The jurisdictional requirement under Section 148 of the Income Tax Act, 1961 must be fulfilled, and there is no statutory obligation for legal heirs to intimate the death of the assessee to the Revenue.

ORDER

Navin Chawla, J. (Oral). - The petition has been heard by way of video conferencing.

1. The present petition has been filed by the petitioner challenging the notice dated 30.03.2019 issued by the respondent under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') and all consequential proceedings emanating therefrom including orders passed by the Assessing Officer.

2. The petitioner is the son of Late Sh. Bhanger Singh Tanwar (hereinafter referred to as the 'Assessee') who died on 14.01.2016.

3. The impugned notice under Section 148 of 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 dated 15.12.2019 was issued to the Assessee. Finally, an assessment order dated 23.12.2019 was passed against the Assessee. Notice dated 01.02.2020 under Section 221(1) and notice dated 05.07.2021 under Section 271(1) (b) of the Act were also issued in the name of the Assessee.

4. The petitioner has challenged the above notices and proceedings on the ground that they were initiated against a person who had died prior to the issuance of notice and therefore, all proceedings are void ab initio.

5. On the other hand, the learned counsel for the respondent submits 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 on 30.10.2019 at the same address and was served by the postal agencies. As no response to the communications was received, a Show Cause Notice dated 15.12.2019 under Section 144 of the Act was issued and sent again at the same address. Assessment order under Section 144 of the Act was thereafter passed on 23.12.2019 making an addition of Rs.48,53,000/ under Section 69A of the Act being unexplained cash deposit. Penalty proceedings under Sections 271(1) (c), 271(1)(b) and 27 1F were also initiated by issuing a Show Cause Notice, again served at the same address. Though, all the correspondences to the Assessee were made through speed post, none of the correspondence prior to the assessment order dated 23.12.2019 was received back through postal agency in the office of the respondent. Only the assessment order was received back with the remark that the addressee had died.

6. The learned counsel for the respondent submits 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 submits 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.

7. We have considered the submissions made by the learned counsels for the parties.

8. The issue of validity of a notice and proceedings held subsequent thereto against a dead person is no longer res integra. This Court in Savita Kapila vs. Assistant Commissioner of Income-Tax, in W.P. (C) No.3258/2020 has held as under:

"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.

24. Further, the fact that an assessment order has been passed and it is open to challenge by way of an appeal, does not denude the petitioner of its right to challenge the notice for assessment if it is without jurisdiction. If the assumption of jurisdiction is wrong, the assessment order passed subsequent would have no legs to stand. If the notice goes,