IN HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 12980 of 2019 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/- and HONOURABLE MR.JUSTICE A.C. RAO Sd/- 1 Whether Reporters of Local Papers may be allowed to NO see judgment ? 2 To be referred to Reporter or not ? NO 3 Whether their Lordships wish to see fair copy of NO judgment ? 4 Whether this case involves substantial question of law NO as to interpretation of Constitution of India or any order made thereunder ? PRANAV RAVINDRABHAI SHAH Versus INCOME TAX OFFICER, WARD 3 (3)(5) Appearance: MR SUDHIR M MEHTA(2058) for Petitioner(s) No. 1 MS SHAILEE S MEHTA(5873) for Petitioner(s) No. 1 MRS MAUNA M BHATT(174) for Respondent(s) No. 1 CORAM:HONOURABLE MR.JUSTICE J.B.PARDIWALA and HONOURABLE MR.JUSTICE A.C. RAO Date : 06/08/2019 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE A.C. RAO) Page 1 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT 1.00. RULE, returnable forthwith. Ms.Mauna Bhatt, learned Senior Standing Counsel appearing for revenue waives service of notice of rule on behalf of respondents. 1.01. In facts and circumstances of case and with consent of learned counsel appearing for respective parties, present petition is taken up for final hearing today. 2.00. By this writ petition under Article 226 of Constitution of India, petitioner has prayed for following main reliefs : 8(B). Your Lordships may be pleased to issue writ of certiorari or writ in nature of certiorari or any other appropriate writ, order or direction for quashing and setting aside impugned notice dated 31.03.2019 u/s.148 of Income Tax Act, 1961 at ANNEXURE-A and order dated 02.07.2019 disposing objections at ANNEXURE-D. (C). Your Lordships may be pleased to issue writ of certiorari or writ in nature of certiorari or any other appropriate writ, order or direction Page 2 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT asking respondent not to proceed further in pursuance of impugned notice dated 31.03.2019 U/S. 148 OF Income Tax Act, 1961 at ANNEXURE-A and order dated 02.07.2019 disposing of objections at ANNEXURE-D. 3.00. learned counsel for petitioner pointed out that impugned notice under Section 148 of Income Tax Act, 1961 came to be issued against dead person. petitioner, who happens to be legal heir of assessee - late Vidhi Pranav Shah, pointed out this fact to officer concerned. It is submitted that despite same, officer intends to proceed with proceedings pursuant to notice issued under Section 148 of Act. learned counsel for has placed reliance on decision of this Court in case of Chandreshbhai Jayantibhai Patel vs. Income-tax Officer [(2019) 101 taxmann.com 362 (Gujarat)]. Therefore, this Court on 29/7/2019, issued notice for final disposal, making it returnable today. 4.00. In response to notice issued by this Court, Ms. Mauna Bhatt, learned Senior Standing Counsel has appeared on behalf of revenue. 5.00. issue raised in this writ petition is very limited and no longer res integra. It appears that petitioner is heir and legal representative of late Vidhi Pranav Shah. Late Page 3 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT Vidhi Pranav Shah was assessed in office of Income Tax Department. It is case of revenue that income for A.Y. 2012-13 has escaped assessment and hence directed to file return of income. Thereafter respondent authority also issued reminder letter dated 13/5/2019 with regard to notice issued u/s. 148 of Act in name of deceased assessee stating that income had escaped assessment for A.Y. 2012-13. petitioner raised objections on 13/6/2017 through Chartered Accountant, through e-mail stating that Vidhi Pranav Shah expired on 14/10/2016 and notice u/s.148 of Act has been issued on 31/3/2019 upon dead person. It was contended that reassessment proceedings against deceased person cannot be initiated. Reliance was also placed on decision of this Court in case of Chandreshbhai Jayantibhai Patel Versus ITO, Special Civil Application No.15172 of 2018 decided on 10/12/2018, reported in (2019) 101 taxmann.com 362 (Gujarat). In such circumstances, Ms. Mauna Bhatt, learned senior standing counsel for revenue with her usual fairness submitted that there is no escape from fact that department issued notice to dead person. However, Ms. Bhatt submitted by placing reliance on Section 292B of Act that impugned notice would not become nullity or invalid merely by reason of some mistake/defect. In such circumstances, according to Ms. Bhatt, if notice under Section 148 of Act is issued to dead person instead of upon his/her legal representatives, same shall be valid in view of provisions of Section 292B of act. Ms. Bhatt Page 4 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT further placed reliance on Section 159(2)(b) and Section 159(3) of Act. She submitted that in view of Section 159(2) (b) and Section 159(3) of Act, legal representative of deceased shall for all practical purposes be deemed to be assessee. 