGAINST THE INDIVIDUAL WHO HAS ALREADY EXPIRED, THAT IS WHY THE LEGAL REPRESENTATIVE UNDER SECTION 2(7) ARE REGARDED TO B E ASSESSEE. IT EMANATES THAT THE ASSESSEE IN THE CASE OF A DECEASE D PERSON WILL BE THE PERSON WHO ARE REGARDED TO BE THE LEGAL HEIRS O F THE DECEASED AS THEY CAN BE REGARDED TO BE THE HUMAN BEING. THE NOTICE UNDER SECTION 148 HAS TO BE ISSUED ON THE ASSESSEE,I.E.,I NDIVIDUAL (HUMAN BEING). A PERSON WHO HAS ALREADY EXPIRED CANNOT BE REGARDED TO BE A HUMAN BEING AS ON THE DATE WHEN THE NOTICE WAS IS SUED IN THIS CASE. ONLY LEGAL HEIR CAN BE REGARDED TO BE THE IND IVIDUAL. IN VIEW OF THE CLEAR MANDATES OF THE PROVISIONS OF SECTION 2(7) AND SUB- SECTIONS (1), (2) AND (3) OF SECTION 159, I AM OF T HE OPINION THAT THE NOTICE ISSUED IN THE NAME OF A DEAD PERSON IS NOT A VALID NOTICE. IN THE ABSENCE OF ISSUANCE OF A VALID NOTICE, THE PROC EEDINGS INITIATED UNDER SECTION 147 CANNOT BE SAID TO BE VALID ONE. S INCE BOTH THE PARTIES HAVE ARGUED THIS ISSUE EXTENSIVELY RELYING ON A NUMBER OF CASE LAWS CLAIMED TO BE IN THEIR FAVOUR, I AM BOUND TO DISCUSS ALL THESE CASE LAWS BEFORE GIVING ANY FINAL VERDICT AND ACCORDINGLY THESE CASES ARE DISCUSSED IN THE FOLLOWING PARAGRAP HS AS UNDER: .. 8. DURING THE COURSE OF HEARING, SECTION 159 OF THE INCOME TAX ACT, WAS ALSO BROUGHT TO OUR NOTICE. THIS SECTION PROVI DES A MECHANISM FOR PUTTING TAX LIABILITY UPON THE LEGAL REPRESENTATIVE , WHO INHERITED THE PROPERTY OF THE DECEASED. 9. THIS ASPECT HAS ALSO BEEN CONSIDERED BY THE TRIB UNAL IN THE CASE OF SIKANDAR LAL JAIN EXTRACTED (SUPRA). THIRD MEMBER HAS HELD THAT SECTION ITA NO.90/AHD/201 7 - 7 - 159(2) NOWHERE AUTHORIZE THE AO TO TAKE PROCEEDING AGAINST THE INDIVIDUAL WHO HAS ALREADY EXPIRED, THAT IS WHY THE LEGAL REPRESENTATIVE UNDER SECTION 2(7) ARE REGARDED TO BE ASSESSEE. TH IS ASPECT CAN ALSO APPRECIATED BY AN EXAMPLE, VIZ. AN ASSESSEE DIED LE AVING BEHIND FOUR LEGAL REPRESENTATIVES. THE AO ISSUED NOTICE ON THE DECEASED. ONE OF THE LEGAL REPRESENTATIVES PARTICIPATED IN THE PROCEEDIN GS AND THE AO PASSED ASSESSMENT ORDER. ALL THE FOUR LEGAL REPRESENTATIV ES HAD INHERITED PROPERTY OF THE DECEASED. CAN TAX LIABILITY IMPOSE D UPON THE DECEASED ASSESSEE WILL BE RECOVERED FROM THE REST OF THE LEG AL REPRESENTATIVES, WHO INHERITED THE PROPERTY, BUT DID NOT PARTICIPATE IN THE PROCEEDING, BECAUSE THEY HAD NOT RECEIVED ANY NOTICE ? SECTION 292BB W ILL NOT HELP THE AO IN THIS SITUATION. THEREFORE, CONSIDERING FROM ALL AN GLES, WE FIND THAT NOTICE ISSUED BY THE AO UPON THE DECEASED IS DEFECTIVE NOT ICE AND NO VALID ASSESSMENT ORDER COULD BE PASSED. RESPECTFULLY FOLL OWING THE ORDER OF THE ITAT IN THE CASE OF SIKANDARLAL JAIN (SUPRA), WE AL LOW THE FIRST GROUND OF APPEAL AND QUASH THE ASSESSMENT ORDER. 