Notices issued on a deceased person or reopening of assessment of a deceased person are null and void in law, and the requirement of issuing a notice to the correct person is a condition precedent for a notice to be valid in law.

JUDGMENT :

(Kamal Khata, J.)

1. At the request of the parties, this Petition is taken up for final disposal at the admission stage.

2. Being aggrieved by the notice dated 19th March 2022 under section (u/s) 148A(b) of the Income Tax Act, 1961 (‘Act’) the order dated 31st March 2022 u/s 148A(d) and the notice dated 31st March 2022 issued u/s 148 all in the name of Late Smt. Usha B. Sanghvi (‘the deceased assessee’) and the approval granted on 30th March 2022 by the Respondent No.2 to Respondent No.1 to re-open the assessment of the deceased, the Petitioner being the legal heir has filed the present Petition under Article 226 of the Constitution in the circumstances mentioned hereunder:

FACTS:

3. The Petitioner is the legal heir of the deceased assessee who expired on 4th December 2019 at Gandhinagar. It is stated that the deceased assessee had filed her return of income u/s 139(1) of the Act on 5th June 2018 declaring her total income of Rs.1,94,28,890/- earned from capital gains and income from other sources as the deceased was an investor in shares.

4. It is stated that the deceased and her family had applied for change of address in PAN as well as transfer of jurisdiction on account of shift in residence from Mumbai to Gandhinagar by her letter dated 9th January 2019 addressed to (i) Asst Commissioner of Income Tax Circle – 27(3) Mumbai (Respondent No.1), (ii) Additional/Joint Commissioner of Income Tax, Circle – 27(3), (iii) Principal Commissioner of Income-tax 27 (Respondent No.2), (iv) Commissioner of Income-Tax, Gandhinagar Circle and (v) Deputy Commissioner of Income-Tax Gandhinagar Circle. It is stated that whereas the file of the deceased was not transferred, files of other family members were transferred to Gandhinagar for the reasons best known to the Respondents.

5. Upon death of the deceased, Petitioner’s request for being registered as the legal heir dated 11th April 2020 sent along with copy of (i) the death certificate, (ii) the Will, and (iii) PAN Card was approved on 13th April 2020. On 20th July 2020, as the legal heir of the deceased, the Petitioner, filed the return of income of the deceased assessee for AY 2020-21. On 4th February 2021 the return of income was processed u/s 143(1) of the Act with ‘no demand’.

6. Since the PAN of the deceased was not cancelled, emails dated 13th December and 15th December 2021 were sent to the Respondent once again and a grievance was also filed on the portal on 15th December 2021 intimating about the death of the deceased. On 29th January 2022, the Respondents reverted on the portal seeking (i) indemnity bond (ii) original pan card to be deleted (iii) legal heir documents and other relevant documents. Thus, the Respondents were aware of the death of the assessee Late Smt. Usha B Sanghvi.

7. The learned counsel for the Petitioner submitted that inspite of being aware, the Respondent No.1 on 19th March 2022 issued notice under section 148A(b) of the Act in the name of the deceased. He pointed out that though the notice was dated 19th March 2022 it could be evinced that it was signed on 26th March 2022 and the deceased assessee was asked to reply by 28th March 2022; consequently, less than seven days’ time was given in contravention to the provisions of section 148A of the Act. He submitted that the Petitioner filed a reply on 27th March 2022 giving all reasons and details to substantiate that there was no case to issue notice. On 31st March 2022 the Respondent No. 1 passed an order disposing off the objections u/s 148A(d) of the Act with the prior approval of Respondent No. 2 taken on 30th March 2022. On the same day a notice u/s 148 was issued in the name of the deceased assessee requiring her to file return of income within 30 days. On 8th April 2022 the Petitioner as the legal heir, filed the return of income under protest and also sought copy of the reasons recorded for reopening the assessment. On 28th April 2022 the Respondent No.1 reverted reiterating the contents of