Court Rules Notices Issued to Deceased Taxpayers Are Invalid and Unenforceable

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Case Name:

Late Bhupendra Bhikhalal Desai (Since Deceased) Through Legal Heir Raju Bhupendra Desai vs. Income Tax Officer & Anr. (High Court of Gujarat)

R/Special Civil Application No. 22441, 22444, 22474, 22475, 22476, 22477 & 22478 of 2019

Date: 8th March 2021

Key Takeaways

• Notices issued under Section 148 or Section 153C of the Income Tax Act to a deceased person are invalid.
• The court emphasized that tax laws cannot apply to individuals who are no longer living.
• Legal heirs must be properly notified for any tax proceedings to be valid.
• The ruling reinforces the principle that tax obligations cannot be enforced against the deceased.

Issue

Is a notice issued under tax laws to a deceased person enforceable in law?

Facts

• Bhupendra Bhikhalal Desai passed away on April 23, 2017.
• Notices under Section 153C of the Income Tax Act were issued in his name after his death.
• The legal heir, Raju Bhupendra Desai, informed the tax department of the death and requested the proceedings be dropped.
• The tax department continued to assert the validity of the notices, claiming they were unaware of the death.

Arguments

• For the Legal Heir (Raju Bhupendra Desai): The notices issued to his deceased father are invalid and unenforceable. The legal heir argued that the tax department should have issued notices to him instead of the deceased.
• For the Revenue (Income Tax Officer): The department contended that the notices were valid as they were unaware of the death. They argued that the legal heir’s participation in the proceedings could cure any defects in the notice.

Key Legal Precedents

• The court referenced the case of Alamelu Veerappan vs. Income Tax Officer, which established that notices issued in the name of a deceased person are unenforceable.
• The court also cited Rasid Lala v. Income Tax Officer, which reinforced that tax proceedings cannot continue against a deceased individual without proper notice to their legal representatives.

Judgement

The court ruled in favor of Raju Bhupendra Desai, stating that the notices issued to the deceased were invalid and unenforceable. The court emphasized that tax laws cannot apply to deceased individuals and that the tax department failed to issue valid notices to the legal heir within the prescribed time. Consequently, the court quashed the impugned notices and ordered that the proceedings be dropped.

FAQs

Q1: What does this ruling mean for legal heirs of deceased taxpayers?

A: Legal heirs must be properly notified for any tax proceedings to be valid. Notices issued to deceased individuals are unenforceable.

Q2: Can the tax department continue proceedings against a deceased person’s estate?

A: No, the tax department must issue valid notices to the legal heirs, and proceedings cannot continue against the deceased.

Q3: What happens if the tax department was unaware of the taxpayer’s death?

A: Ignorance of the taxpayer’s death does not validate notices issued to the deceased. The department is required to follow proper procedures.

Q4: Are there any exceptions to this ruling?

A: The ruling is clear that notices to deceased individuals are invalid, and any exceptions would need to be explicitly stated in law or subsequent rulings.

“Nothing is certain except death and taxes.” Thus spake Benjamin Franklin in his letter of 13.11.1789 to Jean Baptiste Leroy. To tax the dead is a contradiction in terms. Tax laws are made by the living to tax the living. What survives the dead person is what is left behind in the form of such person's property. [see Shabina Abraham and others vs. Collector of Central Excise and Customs, (2015) 10 SCC 770]

1. We are tempted to preface our judgment with the afore-noted observations of the Supreme Court as in the case on hand also the Revenue wants to proceed against the legal heir of the deceased by issuing a notice under Section 153C of the Income Tax Act, 1961 (for short, 'the Act 1961'). Such notice is issued to a dead person.

2. Since the issues raised in all the captioned writ-applications are the same and the assessee is also the same, those were taken up for hearing analogously and are being disposed of by this common judgment and order.

3. For the sake of convenience, the Special Civil Application No.22441 of 2019 is treated as the lead matter.

4. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs :

“(A) Issue a writ of certiorari and/or a writ of mandamus and/or any other writ, direction or order to quash and set aside the impugned notice dated 29.03.2019 under Section 153C annexed at Annexure-A and with preliminary order dated 16.10.2019 annexed hereto at Annexure-C for proceeding and completing re-assessment proceedings.

(B) Pending admission, hearing and disposal of this petition, ad-interim relief be granted and the respondent be ordered to restrain from enforcing compliance of the impugned notice dated 29.03.2019 under Section 153C annexed at Annexure-A and/or taking any steps in this regard including ex-parte order or implementation of preliminary order dated 16.10.2019 annexed at Annexure-C.

(C) Award the cost of this petition.

(D) Grant such other and further reliefs as this Hon'ble Court deems fit.”

5. For the relevant Assessment Year, the return of income was filed by the writ-applicant on 6th January 2012 under Section 139 of the Act 1961. The writ-applicant (original assessee) passed away on 23rd April 2017. It is pertinent to note that for the Assessment Year 2017-18, the return was filed

under Section 139 of the Act 1961 on 31st March 2018. The verification in the ITR-V is by Sushilaben Desai, the wife of deceased Bhupendrabhai Desai. The permanent account number stated in the verification is also that of the deceased Bhupendrabhai Desai. Same is the case for the Assessment Year

2018-19, wherein the return was filed on 31st August 2018 and for the Assessment Year 2019-20, the return was filed on 9th September 2019.

6. A notice under Section 153C of the Act 1961, dated 29th March 2019 came to be issued in the name of Bhupendrabhai Bhikhalal Desai. After a period of seven months from the date of the notice under Section 153C of the Act 1961, the son of the deceased, namely, Rajubhai Bhupendrabhai Desai, gave a reply

dated 9th October 2019, informing the department for the first time that his father passed away way back on 23rd April 2017 and that the notice was issued to a dead person and, therefore, the proceedings be dropped.