7. LET ME CONSIDER JUDGMENT RELIED UPON BY THE LD.D R IN THE CASE OF SKY LIGHT HOSPITALITY LLP (SUPRA). IT FILED RETURN FOR THE ASSESSMENT YEAR 2010-11. IT WAS CONVERTED INTO LIMITED LIABILITY PARTNERSHIP ON 13.5.2016 UNDER LIMITED LIABILITY PARTNERSHIP ACT, 2008. A TAX EVASION PET ITION WAS RECEIVED BY THE DEPARTMENT AND REPORT WAS PREPARED. ON THE BASIS O F THAT REPORT, NOTICE WAS ISSUED IN THE NAME OF M/S.SKY LIGHT HOSPITALITY PVT .LTD. QUESTION AROSE BEFORE THE HONBLE DELHI HIGH COURT WHETHER ALLEGED DEFECT IN THE NOTICE OF NON- MENTIONING NAME OF SKY LIGHT HOSPITALITY LLP IS FAT AL FOR THE ASSESSMENT PROCEEDINGS OR NOT. HONBLE HIGH COURT AFTER REFER RING A LARGE NUMBER OF DECISIONS ARRIVED AT A CONCLUSION THAT IN FACT NOTI CE WAS MEANT FOR SKY LIGHT HOSPITALITY LLP. ALL FACTS WERE NARRATED RELATING TO THIS CONCERN IN THE REASONS RECORDED FOR REOPENING OF THE ASSESSMENT. THERE WA S MERELY AN OMISSION OR DEFECT IN THE NOTICE BY NOT MAKING MENTION OF NAME. THUS, HONBLE HIGH COURT HAS HELD THAT SECTION 292B WOULD TAKE CARE OF THIS ASPECT. THE HONBLE HIGH COURT HAS DISMISSED WRIT PETITION AND UPHELD ISSUAN CE OF NOTICE AS WELL AS REOPENING OF THE ASSESSMENT. SLP OF THIS JUDGMENT WAS DISMISSED BY THE HONBLE SUPREME COURT. HONBLE HIGH COURT HAS CONS IDERED JUDGMENT REFERRED TO IT WITH REGARD TO IMPACT OF PASSING ASSESSMENT I N THE NAME OF DECEASED ITA NO.90/AHD/201 7 - 8 - PERSON. HONBLE HIGH COURT CONCURRED WITH THESE DEC ISIONS AND HELD THAT IF ASSESSMENT ORDER WAS PASSED IN THE NAME OF NON-EXIS TING PERSON, THEN IT WILL BE ILLEGAL. IT IS IMPERATIVE UPON ME TO TAKE NOTE OF DISCUSSION MADE BY THE HONBLE HIGH COURT: 17. IN THE CONTEXT OF THE PRESENT WRIT PETITION, T HE AFORESAID RATIO IS A COMPLETE ANSWER TO THE CONTENTION RAISED ON VALIDIT Y OF THE NOTICE UNDER SECTION 147/148 OF THE ACT AS IT WAS ADDRESSED TO T HE ERSTWHILE COMPANY AND NOT TO THE LIMITED LIABILITY PARTNERSHIP. THERE WAS NO DOUBT AND DEBATE THAT THE NOTICE WAS MEANT FOR THE PETITIONER AND NO ONE ELSE. LEGAL ERROR AND MISTAKE WAS MADE IN ADDRESSING THE NOTICE . NOTICEABLY, THE APPELLANT HAVING RECEIVED THE SAID NOTICE, HAD FILE D WITHOUT PREJUDICE