Savita Kapila ( Legal Heir of late Shri Mohinder Paul Kapila) v. ACIT (2020) 426 ITR 502/ 192 DTR 73/ 273 Taxman 148 / 316 CTR 465 (Delhi)(HC)

S. 148 : Reassessment –Notice issued to deceased person is not valid No legal requirement for legal representatives to report death of assessee to Income-Tax Authorities — Not a curable defect- Existence of alternative remedy is not an absolute bar to issue of writ – Notice and order passed was quashed as without jurisdiction [ S.147, 149(1) (b) ,159 292BB , Art .226 ]

The assessee, MPK, expired on December 21, 2018. A notice dated March 31, 2019 under section 148 was issued in his name. An assessment order was passed in the name of one of his legal representatives on December 27, 2019. On a writ petition to quash the notice and consequential proceedings.  Allowing the petition the Court held that the notice dt.  March 31, 2019, under S.  148 of the Act was issued to the deceased-assessee after the date of his death, December 21, 2018 and thus inevitably the notice could never have been served upon him. Consequently, the jurisdictional requirement under S.  148 of the Act, of service of notice was not fulfilled. Issuance of notice upon a dead person and non-service of notice does not come under the ambit of mistake, defect or omission. Consequently, S.  292B of the Act does not apply. S.  292BB is applicable to an assessee and not to the legal representatives. S.  159 of the Act applies to a situation where proceedings are initiated or are pending against the assessee when he is alive and after his death the legal representative steps into the shoes of the deceased-assessee. There is no statutory requirement imposing an obligation upon legal heirs to intimate the death of the assessee. An alternative statutory remedy does not operate as a bar to maintainability of a writ petition where the order or notice or proceedings are wholly without jurisdiction. If the Assessing Officer had no jurisdiction to initiate assessment proceedings, the mere fact that subsequent orders have been passed would not render the challenge to jurisdiction infructuous.( Referred  Whirlpool Corporation v. Registrar of Trade Marks [1998] 8 SCC  1,  PCIT v. Maruti Suzuki India Ltd (2019) 416 ITR 613 (SC) Sudha Prasad (Smt ) .   v. CCIT ( 2005) 275 ITR 135 (Jharkhand) (HC)  distinguished. The notice dated March 31, 2019 and all consequential orders and proceedings passed or initiated pursuant thereto including orders dated November 21 and December 27, 2019 were quashed.( AY.2012-13)