7. The department, vide reply dated 16th October 2019, communicated the following to the legal heir of late Bhupendrabhai Bhikhalal Desai as under :

“To,

Late Bhupendra Babubhai Desai

C/o Legal Heir Raju B.Desai/Sushilaben Desai

Prop. Times Pharma

18, Bhimnath Society

Shahibaug, Ahmedabad 380004.

Sub : Rejection of objection raised vide letter dtd.

09.10.2019 with regard to the proceedings u/s. 153C

of the Income-tax Act, 1961 for AY 2011-12 to 2017-

18.

Please refer to the above.

2. In connection to the above it is conveyed that the

objection raised by you that the notice u/s. 153C was

served to the deceased person is not valid and is liable to be

set aside, is not acceptable with regard tot he following

reasons :

a. The objection has to be raised within the 30 days from

the date of receipt of the notice under question as per section

124(3)(c) of the I.T. Act, 1961 i.e. notice was issued and

served electronically on 29.03.2019 and the same was sent

by post on 29.03.2019 as well and accordingly, the due

date for filing objection was 28.04.2019.

b. The department had not been informed of the demise

of your father. (if so, please provide the copy of the same).

c. No any legal heir have been registered yet with this

PAN hold by your late father.

d. No application for PAN surrender have been submitted

to the department.

e. Your father expired on 23.04.2017. However, as per

income-tax records ITRs for A.Y. 2017-18, 2018-19 and

2019-20 were filed and the declared income as well viz :

A.Y. Date of filing ITS Gross Total Income Disclosed

2017-18 31.03.2018 8,48,725/-

2018-19 31.08.2018 5,18,748/-

2019-20 09.09.2019 4,14,956/-

The above returns were filed with the Name : BHUPENDRA

BHIKHALAL DESAI. There was no any sign of late

Bhupendra Bhikhalal Desai nor any name of the legal heir

was mentioned. (Copy enclosed). Further it is also observed

that you have claimed for deduction under chapter VIA for

A.Y. 2018-19 of Rs.2,002/- and Rs.50,000/- for A.Y. 2019-

20 (80TTB – Interest on deposits in case of Resident senior

citizen. 50000).

3. In view of the above, the objection raised by you is

hereby rejected for the above mentioned A.Ys. Further, it is

requested to comply with the notices issued on 16.10.2019

by the office of the undersigned.”

8. Thereafter, on 16th December 2017, a show-cause notice

was issued for the proposed addition and also for the order to be

passed under Section 144 of the Act for the Assessment Year

2011-12. The notice reads thus :

PAN : ACUPD6710G Dated : 06/12/2019

Letter No : ITBA/AST/F/17/2019-20/ 1021811599(1) Sir/Madam/M/s,

Subject : Show cause for proposed addition and for the

order to be passed u/s. 144 of the Act for A.Y.

2011-12 reg.

PAN : ACUPD6710G

Please refer to the above.

2. Your case was selected for the scrutiny by issuing

notice u/s.153C vide notice dtd. 19.03.2019 asking you to

furnish return of income. Further notice dtd. 16.10.2019

was issued asking to submit certain details. However, both

of these notices were not complied with. Considering your

non-compliance nature you are show cause why ex-parte

order u/s. 144 of the I.T. Act, 1961 should not be made

based on the material available on records.

3. On perusal of your ROI it is observed that you have

claimed TDS credit of Rs.2,41,735/- and offered income

from business and profession at Rs.3,10,169/-. However,

as per your 26AS you have received receipts of

Rs.59,62,362/- during the year under consideration.

Therefore, you are to show cause why amount of

Rs.59,62,362/- (as per 26AS) should not be considered your

income and difference of Rs.56,52,193/- (inclusive of the

amount of undisclosed TDS of Rs.2,41,735/-) be added to

your income.

4. As per the data available with this office, coupled with

the response received against the notice u/s. 133(6) issued

to Nutan Nagrik Sahakari Bank and Bank of India, it is

noticed that you had made term deposit of Rs.31,70,781/-

and earned interest of Rs.919/- in the Nutan Nagrik

Sahakari Bank, Gheekantha Branch, Ahmedabad during

the year under consideration. Further, in Bank of India,

Ahmedabad Main Branch, Bhadra, you had Rs.24,48,959/-

as your credit entries during the entire period i.e. FY 2010-

11. All these term deposit and other credit transactions are

still unexplained from your side. Accordingly, you are to

show cause why the said amounts should not be added to

your total income as per law by passing an ex-parte order.

5. Your submission shall be corroborated with the

complete set evidences and this notice shall be considered

your last opportunity. Please submit the details/explanation

along with the complete set of evidence on or before

11/12/2019 at 01:00 P.M. Please note that failing to

furnish/submit the details or explanation case will be

decided as per materials available on record and the said

amount will be added to the total income.”

9. In such circumstances referred to above, the writ-applicant

is here before this Court with the present writ-application.

10. Mr.Darshan Patel, the learned counsel appearing for the

writ-applicant would submit that Shri Bhupendrabhai Desai

having passed away way back on 28th April 2017, a notice under

Section 153C of the Act could not have been issued in the year

2019 for the Assessment Year 2011-12 against a dead person.

Mr.Patel would submit that the notice served for the purpose of

re-assessment to a dead person is an invalid notice and the

proceedings pursuant thereto would be void-ab-initio. In such

circumstances referred to above, Mr.Patel prays that there being

merit in his writ-application, the same be allowed and the

impugned notice dated 29th March 2019 as well as the

preliminary order (Annexure-C) dated 16th October 2019 be

quashed and set-aside.