6.00. Having heard learned counsel appearing for parties and having gone through materials on record, only question that falls for our consideration is whether notice issued by department under Section 148 of Act to dead person could be termed valid notice. 7.00. Both submissions of Ms. Raval, learned senior standing counsel appearing for revenue are covered by decision of this Court in case of Chandreshbhai Jayantibhai Patel vs. Income-tax Officer [(2019) 101 taxmann.com 362 (Gujarat)]. We may quote relevant observations : 6.1. Reference was made to decision of Supreme Court in case of Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124, for proposition that death of person liable to render account for property received by him does not affect liability of his estate. It was submitted that therefore, even after his death, deceased Jayantibhai does not cease to be assessee and consequently, legal representative is responsible for filing return of income and answering to notice. It was Page 5 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT submitted that Madras High Court in case of Alamelu Veerappan v. Income Tax Officer, Noncorporate Ward- 2(2), Chennai (supra), on which reliance has been placed on behalf of petitioner, does not refer to section 292B of Act and, therefore, said decision would be not applicable to facts of present case. It was submitted that in this case, petitioner had knowledge of proceedings and has responded to same as legal representative of deceased and, therefore, procedural defect which is otherwise curable may be permitted to be cured. 6.2. Reference was made to section 2(29) of Act, which says that legal representative has meaning assigned to it in clause (11) of section 2 of Code of Civil Procedure, 1908. 6.3. learned counsel further invited attention of court to provisions of section 292B of Act, which inter alia provide that no notice, summons or other proceeding, issued or taken in pursuance of any of provisions of Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such notice, summons or other proceeding if such notice, summons or other proceeding is, in substance and effect, in conformity with or according to intent and purpose of Act. It was submitted that in Page 6 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT light of provisions of section 292B of Act, defect in notice by issuing same to dead person would not render notice invalid, inasmuch as it is purely procedural lapse. 6.4. Reliance was placed upon decision of Delhi High Court in case of Sky Light Hospitality LLP v. Assistant Commissioner of Income Tax, (2018) 405 ITR 296 (Delhi), wherein court has held thus: 17. In context of present writ petition, aforesaid ratio is complete answer to contention raised on validity of notice under section 147/148 of Act as it was addressed to erstwhile company and not to limited liability partnership. There was no doubt and debate that notice was meant for petitioner and no one else. Legal error and mistake was made in addressing notice. Noticeably, appellant having received said notice, had filed without prejudice reply/letter dated April 11, 2017. They had objected to notice being issued in name of company, which had ceased to exist. However, reading of said letter indicates that they had understood and were aware, that notice was for them. It was replied and dealt with by them. fact that notice was Page 7 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT addressed to M/s Sky Light Hospitality Pvt. Ltd., company which had been dissolved, was error and technical lapse on part of respondent. No prejudice was caused. 6.5. It was pointed out that above decision of Delhi High Court came to be challenged before Supreme Court in Sky Light Hospitality LLP v. Assistant Commissioner of Income Tax, [2018] 92 Taxman.com 93 (SC), which dismissed special leave petition holding that wrong name given in notice was merely clerical error which could be corrected under section 292B of Act. 6.6. Reliance was also placed upon decision of Supreme Court in case of Commissioner of Income Tax, Shillong v. Jai Prakash Singh, [1996] 219 ITR 737, wherein assessee did not file returns for three assessment years and died in April 1967, leaving behind him, in all, ten legal heirs. eldest son Jai Prakash Singh filed returns for three assessment years. Such returns were signed by him alone and not by other legal representatives. Scrutiny assessment came to be carried out by Income Tax Officer, during course of which, notices under section 142(1) of Act came to be issued to Jai Prakash to appear and produce documents, accounts and other material, who complied with same and did not raise any objection that notices must be issued to other Page 8 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT legal representatives of deceased. Assessment orders were made in name of all ten legal