High Court of Delhi

Savita Kapila Vs Assistant Commissioner Of Income Tax

MANU/DE/1382/2020

16.07.2020

Direct Taxation

Notice under Section 148 of IT Act cannot be issued to dead person

Present writ petition had been filed seeking a direction to the Respondent to quash the notice dated 31st March, 2019 issued to the deceased-assessee (father of the Petitioner) under Section 148 of the Income Tax Act, 1961 (Act, 1961) and all the consequential proceedings emanating therefrom including orders dated 21st November, 2019 and 27th December, 2019 passed by the Respondent.

Learned counsel for the Petitioner stated that, the impugned orders passed in consequence to the impugned notice had been passed ignoring the settled position of law. He submitted that, since the impugned notice under Section 148 of the Act, 1961 was issued subsequent to the death of the assessee, the statutory requirement of service under Section 148 of the Act, 1961 had not been fulfilled. He pointed out that, notice under Section 148 of the Act, 1961 was not issued to the Petitioner or any other legal representative of the deceased-assessee and the proceedings were simply transferred to the Petitioner’s PAN vide letter dated 27th December, 2019 ignoring the fact that there were other legal heirs of the deceased-assessee too.

In the present case the, notice dated 31st March, 2019 under Section 148 of the Act, 1961 was issued to the deceased assessee after the date of his death and thus, inevitably the said notice could never have been served upon him. Consequently, the jurisdictional requirement under Section 148 of the Act, 1961 of service of notice was not fulfilled in the present instance. The issuance of a notice under Section 148 of the Act is the foundation for re-opening of an assessment. Consequently, the sine qua non for acquiring jurisdiction to reopen an assessment is that such notice should be issued in the name of the correct person.

Also, no notice under Section 148 of the Act, 1961 was ever issued to the Petitioner during the period of limitation and simply proceedings were transferred to the PAN of the Petitioner, who happens to be one of the four legal heirs of the deceased assessee vide letter dated 27th December, 2019. Therefore, the assumption of jurisdiction qua the Petitioner for the relevant assessment year is beyond the period prescribed and consequently, the proceedings against the Petitioner are barred by limitation in accordance with Section 149(1)(b) of the Act, 1961.

Further, Section 159 of the Act, 1961 applies to a situation where proceedings are initiated / pending against the assessee when he is alive and after his death the legal representative steps into the shoes of the deceased assessee. Since, that is not the present factual scenario, Section 159 of the Act, 1961 does not apply to the present case.

Present Court is of the view that, in the absence of a statutory provision, it is difficult to cast a duty upon the legal representatives to intimate the factum of death of an assessee to the Income Tax Department. The legal heirs are under no statutory obligation to intimate the death of the assessee to the revenue.

Present Court is also of the view that, Section 292BB of the Act, 1961 is applicable to an assessee and not to a legal representative. Further, in the present case, one of the legal heirs of the deceased Assessee, i.e. the Petitioner, had neither co-operated in the assessment proceedings nor filed return or waived the requirement of Section 148 of the Act, 1961 or submitted to jurisdiction of the Assessing Officer. She had merely uploaded the death certificate of the deceased assessee.

The present writ petition is allowed and the impugned notice dated 31st March, 2019 and all consequential orders/proceedings passed/initiated thereto including orders dated 21st November, 2019 and 27th December, 2019 are quashed.

Tags : Legal representative Notice Validity

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