11. On the other hand, this writ-application has been

vehemently opposed by Mr.M.R.Bhatt, the learned senior

counsel appearing for the Revenue. Mr.Bhatt would submit that

it is no longer res integra that 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. However, according to

Mr.Bhatt, such proposition of law as applicable to a notice under

Section 148 of the Act will not apply to a case where the

impugned notice is under Section 153C of the Act. According to

Mr.Bhatt, the legal heir of late Bhupendrabhai Desai was obliged

in law to inform about the death of his father to the department

at the earliest. Mr.Bhatt would submit that it is very strange that

three income tax returns, thereafter, came to be filed in the

name of deceased Bhupendrabhai Desai, wherein the verification

in the ITR form is at the instance of Sushilaben, wife of the

deceased, and that too, quoting the PAN number of the deceased

Bhupendrabhai Desai.

12. In the aforesaid context, Mr.Bhatt invited the attention of

this Court to Section 139A(5)(d) of the Act, which reads as

under:

“5. Every person shall, ---

(d) Intimate the Assessing Officer any change in his

address or in the name and nature of his business on the

basis of which the permanent account number was allotted

to him.”

13. Mr.Bhatt, thereafter, invited the attention of this Court to

Section 140 of the Act. Section 140 provides as to the verification

of the return. Section 140(a) of the Act reads thus :

“140. The return under Section 115WD or Section 139 shall

be verified--

(a) in the case of an individual,---

(i) by the individual himself; or

(ii) where he is absent from India, by the individual

himself or by some person duly authorised by him on

his behalf; or

(iii) where he is mentally incapacitated from

attending to his affairs, by his guardian or any other

person competent to act on his behalf; and

(iv) where, for any other reason it is not possible for

the individual to verify the return, by any person duly

authorised by him in this behalf.

Provided that in a case referred to in sub-clause (ii) or sub-

clause (iv), the person verifying the return holds a valid

power of attorney from the individual to do so, which shall

be attached to the return.”

14. According to Mr.Bhatt, Sushilaben could not have verified

the returns as she does not fall within any of the categories as

prescribed in clause (a)(i) to (iv) respectively of Section 140 of the

Act.

15. Mr.Bhatt, thereafter, invited the attention of this Court to

Section 153C of the Act. Section 153C(1) of the Act reads thus :

“153C. (1) Notwithstanding anything contained in section

139, section 147, section 148, section 149, section 151 and

section 153, where the Assessing Officer is satisfied that,--

(a) any money, bullion, jewellery or other valuable article

or thing, seized or requisitioned, belongs to; or

(b) any books of account or documents, seized or

requisitioned, pertains or pertain to, or any information

contained therein, relates to,

a person other than the person referred to in section 153A,

then, the books of account or documents or assets, seized or

requisitioned shall be handed over to the Assessing Officer

having jurisdiction over such other person and that

Assessing Officer shall proceed against each such other

person and issue notice and assess or reassess the income

of the other person in accordance with the provisions of

section 153A, if, that Assessing Officer is satisfied that the

books of account or documents or assets seized or

requisitioned have a bearing on the determination of the

total income of such other person for six assessment years

immediately preceding the assessment year relevant to the

previous year in which search is conducted or requisition is

made and for the relevant assessment year or years

referred to in sub-section (1) of section 153A :”

16. According to Mr.Bhatt, Section 153C talks about “other

person”. The term “person” has been defined under Section 2(31)

of the Act, which reads thus :

“2(31) “person” includes--

(i) an Individual;

(ii) a Hindu Undivided Family;

(iii) a Company;

(iv) a Firm;

(v) an association of persons or a body of individuals,

whether incorporated or not;

(vi) a local authority; and

(vii) every artificial juridical person not falling within any of

the preceding sub-clauses.

Explanation.-- For the purposes of this clause, an

association of persons or body of individuals or a local

authority or an artificial juridical persons shall be deemed to

be a person, whether or not such person or body or

authority or juridical person was formed or established or

incorporated with the object of deriving income, profits or

gains;”

17. The endeavour on the part of Mr.Bhatt is to make good his

submission that the legal heir of late Bhupendrabhai Desai

would fall within the ambit of “body of individuals” and,

therefore, it cannot be said that the notice under Section 153C is

invalid. The impugned notice could be said to be valid against

the legal heir of late Bhupendrabhai Desai.

18. In the last, Mr.Bhatt invited the attention of this Court to

Section 124(3)(c) of the Act, which reads thus :

“124. Jurisdiction of Assessing Officers.--

(1) xxxx xxxx

(2) xxxx xxxx

(3) No person shall be entitled to call in question the

jurisdiction of an Assessing Officer---

(a) xxxx xxxx

(b) xxxx xxxx

(c) where an action has been taken under Section

132 or Section 132A, after the expiry of one month

from the date on which he was served with a notice

under sub-section (1) of Section 153A or sub-section (2)

of Section 153C or after the completion of the

assessment, whichever is earlier.”

19. Relying on the aforesaid provision, Mr.Bhatt would submit

that the legal heir of late Bhupendrabhai Desai cannot call in

question the jurisdiction of the Assessing Officer in issuing the

notice under Section 153C of the Act as the action could be said

to have been taken under Section 132 of the Act after the expiry

of period of one month from the date of the notice under Section

153C of the Act.

20. Mr.Bhatt, in support of his aforesaid submissions, has

placed reliance on a decision of the Supreme Court in the case of

Principal Commissioner of Income-tax, Mumbai vs. I-Ven

Interactive Ltd., reported in (2019) 110 taxmann.com 332 (SC).

ANALYSIS :

21. Having heard the learned counsel appearing for the parties

and having gone through the materials on record, the only

question that falls for our consideration is, whether the

proceedings initiated by the Assessing Officer pursuant to the

notice issued under Section 153C of the Act to a dead person are

sustainable in law.