representatives who were described as legal representatives of deceased. Appeals were filed by Jai Prakash contending that assessments were illegal and invalid as no notice had been issued to all legal representatives of deceased. court placed reliance upon decision of Bombay High Court in Maharaja of Patiala v. Commissioner of Income Tax (Central), Bombay, (1943) 11 ITR 201, for proposition that assessment made without strictly complying with section 24-B (section 159 in present Act) is not void or illegal and that any infractions in that behalf can be waived by assessee. court also placed reliance upon its earlier decision in Estate of Late Rangalal Jajodia v. Commissioner of Income Tax, Madras, (1971) 79 ITR 505 (SC), for proposition that omission to serve or any defect in service of notices provided by procedural provisions does not efface or erase liability to pay tax where such liability is created by distinct substantive provisions (charging sections). Any such omission or defect may render order made irregular depending upon nature of provision not complied with, but certainly not void or illegal. Following said decisions, court held that in facts and circumstances of case, orders of assessment made by Income Tax Officer without notice to all legal representatives are not null and void in law, but are Page 9 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT merely irregular/defective proceedings which can be set right by remitting matters to Income Tax Officer for making fresh assessments with notice to all legal representatives. 6.7. Reliance was placed upon decision of this court in case of Commissioner of Income Tax v. Sumantbhai C. Munshaw, (1981) 128 ITR 142, wherein though notice was issued to deceased person, proceeding was continued against legal representative who participated in proceeding and also filed return of income without raising any objection as to validity of assessment proceedings. legal representative had, therefore, submitted to jurisdiction of Assessing Officer. court held that if legal representative is present before taxing authority in some capacity or voluntarily appears in proceeding without service of notice or upon service of notice not addressed to him but to deceased assessee and does not object to continuance of proceeding against dead person and is heard by Income Tax Officer in regard to tax liability of deceased and invites assessment on merits, such legal representative must be taken to have exercised option of abandoning technical plea that proceeding has not been continued against him, although in substance and reality, it has been so continued. Page 10 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT 6.8. learned counsel submitted that issuance of notice in name of deceased being procedural defect, can be cured under section 292B of Act and that on account of such technical defect, notice is not void. Moreover, petitioner having responded to notice under section 148 of Act, Assessing Officer is justified in continuing proceedings against him. It was, accordingly, urged that petition being devoid of merits, deserve to be dismissed. 7. In backdrop of rival submissions, facts as emerging from record of case may be adverted to. impugned notice dated 28.03.2018 is issued to Shri Jayantilal Harilal Patel, father of petitioner, seeking to reopen assessment for assessment year 2011-12 under section 148 of Income Tax Act, 1961. By letter dated 27.04.2018 addressed to Income Tax Officer, petitioner informed him that his father Shri Jayantilal Harilal Patel has passed away on 24.06.2015, enclosing therewith death certificate and further being his son and in his capacity as legal heir, requested him to drop proceedings. Thereafter, another notice dated 10.07.2018 came to be issued under sub-section (1) of section 142 of Act to Shri Jayantilal Harilal Patel calling upon him to furnish details mentioned therein. In annexure to said notice, assessee was Page 11 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT called upon to show cause as to why penalty proceedings under section 217F of Act should not be initiated in his case as he had not furnished return of income in response to notice under section 148 and stating that this may be treated as notice under section 142(1) read with section 129 of Income Tax Act, 1961. 8. petitioner addressed letter dated 02.08.2018 to Income Tax Officer objecting to notices issued under section 148 as well as under section 142(1) of Act and drew his attention to earlier letter dated 27.04.2018 informing him about death of his father and requesting him to drop proceedings. attention of Income Tax Officer was further invited to provisions of section 159 of Act, to submit that proceedings are required to be initiated against legal representative and not against deceased and, therefore, notices issued to dead person are invalid. Reliance was placed upon decision of this court in Jaydeep Kumar Dhirajlal Thakkar v. Income Tax Officer, (2018) 401 ITR 302 (Guj.) and Vipin Walia v. Income Tax Officer, (2016) 381 ITR 19 (Delhi). 