Notice under Section 148(A)(b) was defective as the assessee was dead earlier to its issuance – Karnataka High Court.
In a recent judgment, the Hon’ble Karnataka High Court has held that notice under Section 148(A)(b) was defective on the ground that the assessee was dead earlier to it therefore all subsequent proceedings would also stand abated.
ABCAUS Case Law Citation:
ABCAUS 4087 (2024) (06) HC
In The instant case the assessee Petitioner had filed a Writ Petition before the Hon’ble High Court of Karnataka challenging the correctness of the assessment order passed under Section 147 read with Section 144 of the Income Tax Act, 1961 (the Act), order passed under Section 271-F of the Act , order passed under Section 271(1(b) and 271(1)(c) of the Act.
It was submitted that the notice under Section 148(A)(b) of the Act was issued in the name of the assessee who admittedly had died eight months before . It was contened that as per settled position in law, where notice is issued to a dead person, proceedings are non est. The petitioner has relied on the order of the High Court of Judicature at Bombay in support of such contention.
Under the similar circumstances, the Bombay High Court had observed that,
“The facts are not in dispute. The impugned notice for reopening the assessment was issued on a dead person. There are several judgments of different High Courts holding that the notice issued on a dead person or reopening of assessment of a dead person is null and void in law and the requirement of issuing a notice to a correct person is not merely a procedural requirement but a condition precendent for a notice to be valid in law. A reference in this respect can be made to a decision of this Court in Sumit Balkrishna Gupta vs. Assistant Commissioner of Income Tax, Circle 16(2), Mumbai – (2019) 103 taxmann.com 188 (Bombay). In the case of Principal Commissioner of Income Tax, New Delhi vs. Maruti Suzuki India Ltd. – (2019) 107 taxmann.com 375 (SC) the Apex Court has held that the notice issued and the order passed in the name of an old entity is bad in law and that such error was not curable u/s 292B of the Act as the same constitutes a substantive illegality and not a mere procedural violation.”
The Hon’ble High Court opined that in light of the admitted facts and if the notice under Section 148(A)(b) of the Act, is defective on the ground that the assessee was dead earlier to it, all subsequent proceedings would also stand abated.
Accordingly on such sole ground, the Hon’ble High Court set aside the ex-parte assessment order passed under Section 147 read with Section 144 of the Act, order passed under Section 271-F of the Act; order dated 20.09.2023 passed under Section 271(1(b) of the Act and the order under Section 271(1)(c) of the Act.
However, the right of the Revenue to proceed in further proceedings as regards the due of the deceased assessee, as against her legal representatives as per law was reserved.
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