4. os wp 3563 18.doc R.M. AMBERKAR (Private Secretary) IN HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. WRIT PETITION NO. 3563 OF 2018 Sumit Balkrishna Gupta .. Petitioner Versus Asstt. Commissioner of Income Tax, Circle 16(2), Mumbai .. Respondents & Ors. ................... Mr. Satish Mody a/w Ms. Aasifa Khan for Petitioner Mr. Suresh Kumar for Respondents ................... CORAM : AKIL KURESHI & M.S. SANKLECHA, JJ. DATE : FEBRUARY 15, 2019. P.C.: 1. This petition under Article 226 of Constitution of India seeks to set aside :- a) notice dated 31.7.2017 issued under Section 143(2) of Income Tax Act, 1961 ("the Act" for short) relating to assessment year 2016-17 and (b) order dated 19.11.2018 passed by Assessing Officer - respondent No. 1 rejecting petitioner's preliminary objection that impugned notice dated 31.7.2017 be withdrawn as it is null and void. This on ground that impugned notice dated 31.7.2017 has been issued in name of deceased 1 of 10 ::: Uploaded on - 20/02/2019 ::: Downloaded on - 21/02/2019 09:48:17 ::: 4. os wp 3563 18.doc assessee and not on his legal heir i.e petitioner herein. 2. This petition relates to Assessment Year 2016-17. 3. Briefly stated, facts giving rise to petition are as under: 2.1 petitioner is son and legal heir of assessee Mr. Balkrishna Gupta who died on 9.6.2014. For subject assessment year 2016-17, petitioner being legal heir of deceased assessee Balkrishna Gupta filed return of income on 17.10.2016 declaring total income of Rs. 14.67 lacs. 2.2 On 30.1.2017, petitioner uploaded request to be registered as legal heir of deceased Balkrishna Gupta. This request of petitioner was accepted by respondent - Revenue as request was successfully uploaded on Income Tax Portal. 2.3 On 31.7.2017, impugned notice was issued by respondent No. 1 - Assessing Officer in name of 2 of 10 ::: Uploaded on - 20/02/2019 ::: Downloaded on - 21/02/2019 09:48:17 ::: 4. os wp 3563 18.doc deceased Balkrishna Gupta. 2.4 petitioner, by letter dated 16.11.2018, called upon Assessing Officer to withdraw impugned notice issued under Section 143(2) of Act as it has been issued in name of dead person. By aforesaid communication, respondent No. 1 was informed that Revenue was aware about death of original assessee Balkrishna Gupta as is evident from assessment orders passed for assessment year 2014-15 which was completed on 30.12.2016. Thus, impugned notice is null and void. Therefore, no further proceeding be taken on basis of above notice. Besides petitioner also registered its objection to notice in terms of Section 292BB of Act. 2.5 However, respondent No. 1 by impugned order dated 19.11.2018 rejected petitioner's objection to impugned notice having been issued in name of dead person on following grounds:- 3 of 10 ::: Uploaded on - 20/02/2019 ::: Downloaded on - 21/02/2019 09:48:17 ::: 4. os wp 3563 18.doc (i). nature of defect viz. issue of notice in case of wrong person stands cured by Section 292B of Act; (ii) That legal heir of deceased was not registered with database of Income Tax Department. Thus, no fault in having issued notice in name of deceased assessee; and (iii) return for assessment year 2016-17 was filed in name of deceased assessee. 4. It is in backdrop of above facts, impugned notice dated 31.7.2017 and order dated 19.11.2018 have been challenged in this petition. principal ground of challenge is that impugned notice issued in name of dead person is nonest in law and does not bestow jurisdiction upon Assessing Officer to carry out scrutiny assessment under Section 143(3) of Act. 5. Mr. Mody, learned counsel in support of petition submits as under:- (a) impugned notice dated 31.7.2017 under Section 143(2) of Act issued in name of 4 of 10 ::: Uploaded on - 20/02/2019 ::: Downloaded on - 21/02/2019 09:48:17 ::: 4. os wp 3563 18.doc dead person, is no notice in law. Thus, Assessing Officer did not acquire jurisdiction to scrutinize return of income under Section 143(3) of Act; (b) reason for not issuing impugned notice in name of petitioner being non-registration as legal heir is not correct as petitioner had also registered himself with Income Tax Authorities on its portal as legal heir of deceased assessee on 30.1.2017 i.e much before issuance of impugned notice. (c) Moreover on facts, respondents were aware of demise of original assessee in as much as earlier assessment order for assessment year 2014-15 was issued in name of petitioner as legal representative of deceased assessee; (d) Section 292B will not come into play in case where notice had been issued in name of dead person and in support, reliance was placed upon decisions of Gujrat High Court in case of Vikram Singh Vs. Union of India & 5 of 10 ::: Uploaded on - 20/02/2019 ::: Downloaded on - 21/02/2019 09:48:17 ::: 4. os wp 3563 18.doc Ors.1, Delhi High Court in case of Rajendra Kumar Sehgal Vs. I.T.O., New Delhi 2 rendered on 19.11.2018 and decision of Madras High Court in case of Alamelu Veerappan Vs. I.T.O., Chennai3 rendered on 7.6.2018; and (e) filing of return of income in name of dead assessee was mistake on part of petitioner. However, mistake on part of petitioner when all facts are known to respondents will not make notice valid so as to give jurisdiction. 