22. A Coordinate Bench of this Court, in the case of

Chandreshbhai Jayantibhai Patel vs. Income Tax Officer, (2019)

101 taxmann.com 362 (Gujarat), had the occasion to consider an

identical issue but in context with Section 148 of the Act. We

should look into the observations made by the Coordinate Bench

in the judgment, which read thus :

“5. Mr.Chintan Dave, learned advocate for the petitioner

submitted that the issuance of a valid notice is the

foundation for the validity of the assessment. It was

contended that the defect in procedure will normally not

amount to lack of jurisdiction, however, the notice prescribed

under section 148 of the Act for the purpose of initiation of

reassessment proceedings is not a mere procedural

requirement, but is a condition precedent to the validity of

the assessment. If no notice is issued or if the notice issued

is shown to be invalid, the proceedings initiated would be

invalid and void. The notice issued in the name of a dead

person is not a valid notice and in the absence of issuance

of a valid notice, the proceedings initiated under section 147

of the Act cannot be said to be valid.

5.1 It was further submitted that in this case, the notice

has been issued to a dead person and hence, such notice is

null and void. To initiate proceedings under section 147 of

the Act, issuance of notice under section 148 of the Act to

the heirs and legal representatives of the deceased is

mandatory, in the absence of which the proceedings cannot

be continued by issuance of notices under section 142(1) of

the Act against the heirs. Reliance was placed upon the

decision of this court in Rasid Lala v. Income Tax Officer,

Ward-1(3)(6), (2017) 77 Taxman.com 39 (Guj.), wherein the

notice under section 148 of the Act was issued to the

assessee long after he had passed away. The heir of the

deceased informed the Assessing Officer that the assessee

has passed away and, therefore, the notice under section

148 of the Act is invalid, despite which the heir was told to

file the return of income in compliance of the said notice. The

court held that the notice issued in the name of a dead

person was not valid and that despite being informed about

the death of the original assessee, the assessee, instead of

taking corrective measures as provided under section 292B

of the Act and issuing fresh notice to the heirs of the

deceased, continued with the reassessment proceedings

against the dead person. The court further held that section

159 of the Act would not be applicable to the facts of that

case, and that, even if section 159 is attracted, the notice

was required to be issued in the name of the heirs of the

deceased assessee. Mr. Dave submitted that the aforesaid

decision would be squarely applicable to the facts of the

present case and that the impugned notice dated

28.03.2018 issued under section 148 of the Act having been

issued against a dead person as well as the subsequent

notices issued pursuant thereto, are invalid and are,

therefore, required to be quashed and set aside.

5.2 The learned advocate for the petitioner also placed

reliance upon the decision of the Madras High Court in the

case of Alamelu Veerappan v. Income Tax Officer, Non-

corporate Ward-2(2), Chennai, (2018) 257 Taxman 72

(Madras), wherein the court held thus:

“16. The settled legal principle being that a notice

issued in the name of the dead person is

unenforceable in law. If such is the legal position,

would the Revenue be justified in contending that

they, having no knowledge about the death of the

assessee, are entitled to plead that the notice is not

defective. In my considered view, the answer to the

question should be definitely against the Revenue.

17. This Court supports such a conclusion with the

following reasons: Admittedly, the limitation period for

issuance of notice for reopening expired on 31.3.2017.

The impugned notice was issued on 30.3.2017 in the

name of the dead person. On being intimated about

the death, the Department sent the notice to the

petitioner - his spouse to participate in the

proceedings. This notice was well beyond the period of

limitation, as it has been issued after 31.3.2017. If we

approach the problem sans complicated facts, a notice

issued beyond the period of limitation i.e. 31.3.2017 is

a nullity, unenforceable in law and without

jurisdiction. Thus, merely because the Department

was not intimated about the death of the assessee,

that cannot, by itself, extend the period of limitation

prescribed under the Statute. Nothing has been placed

before this Court by the Revenue to show that there is

a statutory obligation on the part of the legal

representatives of the deceased assessee to

immediately intimate the death of the assessee or take

steps to cancel the PAN registration.

18. In such circumstances, the question would be as

to whether Section 159 of the Act would get attracted.

The answer to this question would be in the negative,

as the proceedings under Section 159 of the Act can be

invoked only if the proceedings have already been

initiated when the assessee was alive and was

permitted for the proceedings to be continued as

against the legal heirs. The factual position in the

instant case being otherwise, the provisions of Section

159 of the Act have no application.

19. The Revenue seeks to bring their case under

Section 292 of the Act to state that the defect is a

curable defect and on that ground, the impugned

notice cannot be declared as invalid.

20. The language employed in Section 292 of the Act

is categorical and clear. The notice has to be, in

substance and effect, in conformity with or according

to the intent and purpose of the Act. Undoubtedly, the

issue relating to limitation is not a curable defect for

the Revenue to invoke Section 292B of the Act.”

5.3 It was, accordingly, urged that the petition deserves to

be allowed by granting the reliefs as prayed for.

6. Vehemently opposing the petition, Mrs. Mauna Bhatt,

learned Senior Standing Counsel for the respondent

submitted that in this case, the assessee did not file return

of income. When the assessee passed away, the department

not being aware of his death, issued the notice under

section 148 of the Act in his name, which was duly received

by the petitioner who is the heir and legal representative of

the deceased and hence, there is due service of such notice.

Reference was made to sub-section (7) of section 2 of the

Act, which defines “assessee”, to submit that the same

includes every person who is deemed to be an assessee

under any provision of the Act. Referring to section 159 of

the Act, it was pointed out that by virtue of sub-section (3)

thereof, the legal representative of the deceased shall, for

the purposes of the Act, be deemed to be an assessee. It

was submitted that in view of sub-section (2) of section 159,

for the purpose of making an assessment including

reassessment under section 147 of the Act 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) thereof, any proceeding taken

against the deceased shall be deemed to have been taken

against the legal representative, and therefore, the

proceedings undertaken against the petitioner are legal and

valid. It was submitted that therefore, under section 159(2)

(b) of the Act, the legal heir steps into the shoes of the

assessee and the proceeding can be continued against him.