9. Thereafter, by notice dated 03.08.2018 issued under section 142(1) of Act, respondent called upon petitioner as legal heir of deceased Shri Jayantilal Harilal Patel to furnish Page 12 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT documents mentioned therein. In annexure thereto, petitioner is called upon to show cause as to why penalty proceedings under section 217F of Act should not be initiated in his case as he had not furnished return of income in response to notice under section 148 of Act and stating that this may be treated as notice under section 142(1) read with section 129 of Income Tax Act, 1961. 10. By order dated 14.08.2018, respondent disposed of objections raised by petitioner stating that notice under section 148 of Act was issued in name of deceased as department was not aware of death of assessee. It is only when legal heir Shri Chandreshbhai Jayantilal Patel (the petitioner herein) filed letter dated 27.04.2018 along with copy of assessee s death certificate, that this fact came to notice of that office. It is stated that since assessee s son legal heir had received notice (stated to have been received through neighbour) and participated in proceedings; defect in issue of notice is automatically cured. Reliance was placed upon decision of Madhya Pradesh High Court in case of Kausalyabai v. Commissioner of Income Tax, 238 ITR 1008 (MP), wherein after death of assessee, notice was issued in name of person who was dead. court observed that Page 13 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT widow of such person participated in assessment proceedings and hence, defect in notice stood automatically cured. It is further stated in order disposing of objections that even if notice dated 28.03.2018 is issued defectively in name of deceased assessee, then also, as per provisions of section 292B of Act, same cannot be held to be invalid. 11. Insofar as contention raised by petitioner based on section 159 of Act is concerned, Assessing Officer observed that in this case, assessee (the petitioner) had introduced himself as son of deceased assessee and as legal heir and has produced death certificate in response to notice issued under section 148 of Act. Therefore, as legal heir, upon being served with notice under section 148, has participated in proceedings, reassessment proceedings initiated are legal and valid. Reliance has been placed upon decision of Madras High Court in case of V. Ramanathan v. Commissioner of Income Tax, (1963) 49 ITR 881 (Madras). It is further stated therein that it is not in dispute that Shri Chandreshbhai J. Patel is legal heir of deceased assessee; therefore, proceedings initiated against legal representative/legal heir are valid and legal. Page 14 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT 12. In backdrop of aforesaid facts, it is admitted position that notice under section 148 of Act was issued to dead person. petitioner being heir and legal representative of deceased, upon receipt of notice, immediately raised objection against validity of impugned notice and did not submit to jurisdiction of Assessing Officer by filing return of income, but kept on objecting to continuation of assessment proceedings pursuant to impugned notice. Assessing Officer, however, instead of taking corrective steps under section 292B of Act and issuing notice to heirs and legal representatives, insisted on continuing with proceedings pursuant to impugned notice which was issued in name of dead person. Since strong reliance has been placed by learned counsel for respondent on provisions of section 2(7) and 2(29) read with sections 159 and 292B of Act, reference may be made to said provisions, which read as under: Section 2(7) assessee means person by whom any tax or any other sum of money is payable under this Act, and includes - (a) every person in respect of whom any proceeding under Act has been taken for assessment of his income or of income of any other person in respect of which he is Page 15 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT assessable, or of loss sustained by him or by such other person, or of amount of refund due to him or to such other person; (b) every person who is deemed to be assessee under any provision of this Act; (c) every person who is deemed to be assessee in default under any provision of this Act; Section 2(29) legal representative has meaning assigned to it in clause (11) of section 2 of Code of Civil Procedure, 1908; 159. Legal representatives. - (1) Where person dies, his legal representative shall be liable to pay any sum which deceased would have been liable to pay if he had not died, in like manner and to same extent as deceased. (2) For purpose of making assessment (including assessment, reassessment or recomputation under section 147) of income of deceased and for purpose of levying any sum in hands of legal representative in accordance with Page 16 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT provisions of subsection (1).