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A reopening notice u/s 148 of the Income Tax Act, 1961 issued in the name of a deceased assessee is null and void: High Court of Delhi

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. This requirement of issuing notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. Consequently, a reopening notice under Section 148 of the Act, 1961 issued in the name of a deceased assessee is null and void. The legal heirs are under no statutory obligation to intimate the death of the assessee to the Revenue. These were stated by High Court of Delhi, consisting Justice Manmohan in the case of Dharamraj vs. Income Tax Officer [W.P.(C) 9227/2021] on 17.01.2022.

The facts of the case are that the petitioner is the son of Late Sh. Bhanger Singh Tanwar (hereinafter referred to as the ‘Assessee’) who died on 14.01.2016. The impugned notice under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’) was issued in the name of the Assessee. The petitioner claims that he did not receive the said notice. Subsequently, notice dated 30.10.2019 under Section 142(1) of the Act was again issued in the name of the Assessee. As no response was received to these notices, a Show Cause Notice was issued to the Assessee. Finally, an assessment order was passed against the Assessee. Notice under Section 221(1) and 271(1) (b) of the Act were also issued in the name of the Assessee.

The Counsel for the petitioner challenged the above notice served on petitioner and all the other proceedings on the ground that they were initiated against a person who had died prior to the issuance of notice and therefore, all proceedings were void ab initio.

The Counsel for the respondent submitted that notice under Section 148 of the Act was issued at the same address of the Assessee which is available in the ITD data base. The said notice was duly served as it was never received back by the respondent. Thereafter, notice under Section 142 (1) was issued at the same address and was served by the postal agencies. As no response to the communications was received, a Show Cause Notice was issued and sent again at the same address. The counsel further submitted that the factum of death of the Assessee was never communicated to the respondent by the legal heirs, though the notices were duly served at the given address. He contended that the petitioner, therefore, has an alternate efficacious remedy in form of a statutory appeal and this Court should refuse to entertain the present petition.

The High Court of Delhi held that validity of a notice and proceedings against a dead person is no longer res integra. The issuance of a notice u/s 148 of the Act is the foundation for reopening 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. This requirement of issuing notice to a correct person and not to a dead person is not merely a procedural requirement but is a condition precedent to the impugned notice being valid in law. Consequently, in view of the above, a reopening notice under Section 148 of the Act, 1961 issued in the name of a deceased assessee is null and void. The legal heirs are under no statutory obligation to intimate the death of the assessee to the Revenue. Consequently, the impugned notice issued u/s 148 of the Act was set aside.

Judgment reviewed by Shristi Suman. Read Judgment

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