6.1 Reference was made to the decision of the Supreme

Court in the case of Girijanandini Devi v. Bijendra Narain

Choudhary, AIR 1967 SC 1124, for the proposition that

death of the person liable to render an account for property

received by him does not affect the liability of his estate. It

was submitted that therefore, even after his death,

deceased Jayantibhai does not cease to be an assessee and

consequently, the legal representative is responsible for

filing the return of income and answering to the notice. It

was submitted that the Madras High Court in the case of

Alamelu Veerappan v. Income Tax Officer, Non-corporate

Ward-2(2), Chennai (supra), on which reliance has been

placed on behalf of the petitioner, does not refer to section

292B of the Act and, therefore, the said decision would be

not applicable to the facts of the present case. It was

submitted that in this case, the petitioner had knowledge of

the proceedings and has responded to the same as legal

representative of the deceased and, therefore, the

procedural defect which is otherwise curable may be

permitted to be cured.

6.2 Reference was made to section 2(29) of the Act, which

says that “legal representative” has the meaning assigned

to it in clause (11) of section 2 of the Code of Civil Procedure,

1908.

6.3 The learned counsel further invited the attention of the

court to the provisions of section 292B of the Act, which inter

alia provide that no notice, summons or other proceeding,

issued or taken 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,

summons or other proceeding if such notice, summons or

other proceeding is, in substance and effect, in conformity

with or according to the intent and purpose of the Act. It was

submitted that in the light of the provisions of section 292B

of the Act, the defect in the notice by issuing the same to a

dead person would not render the notice invalid, inasmuch

as it is a purely procedural lapse.

6.4 Reliance was placed upon the decision of the Delhi

High Court in the case of Sky Light Hospitality LLP v.

Assistant Commissioner of Income Tax, (2018) 405 ITR 296

(Delhi), wherein the court has held thus:

“17. In the context of the present writ petition, the

aforesaid ratio is a complete answer to the contention

raised on validity of the notice under section 147/148

of the Act as it was addressed to the 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 filed without prejudice reply/letter dated

April 11, 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 error and technical lapse

on the part of the respondent. No prejudice was

caused.”

6.5 It was pointed out that the above decision of the Delhi

High Court came to be challenged before the Supreme Court

in Sky Light Hospitality LLP v. Assistant Commissioner of

Income Tax, [2018] 92 taxman.com 93 (SC), which

dismissed the special leave petition holding that the wrong

name given in the notice was merely a clerical error which

could be corrected under section 292B of the Act.

6.6 Reliance was also placed upon the decision of the

Supreme Court in the case of Commissioner of Income Tax,

Shillong v. Jai Prakash Singh, [1996] 219 ITR 737, wherein

the assessee did not file returns for three assessment years

and died in April 1967, leaving behind him, in all, ten legal

heirs. The eldest son Jai Prakash Singh filed the returns for

the three assessment years. Such returns were signed by

him alone and not by the other legal representatives.

Scrutiny assessment came to be carried out by the Income

Tax Officer, during the course of which, notices under

section 142(1) of the Act came to be issued to Jai Prakash to

appear and produce documents, accounts and other

material, who complied with the same and did not raise any

objection that notices must be issued to the other legal

representatives of the deceased. Assessment orders were

made in the name of all the ten legal representatives who

were described as legal representatives of the deceased.

Appeals were filed by Jai Prakash contending that the

assessments were illegal and invalid as no notice had been

issued to all the legal representatives of deceased. The court

placed reliance upon a decision of the Bombay High Court in

Maharaja of Patiala v. Commissioner of Income Tax

(Central), Bombay, (1943) 11 ITR 201, for the proposition

that an assessment made without strictly complying with

section 24-B (section 159 in the present Act) is not void or

illegal and that any infractions in that behalf can be waived

by the assessee. The court also placed reliance upon its

earlier decision in Estate of Late Rangalal Jajodia v.

Commissioner of Income Tax, Madras, (1971) 79 ITR 505,

for the proposition that an omission to serve or any defect in

the service of notices provided by procedural provisions does

not efface or erase the liability to pay tax where such

liability is created by distinct substantive provisions

(charging sections). Any such omission or defect may render

the order made irregular – depending upon the nature of the

provision not complied with, but certainly not void or illegal.

Following the said decisions, the court held that in the facts

and circumstances of the case, the orders of assessment

made by the Income Tax Officer without notice to all the

legal representatives are not null and void in law, but are

merely irregular/defective proceedings which can be set

right by remitting the matters to the Income Tax Officer for

making fresh assessments with notice to all legal

representatives.

6.7 Reliance was placed upon the decision of this court in

the case of Commissioner of Income Tax v. Sumantbhai C.

Munshaw, (1981) 128 ITR 142, wherein though the notice

was issued to the deceased person, the proceeding was

continued against the legal representative who participated

in the proceeding and also filed return of income without

raising any objection as to the validity of the assessment

proceedings. The legal representative had, therefore,

submitted to the jurisdiction of the Assessing Officer. The

court held that if the legal representative is present before

the taxing authority in some capacity or voluntarily appears

in the proceeding without service of notice or upon service of

notice not addressed to him but to the deceased assessee

and does not object to the continuance of the proceeding

against the dead person and is heard by the Income Tax

Officer in regard to the tax liability of the deceased and

invites an assessment on merits, such a legal representative

must be taken to have exercised the option of abandoning

the technical plea that the proceeding has not been

continued against him, although in substance and reality, it

has been so continued.

6.8 The learned counsel submitted that issuance of notice

in the name of the deceased being a procedural defect, can

be cured under section 292B of the Act and that on account

of such technical defect, the notice is not void. Moreover, the

petitioner having responded to the notice under section 148

of the Act, the Assessing Officer is justified in continuing the

proceedings against him. It was, accordingly, urged that the

petition being devoid of merits, deserve to be dismissed.

