Notices issued under section 148 of the Income Tax Act to deceased persons are invalid, necessitating issuance to legal representatives for valid assessment proceedings.

JUDGMENT :

BHARGAV D. KARIA, J.

1. Heard learned advocate Mr. R.G. Chaudhary with learned advocate Mr. Jasmin Vaddoriya for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent.

2. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule on behalf of the respondent.

3. Having regard to the controversy involved which is in narrow compass, with the consent of the learned advocates for the parties, the matter is taken up for hearing.

4. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs:

“(B) This Hon’ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, quashing and setting aside the notices issued by the Income Tax Department on the address of the petitioner.

(C) This Hon’ble Court be pleased to direct the Income Tax Department not to issue demand notices in future on the address of the petitioner.”

5. Brief facts of the case are that the petitioner is grandson of late Karsanbhai Gagajibhai Padashala who expired on 13.03.2019.

6. Petitioner is residing at Una, District: Gir Somnath whereas his grandfather Late Karsanbhai was residing at Village: Khilavad, Tal. Gir-Gadhada, District: Gir-Somnath.

7. The respondent-Assessing Officer issued a notice under section 148 of the Income Tax Act,1961 [for short ‘the Act’] on the basis of the information that late grandfather of the petitioner deposited cash in State Bank of India of Rs. 14,50,000/- and had earned interest income of Rs. 31,839/- from Veraval Mercantile Co-operative Bank Ltd. during the Financial Year 2011-12 relevant to Assessment Year 2012-13 and he did not file return of income disclosing cash deposited in the bank account which had remained unexplained and on the basis of the same, notice dated 27.03.2019 was issued in the name of late grandfather of the assessee.

8. As the notice was issued at Village: Khilavad, no one could file any reply in response to the notice 02.08.2019 and subsequent notice dated 29.08.2019 issued under section 142(1) of the Act. Further, final show-cause notice dated 24.10.2019 and thereafter, assessment order dated 29.11.2019 was passed under section 144 read with section 147 of the Act assessing the total income of Rs. 17,31,839/-. A demand notice under section 156 of the Act was issued raising a demand of Rs. 9,86,200/-. Thereafter, notice under section 274 read with section 271F of the Act was also issued to levy the penalty.

9. Order under section 271F of the Act was passed on 03.01.2022 for levying the penalty of Rs. 5,000/-.

10. The petitioner, by letter dated 09.01.2020, informed the respondent- Assessing Officer that his grandfather had expired on 13.03.2019 prior to the issuance of notice for reopening in his name. It was further pointed out by learned advocate for the petitioner that no notice or any letter was received after death of his grandfather and requested the respondent-Assessing Officer to withdraw the assessment order passed by him along with letter. The petitioner also filed the death certificate of his grandfather.

11. Learned advocate Mr. R.G. Chaudhary for the petitioner submitted that issuance of notice for reopening under section 148 of the Act is bad in law as the same is issued in name of the deceased person and therefore, the consequential assessment order, the demand raised and the penalty order are required to be quashed and set aside. In respect of his submissions reliance was placed on the decision of this Court in case of Bhupendra Bhikhalal Desai vs. ITO, (2021) 130 Taxmann.com 196 and decision of Madras High Court in case of Estate of Late Rangalal Jajodia vs. Commissioner of Income Tax, Madras, (1971) 79 ITR 505.

12. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent-Assessing Officer submitted that the petitioner ought to have challenged the impugned ass