The impugned assessment order made in the name of a dead person is a curable defect under Section 292-B of the Income Tax Act, but can be set aside for the limited purpose of facilitating the respondent to redo the assessment in the name of the legal heir.

JUDGMENT :

Prayer: Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari, calling for the records pertaining to the order of the respondent dated 28.12.2018 Order No. ITBA/AST/S/143(3)/2018-19/1014624990(1) received on 28.12.2018 for assessment year 2016-2017 and quash the same.

1. P.J.Rishikesh, learned counsel on record for writ petitioner and Mr.J.Narayanaswamy, learned Senior Standing Counsel (Income Tax) on behalf of sole respondent are before this Court.

2. Sole respondent has filed a counter-affidavit dated 17.6.2019 and therefore, pleadings are complete.

3. Be that as it may, with consent of learned counsel on both sides, main writ petition itself is taken up, heard out and is being disposed of.

4. The scope of this entire writ petition is very narrow and in the light of submissions made in the Court in the hearing, it now turns on a narrower compass.

5. An assessment order made by respondent being 'assessment order dated 28.12.2018 bearing Order No.ITBA/AST/S/ 143(3)/2018-19/1014624990(1) pertaining to PAN No.ABNPT3323R for the assessment year 2016-2017' (hereinafter referred to as 'impugned assessment order' for brevity) has been called in question in the instant writ petition.

6. Challenge to impugned assessment order is predicated on the sole ground that it has been made in the name of a dead person. There is no disputation or disagreement that impugned order has been made in the name of one Kanniappan Thiruvengadam and that said Kanniappan Thiruvengadam died on 11.10.2015. To be noted, impugned assessment order is dated 28.12.2018.

7. This Court is informed without any disputation or disagreement that writ petitioner before this Court i.e., T.Palani is aforementioned Kanniappan Thiruvengadam's son and legal heir.

8. Learned counsel for writ petitioner submits that returns for assessment year pertaining to impugned assessment order namely, assessment year 2016-2017 was filed by writ petitioner on 30.9.2016, post demise of assessee. After returns were filed on 30.9.2016, the Income Tax Department had sent a notice under Section 143(2) of Income Tax Act, 1962 (hereinafter 'IT Act'). What is of utmost significance is, this notice sent by the IT Department under Section 143(2) of IT Act, pursuant to the returns filed for assessment year 2016-2017 is addressed to the writ petitioner describing him as the legal heir of late Kanniappan Thiruvengadam, but ultimately, when the assessment was carried to its logical end and when it culminated in the impugned assessment order, the same has been issued in the name of deceased Kanniappan Thiruvengadam. On this basis, it is submitted by learned counsel for writ petitioner that the impugned assessment order is a nullity. In other words, the entire writ petition is predicated on the pivotal and primordial ground that impugned assessment order has been made in the name of a dead person and is therefore a nullity.

9. In response to the aforesaid challenge to the impugned assessment order, learned Revenue Counsel adverting to the aforementioned counter-affidavit submitted that the response of the respondent is of three fold and they are as follows:

(a) Impugned assessment order is software generated and the respondent cannot change certain details which appear above the caption 'assessment order'.

(b) Impugned assessment order being issued in the name of a dead person or in other words in the name of an assessee post demise, is only a curable defect and the same is curable under Section 292-B of IT Act.

(c) Writ petitioner has alternate remedy, as a statutory appeal to the Commissioner of Income Tax Appeals (hereinafter 'CIT Appeals' for brevity) will lie under Section 246-A of the IT Act.

10. This Court has carefully considered the rival submissions.

11. The last of the threefold submissions made by Revenue Counsel, namely, alternate remedy pales into insignificance in the light of the trajectory the writ petition has taken at this stage. Wh