7. 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 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.

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 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 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).-

(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 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 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), –

(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 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 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 herein

above, 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.”

23. The following principles are discernible from the above

referred judgment of this Court :

i. The issuance of the notice to a dead assessee is not a

mere technical defect which can be corrected under Section

292B of the Act. The issuance of the notice to a dead

assessee and the consequent proceedings pursuant thereto

would be without jurisdiction and, therefore, null and void.

ii. 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 re-assessment. 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.

24. We are of the view that the same principle as referred to

above would apply even to a notice issued to a dead assessee

under Section 153C of the Act. It is not in dispute that the legal

heir of late Bhupendrabhai Desai had not participated in the

proceedings. All that the legal heir of late Bhupendrabhai Desai

did was to inform the Assessing Officer about the death of his

father and requested to drop the proceedings. It is true that

although the father passed away in the year 2017, yet the legal

heir did not inform the department upto October 2019. However,

at the same time, we should not overlook the fact that even after

coming to know about the demise of late Bhupendrabhai, the

department could have issued a valid notice to the legal heir as

the period of limitation of 21 months had not expired. We fail to

understand what prevented the department from issuing a valid

notice to the legal heir within the prescribed time period.

25. In the aforesaid context, we may refer to a recent

pronouncement of the Supreme Court in the case of Principal

Commissioner of Income Tax, New Delhi vs. Maruti Suzuki India

Limited, (2019) 107 taxmann.com 375 (SC). The ratio of this

decision of the Supreme Court is that during the pendency of the

assessment proceedings if the assessee company gets

amalgamated with another company, it would lose its existence

and the assessment order passed subsequently in the name of

the said non-existing entity would be without jurisdiction and

liable to be set-aside.

26. In the facts of the case before the Supreme Court, although

the Assessing Officer was informed of the amalgamated company

having ceased to exist as a result of the approved scheme of

amalgamation, yet the jurisdictional notice was issued only in its

name. The Supreme Court took the view that the basis on which

the jurisdiction was invoked was fundamentally at odds with the

legal principle that the amalgamating entity ceases to exist upon

the approved scheme of amalgamation. We quote the relevant

observations thus :

“32. On behalf of the Revenue, reliance has been placed on

the decision of this Court in Commissioner of Income Tax,

Shillong v Jai Prakash Singh38 (“Jai Prakash Singh”). That

was a case where the assessee did not file a return for three

assessment years and died in the meantime. His son who

was one of the legal representatives filed returns upon

which the assessing officer issued notices under Section

142 (1) and Section 143 (2). These were complied with and

no objections were raised to the assessment proceedings.

The assessment order mentioned the names of all the legal

representatives and the assessment was made in the status

of an individual. In appeal, it was contended that the

assessment proceedings were void as all the legal

representatives were not given notice. In this backdrop, a

two judge Bench of this Court held that the assessment

proceedings were not null and void, and at the worst, that

they were defective. In this context, reliance was placed on

the decision of the Federal Court in Chatturam v CIT39

holding that the jurisdiction to assess and the liability to

pay tax are not conditional on the validity of the notice : the

liability to pay tax is founded in the charging sections and

not in the machinery provisions to determine the amount of

tax. Reliance was also placed on the decision in Maharaja of

Patiala v CIT (1943) 11 ITR 202 (Bom.) (“Maharaja of

Patiala”). That was a case where two notices were issued

after the death of the assessee in his name, requiring him to

make a return of income. The notices were served upon the

successor Maharaja and the assessment order was passed

describing the assessee as “His Highness...late Maharaja of

Patiala”. The successor appealed against the assessment

contending that since the notices were sent in the name of

the Maharaja of Patiala and not to him as the legal

representative of the Maharaja of Patiala, the assessments

were illegal. The Bombay High Court held that the successor

Maharaja was a legal representative of the deceased and

while it would have been better to so describe him in the

notice, the notice was not bad merely because it omitted to

state that it was served in that capacity. Following these

two decisions, this Court in Jai Prakash Singh held that an

omission to serve or any defect in the service of notices

provided by procedural provisions does not efface or erase

the liability to pay tax where the liability is created by a

distinct substantive provision. The omission or defect may

render the order irregular but not void or illegal. Jai Prakash

Singh and the two decisions that it placed reliance upon

were evidently based upon the specific facts. Jai Prakash

Singh involved a situation where the return of income had

been filed by one of the legal representatives to whom

notices were issued under Section 142(1) and 143(2). No

objection was raised by the legal representative who had

filed the return that a notice should also to be served to

other legal representatives of the deceased assessee. No

objection was raised before the assessing officer. Similarly,

the decision in Maharaja of Patiala was a case where the

notice had been served on the legal representative, the

successor Maharaja and the Bombay High Court held that it

was not void merely because it omitted to state that it was

served in that capacity.

33. In the present case, despite the fact that the assessing

officer was informed of the amalgamating company having

ceased to exist as a result of the approved scheme of

amalgamation, the jurisdictional notice was issued only in

its name. The basis on which jurisdiction was invoked was

fundamentally at odds with the legal principle that the

amalgamating entity ceases to exist upon the approved

scheme of amalgamation. Participation in the proceedings by

the appellant in the circumstances cannot operate as an

estoppel against law. This position now holds the field in

view of the judgment of a Co-ordinate Bench of two learned

judges which dismissed the appeal of the Revenue in Spice

Enfotainment on 2 November 2017. The decision in Spice

Enfotainment has been followed in the case of the

respondent while dismissing the Special Leave Petition for

AY 2011-2012. In doing so, this Court has relied on the

decision in Spice Enfotainment.”