- (a) any proceeding taken against deceased before his death shall be deemed to have been taken against legal representative and may be continued against legal representative from stage at which it stood on date of death of deceased; (b) any proceeding which could have been taken against deceased if he had survived, may be taken against legal representative; and (c) all provisions of this Act shall apply accordingly. (3) legal representative of deceased shall, for purposes of this Act, be deemed to be assessee. (4) Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains undercharged, he creates charge on or disposes of or parts with any assets of estate of deceased, which are in, or may come into, his Page 17 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT possession, but such liability shall be limited to value of asset so charged, disposed of, or parted with. (5) provisions of sub-section (2) of section 161, section 162 and section 167, shall, so far as may be and to extent to which they are not inconsistent with provisions of this section, apply in relation to legal representative. (6) liability of legal representative under this section shall, subject to provisions of subsection (4) and subsection (5), be limited to extent to which estate is capable of meeting liability. 292B. Return of income, etc., not to be invalid on certain grounds. - No return of income, assessment, notice, summons or other proceeding furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other Page 18 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT proceeding is in substance and effect in conformity with or according to intent and purpose of this Act. 13. Thus, expression assessee includes every person who is deemed to be assessee under any provision of Act. Sub- section (3) of section 159 of Act, postulates that legal representative of deceased shall, for purposes of Act, be deemed to be assessee. Subsection (2) of section 159 of Act says that for purpose of making assessment (including assessment, reassessment or recomputation under section 147) of income of deceased and for purpose of levying any sum in hands of legal representative in accordance with provisions of sub-section (1), - (a) any proceeding taken against deceased before his death shall be deemed to have been taken against legal representative and may be continued against legal representative from stage at which it stood on date of death of deceased; (b) any proceeding which could have been taken against deceased if he had Page 19 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT survived, may be taken against legal representative; and (c) all provisions of Act shall apply accordingly. 14. Thus, clause (a) of sub-section (2) of section 159 of Act provides for eventuality where proceeding has already been initiated against deceased before his death, in which case such proceeding shall be deemed to have been taken against legal representative and may be continued against legal representative from stage at which it stood on date of death of deceased. In present case, proceeding under section 147 of Act had not been initiated against deceased before his death, and hence, clause (a) would not be applicable in facts of this case. 15. Clause (b) of sub-section (2) of section 159 of Act provides that any proceeding which could have been taken against deceased if he had survived may be taken against legal representative. present case would, therefore, fall within ambit of section 159(2)(b) of Act and, hence, proceeding can be taken against legal representative. Now, it cannot be gainsaid Page 20 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT that proceeding under section 147 of Act of reopening assessment is initiated by issuance of notice under section 148 of Act, and as necessary corollary, therefore, for taking proceeding under that section against legal representative, necessary notice under section 148 of Act would be required to be issued to him. In present case, impugned notice under section 148 of Act has been issued against deceased assessee. In opinion of this court, since this is not case falling under clause (a) of sub-section (2) of section 159 of Act, proceeding pursuant to notice under section 148 of Act issued to dead person, cannot be continued against legal representative. 