REPLY/LETTER DATED 11.04.2017. THEY HAD OBJECTED TO THE NOTICE BEING ISSUED IN THE NAME OF THE COMPANY, WHICH HAD CEASED TO EXIST. HOWEVER, THE READING OF THE SAID LETTER INDICATES THAT THEY HAD UNDERSTOOD AND WERE AWARE, THAT THE NOTICE WAS FOR THEM. IT WAS REPLIED AND DEALT WITH BY THEM. THE FACT THAT NOTICE WAS ADDRESSED TO M/S SKY LIGHT HOSPITALITY PVT. LTD., A COMPANY WHICH HAD BEEN DISSOLVED, WAS AN ER ROR AND TECHNICAL LAPSE ON THE PART OF THE RESPONDENT. NO PREJUDICE W AS CAUSED. 18. PETITIONER RELIES ON SPICE INFOTAINMENT LTD. VS . COMMISSIONER OF SERVICE TAX, (2012) 247 CTR 500. SPICE CORP. LTD., THE COMPANY THAT HAD FILED THE RETURN, HAD AMALGAMATED WITH ANOTHER COMPANY. AFTER NOTICE UNDER SECTION 147/148 OF THE ACT WAS ISSUED AND RECEIVED IN THE NAME OF SPICE CORP. LTD., THE ASSESSING OFFICER WAS INFORMED ABOUT AMALGAMATION BUT THE ASSESSMENT ORDER WAS PASSED IN THE NAME OF THE AMALGAMATED COMPANY AND NOT IN THE NAME OF AMALGAMA TING COMPANY. IN THE SAID SITUATION, THE AMALGAMATING COMPANY HAD FILED AN APPEAL AND ISSUE OF VALIDITY OF ASSESSMENT ORDER WAS RAISED AN D EXAMINED. IT WAS HELD THAT THE ASSESSMENT ORDER WAS INVALID. THIS WA S NOT A CASE WHEREIN NOTICE UNDER SECTION 147/148 OF THE ACT WAS DECLARE D TO BE VOID AND INVALID BUT A CASE IN WHICH ASSESSMENT ORDER WAS PA SSED IN THE NAME OF AND AGAINST A JURISTIC PERSON WHICH HAD CEASED TO E XIST AND STOOD DISSOLVED AS PER PROVISIONS OF THE COMPANIES ACT. O RDER WAS IN THE NAME OF NON-EXISTING PERSON AND HENCE VOID AND ILLEGAL. 19. SPICE INFOTAINMENT LTD.(SUPRA) REFERS TO DECISI ON OF ALLAHABAD HIGH COURT IN SRI NATH SURESH CHAND RAM NARESH V. CIT, ( 2006) 280 ITR 396 (ALL). WE HAVE EXAMINED THE DECISION IN SRI NATH SU RESH CHAND RAM NARESH (SUPRA) AND WOULD OBSERVE THAT FACTS WERE PE CULIAR. THERE WAS ORAL PARTITION OF THE HINDU UNDIVIDED FAMILY, M/S M UNNA LAL MOTI LAL, ON ITA NO.90/AHD/201 7 - 9 - DEATH OF THE KARTA, MOTI LAL. CAPITAL WAS DIVIDED AMONGST THREE BROTHERS, WHO WERE THE COPARCENERS. CONTROVERSY WAS REGARDING LEGALITY OF ORAL PARTITION THAT WAS NOT RECOGNIZED BY THE RE VENUE. RE-ASSESSMENT NOTICES WERE ISSUED, IN THE NAME OF M/S SRI NATH SU RESH CHAND RAM NARESH, KARTA SHRI NATH. NIL RETURN WAS FILED ALO NG WITH LETTER STATING THAT NO BUSINESS WAS CONDUCTED IN THE NAME OF THE A SSESSEE AND NOTICES WERE WRONGLY ISSUED. REVENUE HAD ASSERTED THAT THIS NOTICE WAS MEANT TO ASSESS M/S MUNNA LAL MOTI LAL THOUGH THE NOTICE WAS TO ANOTHER ASSESSEE, WHO WAS ALSO EXISTING IN LAW. RECORDING T HIS FACTUAL MATRIX, THE NOTICE UNDER SECTION 148 AND ASSESSMENTS MADE WERE HELD TO BE INVALID. 