27. A lot has been argued by Mr.M.R.Bhatt, the learned senior

counsel appearing for the Revenue, by submitting that the

department was not intimated about the death of the assessee

and the legal heirs failed to take any steps to cancel the PAN

registration in the name of the assessee and, therefore, no fault

could be found with the department.

28. In the aforesaid context, we may refer to a decision of the

Madras High Court in the case of Alamelu Veerappan vs. Income

Tax Officer, Non-corporate Ward-2(2), Chennai, wherein the

Madras High Court held as under :

“14. The issue, which falls for consideration, is as to

whether the impugned notice under Section 148 of the Act

issued in the name of the dead person - the said

Mr.S.Veerappan is enforceable in law and the subsidiary

issue being as to whether the petitioner, being the wife of

the said Mr.S.Veerappan, can be compelled to participate in

the proceedings and respond to the impugned notice. The

fact that the said Mr.S.Veerappan died on 26.1.2010 is not

in dispute. If this fact is not disputed, then the notice issued

in the name of the dead person is unenforceable in the eye

of law.

15. The Department seeks to justify their stand by

contending that they were not intimated about the death of

the assessee, that the legal heirs did not take any steps to

cancel the PAN registration in the name of the assessee and

that therefore, the Department was justified in directing the

petitioner to cooperate in the proceedings pursuant to the

impugned notice.

16. The settled legal principle being that a notice issued in

the name of the dead person is unenforceable in law. If such

is the legal position, would the Revenue be justified in

contending that they, having no knowledge about the death

of the assessee, are entitled to plead that the notice is not

defective. In my considered view, the answer to the question

should be definitely against the Revenue.

17. This Court supports such a conclusion with the

following reasons : Admittedly, the limitation period for

issuance of notice for reopening expired on 31.3.2017. The

impugned notice was issued on 30.3.2017 in the name of

the dead person. On being intimated about the death, the

Department sent the notice to the petitioner - his spouse to

participate in the proceedings. This notice was well beyond

the period of limitation, as it has been issued after

31.3.2017. If we approach the problem sans complicated

facts, a notice issued beyond the period of limitation i.e.

31.3.2017 is a nullity, unenforceable in law and without

jurisdiction. Thus, merely because the Department was not

intimated about the death of the assessee, that cannot, by

itself, extend the period of limitation prescribed under the

Statute. Nothing has been placed before this Court by the

Revenue to show that there is a statutory obligation on the

part of the legal representatives of the deceased assessee to

immediately intimate the death of the assessee or take

steps to cancel the PAN registration.

18. In such circumstances, the question would be as to

whether Section 159 of the Act would get attracted. The

answer to this question would be in the negative, as the

proceedings under Section 159 of the Act can be invoked

only if the proceedings have already been initiated when the

assessee was alive and was permitted for the proceedings

to be continued as against the legal heirs. The factual

position in the instant case being otherwise, the provisions

of Section 159 of the Act have no application.

19. The Revenue seeks to bring their case under Section

292 of the Act to state that the defect is a curable defect and

on that ground, the impugned notice cannot be declared as

invalid.

20. The language employed in Section 292 of the Act is

categorical and clear. The notice has to be, in substance and

effect, in conformity with or according to the intent and

purpose of the Act. Undoubtedly, the issue relating to

limitation is not a curable defect for the Revenue to invoke

Section 292B of the Act.

21. All the above reasons are fully supported by the

decision in the case of Vipin Walia. In that case, the notice

dated 27.3.2015 was issued under Section 148 of the Act to

the assessee, who died on 14.3.2015. The validity of the

said notice was put to challenge. The Income Tax Officer

took a stand that since the intimation of death of the

assessee on 14.3.2015 was not received by her, the notice

was issued on a dead person. However, the fact regarding

the death of the assessee could not be disputed by the

Department. The Department continued the proceedings

under Section 147/148 of the Act and at that stage, the son

of the deceased approached the High Court of Delhi. The

High Court of Delhi pointed out that what was sought to be

done by the Income Tax Officer was to initiate proceedings

under Section 147 of the Act against the deceased assessee

for the assessment year 2008-09, for which, the limitation

for issuance of notice under Section 147/148 of the Act was

31.3.2015 and on 02.7.2015 when the notice was issued,

the assessee was already dead and if the Department

intended to proceed under Section 147 of the Act, it could

have done so prior to 31.3.2015 by issuing the notice to the

legal heirs of the deceased and beyond that date, it could

not have proceeded in the matter even by issuing notice to

the legal representatives of the assessee. The decision in

Vipin Walia fully supports the case of the petitioner herein.

22. The decision in the case of Vipin Walia was followed

in the decision of the High Court of Gujarat in the case of

Rasid Lala, in which, the re-assessment proceedings were

initiated against the dead person, that too, after a long

delay. The Court pointed out that even if the provisions of

Section 159 of the Act are attracted, in that case also, the

notice was required to be issued against and in the name of

the heirs of the deceased assessee and under the said

circumstances, Section 159 of the Act shall not be of any

assistance to the Revenue.

23. In the decision of the Delhi High Court in the case of

Spice Entertainment Ltd., one of the questions, which fell for

consideration, is as to whether such framing of assessment

against a non existing entity or a dead person could be

brought within the ambit of Section 292B of the Act and

after referring to the decisions on the point including the

decision of the Allahabad High Court in the case of Sri Nath

Suresh Chand Ram Naresh Vs. CIT [reported in (2006) 280

ITR 396], it has been held that the provisions of Section

292B of the Act are not applicable and that framing of

assessment against a non existing entity/person goes to the

root of the matter, which is not a procedural irregularity, but

a jurisdictional defect, as there cannot be any assessment

against a dead person.

24. The learned Senior Standing Counsel for the Revenue

has sought to distinguish the decision in the case of Spice

Entertainment Ltd., by referring to Sky Light Hospitality LLP.