16. On behalf of revenue, it has been contended that issuance of notice to dead assessee is merely technical defect which could be corrected under section 292B of Act. Reliance has been placed on above referred decisions of Supreme Court as well as High Courts for contending that proceedings would not be null and void merely because notice has been issued against dead person as legal representative had received notice and has objected to validity of notice Page 21 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT and further continuation of proceedings. In opinion of this court, here lies distinction between those cases and present case. In relied upon cases, legal representative, in response to impugned notice, filed return of income and participated in proceeding and then raised objection to validity of proceeding and, therefore, court held that this was case of waiver and that technical defect can be waived; whereas in this case, right from inception petitioner has objected to validity of notice and thereafter to continuation of proceeding and has at no point of time participated in proceeding by filing income tax return in response to notice issued under section 148 of Act. Had petitioner responded to notice by filing return of income, he could have been said to have participated in proceedings, however, merely because petitioner has informed Assessing Officer about death of assessee and asked him to drop proceedings, it cannot, by any stretch of imagination, be construed as petitioner having participated in proceedings. 17. Insofar as reliance placed upon section 292B of Act is concerned, said section, inter alia, provides that no notice issued in Page 22 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT pursuance of any of provisions of Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such notice if such notice, summons is in substance and effect in conformity with or according to intent and purpose of Act. 18. question that therefore arises for consideration is whether notice under section 148 of Act issued against deceased assessee can be said to be in conformity with or according to intent and purposes of Act. In this regard, it may be noted that notice under section 148 of Act is jurisdictional notice, and existence of valid notice under section 148 is condition precedent for exercise of jurisdiction by Assessing Officer to assess or reassess under section 147 of Act. want of valid notice affects jurisdiction of Assessing Officer to proceed with assessment and thus, affects validity of proceedings for assessment or reassessment. notice issued under section 148 of Act against dead person is invalid, unless legal representative submits to jurisdiction of Assessing Officer without raising any objection. Therefore, where legal representative does not waive his right to Page 23 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT notice under section 148 of Act, it cannot be said that notice issued against dead person is in conformity with or according to intent and purpose of Act which requires issuance of notice to assessee, whereupon Assessing Officer assumes jurisdiction under section 147 of Act and consequently, provisions of section 292B of Act would not be attracted. In opinion of this court, decision of this court in case of Rasid Lala v. Income Tax Officer, Ward-1(3)(6) (supra) would be squarely applicable to facts of present case. Therefore, in view of provisions of section 159(2)(b) of Act, it is permissible for Assessing Officer to issue fresh notice under section 148 of Act against legal representative, provided that same is not barred by limitation; he, however, cannot continue proceedings on basis of invalid notice issued under section 148 of Act to dead assessee. 19. In facts of present case, as noticed hereinabove, notice under section 148 of Act, which is jurisdictional notice, has been issued to dead person. Upon receipt of such notice, legal representative has raised objection to validity of such notice and has not complied with same. Page 24 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 C/SCA/12980/2019 JUDGMENT legal representative not having waived requirement of notice under section 148 of Act and not having submitted to jurisdiction of Assessing Officer pursuant to impugned notice, provisions of section 292B of Act would not be attracted and hence, notice under section 148 of Act has to be treated as invalid. In absence of valid notice, Assessing Officer has no authority to assume jurisdiction under section 147 of Act and, hence, continuation of proceeding under section 147 of Act pursuant to such invalid notice, is without authority of law. impugned notice as well as proceedings taken pursuant thereto, therefore, cannot be sustained. 8.00. For foregoing reasons, writ petition succeeds and is accordingly allowed. impugned notice dated 31/3/2019 issued by respondent department under Section 148 of Act, 1961, impugned order dated 2/7/2019 disposing of objections, as well as all proceedings pursuant thereto are hereby quashed and set aside. Rule is made absolute accordingly. No order as to costs. Sd/- (J. B. PARDIWALA, J) Sd/- (A. C. RAO, J) RAFIK.. Page 25 of 25 Downloaded on : Thu Sep 26 14:44:37 IST 2019 Pranav Ravindrabhai Shah v. Income-tax Officer, Ward-3(3)(5)