20. COMMISSIONER OF INCOME TAX V. DIMENSION APPAREL S PRIVATE LIMITED, (2015) 370 ITR 288 (DEL) AND COMMISSIONER OF INCOME TAX V. INTEL TECHNOLOGY INDIA (P.) LTD., (2016) 380 ITR 272 (KAR ) FOLLOW THE RATIO AND DECISION IN THE CASE OF SPICE INFOTAINMENT LTD. (SUPRA), AS ASSESSMENT ORDERS HAD BEEN PASSED IN THE NAME OF THE NON-EXIST ING ASSESSEE. THESE CASES ARE THEREFORE DISTINGUISHABLE. 21. OUR ATTENTION WAS DRAWN TO PARASHURAM POTTERY W ORKS CO. LTD. V. ITO, CIRCLE I, WARD A, RAJKOT, (1977) 106 ITR 1 (SC ) WHICH RECORDS THAT THE ASSESSING OFFICER ENTRUSTED WITH THE TASK OF CA LCULATING AND REALISING TAX SHOULD FAMILIARISE THEMSELVES WITH THE RELEVANT PROVISIONS AND BECOME WELL VERSED WITH THE LAW ON THE SUBJECT. THI S IS A SALUTARY ADVISE. INDEED THERE HAVE BEEN LAPSES AND FAULTS RESULTING IN THE PRESENT LITIGATION. NOTICE UNDER SECTION 147/148 OF THE ACT WAS ISSUED AT THE END OF THE LIMITATION PERIOD. NOTICEABLY, ASSESSMENT OR DER FOR THE ASSESSMENT YEAR 2013-2014 WAS PASSED ON 31.03.2016, ONE YEAR E ARLIER. SECOND LAPSE IS ALSO APPARENT. DESPITE CORRECTLY NOTING TH E BACKGROUND, NOTICE UNDER SECTION 147/148 OF THE ACT WAS NOT ADDRESSED IN THE CORRECT NAME AND EVEN THE PAN NUMBER MENTIONED WAS INCORRECT. NE VERTHELESS, HUMAN ERRORS AND MISTAKES CANNOT AND SHOULD NOT NUL LIFY PROCEEDINGS WHICH ARE OTHERWISE VALID AND NO PREJUDICE HAD BEEN CAUSED. THIS IS THE EFFECT AND MANDATE OF SECTION 292B OF THE ACT. 8. A PERUSAL OF PARAGRAPH-17, 18, 19 OF THE ABOVE J UDGMENT WOULD INDICATE THAT THEY ARE IN FAVOUR OF THE ASSESSEE IN THE CASE BEFORE ME. THE ASSESSEE IS NOT HARPING UPON ANY IRREGULARITY IN THE NOTICE, RATHER HE IS CHALLENGING THE VERY JURISDICTION OVER THE ASSESSEE, ON ACCOUNT OF ISSU ANCE OF NOTICE IN THE NAME OF A DECEASED PERSON, AND FURTHER, EVEN AFTER COMING TO KNOW ABOUT STATUS OF THE ASSESSEE AS A DECEASED, PASSING OF AN ASSESSMENT OR DER IN THE NAME OF DECEASED ITA NO.90/AHD/201 7 - 10 - PERSON WOULD NOT BE SUSTAINABLE. THEREFORE, I ALLO W THIS GROUND OF APPEAL AND QUASH THE ASSESSMENT ORDER. CONSEQUENTLY, I DO NO T DEEM IT NECESSARY TO ADJUDICATE OTHER ISSUES ON MERIT. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . PRONOUNCED IN THE OPEN COURT ON 23 RD APRIL, 2018. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED, 23/04/2018