25. On a perusal of the factual position therein, the Court

came to the conclusion that the defect was curable because

it was held that the notice was not addressed to the correct

name and that the PAN mentioned was also incorrect. The

factual background was taken into consideration and the

Court held that errors and mistakes cannot and should not

nullify the proceedings, which are otherwise valid and that

no prejudice had been caused, as this being the mandate of

Section 292B of the Act. The decision in the case of Sky

Light Hospitality LLP is clearly distinguishable on facts and

it does not support the case of the Revenue.”

29. Ultimately, in view of the aforesaid, the only proposition of

law that is applicable in the present litigation is that a notice, be

it under Section 148 of the Act or Section 153C of the Act, issued

to a dead person, is unenforceable in law. If such is the legal

position, the Revenue cannot contend that as they had no

knowledge about the death of the assessee, they are entitled to

plead that the notice is not defective.

30. We shall now deal with the argument canvassed by

Mr.Bhatt as regards Section 2(31) of the Act, which defines the

term “person”. The argument of Mr.Bhatt is that the legal heir of

late Bhupendrabhai Desai would fall within the ambit of

“person” as defined under Section 2(31) of the Act and “person”

includes a body of individuals. We may only observe that this

definition of the term “person” referred to above does not include

the legal representatives of persons who are since deceased.

31. In the aforesaid context, we may refer to and rely upon a

decision of the Supreme Court in the case of Shabina Abraham

(supra). In Shabina Abraham (supra), the question before the

Supreme Court was, whether an assessment proceeding under

the Central Excises and Salt Act, 1944, can continue against the

legal representatives/estate of a sole proprietor/manufacturer

after he is dead.

32. A similar argument was canvassed by the learned counsel

appearing for the Revenue by placing reliance on the definition of

the term “person” under the General Clauses Act, 1897. We

quote the relevant observations of the Supreme Court thus :

“Learned counsel for the Revenue also relied upon the

definition of a “person” under the General Clauses Act,

1897. Section 3(42) of the said Act defines “person as

under:-

“(42) “Person” shall include any company or

association or body of individuals whether

incorporated or not.”

It will be noticed that this definition does not take us any

further as it does not include legal representatives of

persons who are since deceased. Equally, Section 6 of the

Central Excises Act, which prescribes a procedure for

registration of certain persons who are engaged in the

process of production or manufacture of any specified goods

mentioned in the schedule to the said Act does not throw

any light on the question at hand as it says nothing about

how a dead person’s assessment is to continue after his

death in respect of excise duty that may have escaped

assessment. Also, the judgments cited on behalf of revenue,

namely, Yeshwantrao v. The Commissioner of Wealth Tax,

Bangalore, AIR 1967 SC 135 at pages 140, 141 para 18:

(1966) Suppl. SCR 419 at 429 A-B, C.A. Abraham v. The

Income-Tax Officer, Kottayam & Another, AIR 1961 SC 609

at 612 para 6: (1961) 2 SCR 765 at page 771, The State of

Tamil Nadu v. M.K. Kandaswami & Others, AIR 1975 SC

1871 (para 26): (1975) 4 SCC 745 (para 26), Commissioner

of Sales Tax, Delhi & Others v. Shri Krishna Engineering Co.

& Others, (2005) 2 SCC 695, page 702, 703 paras 19 to 23,

all enunciate principles dealing with tax evasion in the

context of construing provisions which are designed to

prevent tax evasion. The question at hand is very different –

it only deals with whether the Central Excises and Salt Act

contains the necessary provisions to continue assessment

proceedings against a dead man in respect of excise duty

payable by him after his death, which is a question which

has no relation to the construction of provisions designed to

prevent tax evasion.”

33. We also deem it appropriate to quote the observations

made by the Supreme Court in paragraph 18, which reads thus :

“18. It will be seen that the definition of “assessee”

contained in Section 4(3)(a) of the Central Excises and Salt

Act is similar to the definition of assessee contained in the

Income Tax Act, 1922. Under that Act, as we have already

seen, an assessee means “a person by whom income tax is

payable.” Under the Central Excises and Salt Act, an

assessee means “the person who is liable to pay the duty of

excise under this Act”. The present tense being used, it is

clear that the person referred to can only be a living person

as was held in Ellis C.Reid, AIR 1931 Bom 333. Further, the

only extension of the definition of “assessee” under the

Central Excises and Salt Act is that it would also include an

assessee’s agent, which has nothing to do with the facts of

the present case. It is well settled that a “means and

includes” definition is exhaustive in nature and that there is

no scope to read anything further into the said definition.”

34. The Supreme Court, in a plethora of judgments, has taken

the view that if the person sought to be taxed comes within the

letter of the law, he must be taxed, however great the hardship

may appear to the judicial mind to be. On the other hand, if the

State, seeking to recover the tax, cannot bring the citizen within

the letter of the law, the citizen is free, however, apparently

within the spirit of law the case might otherwise appear to be.

The Supreme Court, in CST vs. Modi Sugar Mills Ltd., AIR 1961

SC 1047, observed thus :

“In interpreting a taxing statute, equitable considerations

are entirely out of place. Nor can taxing statutes be

interpreted on any presumptions or assumptions. The court

must look squarely at the words of the statute and interpret

them. It must interpret a taxing statute in the light of what is

clearly expressed; it cannot imply anything which is not

expressed; it cannot import provisions in the statute so as to

supply any assumed deficiency.”

35. In view of the aforesaid discussion, we are left with no

other option but to allow the present writ-application and hold

that the impugned notice being invalid, the further proceedings

pursuant thereto are not tenable in law.

36. In the result, this writ-application succeeds and is hereby

allowed. The impugned notice as well as the order (Annexure-C)

are hereby quashed and set-aside. The connected writ-

applications also succeed on the same line and the impugned

respective notices and the orders are hereby quashed and set-

aside.