6. Mr. Suresh Kumar, learned counsel for Revenue submits as under: (a) that this Court should not exercise its extra ordinary jurisdiction in view of fact that petitioner had filed return of income for assessment year 2016-17 on 17.10.2016 in name of deceased assessee. Thus, notice issued in 1 [2018] 401 ITR 307 (Gujrat) 2 WP(C) NO. 11255/2017, CM No. 46017/2017 3 WP No. 30060 of 2017 & WPM NO. 32631 of 2017 6 of 10 ::: Uploaded on - 20/02/2019 ::: Downloaded on - 21/02/2019 09:48:17 ::: 4. os wp 3563 18.doc name of deceased assessee; and (b) In any case, Section 292B of Act would cure defect of notice being issued in wrong name under Section 143(2) of Act. Thus, this Court should not interfere and petitioner should be directed to cooperate in scrutiny assessment under Section 143(3) of Act. 7. We have considered rival submissions. It is fact that petitioner had filed return for assessment year 2016- 17 in name of deceased assessee and not in his name as legal heir of deceased assessee. This return was filed on 17.10.2016. However, we note that return was signed by petitioner as Legal Heir. name of deceased assessee in title of return of income was inadvertent error. In any event, on 30.1.2017, petitioner got himself registered as legal heir / representative of deceased assessee in software system maintained by Authority. Thus, Department was well aware of fact on date that impugned notice dated 31.7.2017 under Section 143(2) was issued, petitioner is 7 of 10 ::: Uploaded on - 20/02/2019 ::: Downloaded on - 21/02/2019 09:48:17 ::: 4. os wp 3563 18.doc legal representative of deceased assessee. Moreover, from record it has been shown to us that for earlier assessment years 2014-15, Revenue has passed assessment order in name of petitioner as legal Representative of deceased assessee Balkrishna Gupta. Therefore, in above facts, there was no justification for Assessing Officer to have issued impugned notice in name of dead person. This would mean absence of notice under Section 143(2) of Act. It is settled position that proceedings for scrutiny assessment under Section 143(3) of Act can be done if notice is issued under Section 143(2) of Act as held by Supreme Court in case of ACIT V/s. Hotel Bluemoon4. Thus, notice in name of wrong person would be no notice and Assessing Officer would not acquire jurisdiction to proceed under Section 143(3) of Act. 8. In fact, Gujrat, Delhi and Madras High Court in cases of Vikram Singh (supra), Rajendra Kumar Sehgal (supra) and Alamelu Veerappan (supra) respectively have 4 (2010) 321 ITR 362 (SC) 8 of 10 ::: Uploaded on - 20/02/2019 ::: Downloaded on - 21/02/2019 09:48:17 ::: 4. os wp 3563 18.doc held that notice issued in name of deceased assessee is null and void. We note fact that above decisions were rendered in context of notices issued for reopening of assessment under Section 148 of Act, however, ratio of aforesaid decisions would equally apply to notice issued under Section 143(2) of Act. This is so as issuing of notice under Section 143(2) of Act which alone gives jurisdiction to Assessing Officer to proceed with scrutiny assessment under Section 143(3) of Act. contention of Revenue that in any view of matter, Section 292B of Act would apply to facts of this case is not acceptable. notice issued under Section 143(2) of Act which gives jurisdiction to complete assessment having been issued in name of dead person is noneset in law as it is not saved by Section 292B of Act. issue of notice under Section 143(2) of Act so as to take up assessment for scrutiny is not procedural but substantive provision. Therefore, where notice is issued in name of wrong person, there would be no issuing of notice as required under Act. In such cases, as in case of Section 148 of Act, issuing of 9 of 10 ::: Uploaded on - 20/02/2019 ::: Downloaded on - 21/02/2019 09:48:17 ::: 4. os wp 3563 18.doc notice in name of wrong person is not procedural and / or clerical error. Therefore, being substantive defect, notice cannot be saved by Section 292B of Act. 9. In above view, impugned notice dated 31.7.2017 and impugned order dated 19.11.2018 are quashed and set aside. Petition allowed. [ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ] 10 of 10 ::: Uploaded on - 20/02/2019 ::: Downloaded on - 21/02/2019 09:48:17 ::: Sumit Balkrishna Gupta v. Asstt. Commissioner of Income-tax, Circle 16(2), Mumbai & Or