MEET LALWANI Vs. INCOME TAX OFFICER WARD

JUDGEMENT

(1.) The present petition under Article 226 of the Constitution of India challenges the notice under Sec. 148 of the Income Tax Act, 1961(referred to as 'the Act of 1961' hereinafter) for the assessment year 2018-19 dtd. 31/3/2022 passed in case No. ITBA/AST/S/148_12021-22/1042404876(1) [Annexure P-3] as well as order u/S 148A(d) of the Act of 1961 dtd. 31/3/2022[Annexure P-4] for the assessment year 2018-19.

(2.) Brief facts of the case are that petitioner who was the legal heir of the original assessee received a notice DIN NO. 1041169255(1) dtd. 21/3/2022 from the respondent no.1 under Sec. 148A(b) of the Act of 1961 seeking reopening of assessment of the assessee as income chargeable to tax for the Assessment Year 2018-19 has escaped assessment within the meaning of Sec. 147 of the Act of 1961 and the petitioner is required to show cause as to why a notice u/S 148 of the Act of 1961 should not be issued. The petitioner filed a reply to the said notice through his Chartered Accountant informing that the original assessee Mrs. Amita Lalwani had expired on 7/7/2021 and also annexed a copy of the death certificate. Subsequently, notice u/S 148 of the Act of 1961 dtd. 31/3/2022 was issued again in the name of original assessee who is dead despite informing about her death alongwith her death certificate. In the said notice, it was stated that certain income of the deceased assessee had escaped assessment for the Assessment Year 2018-19 and the respondent proposed to re-assess the income for the said assessment year. The said notice was accompanied by an order under Clause (d) of Sec. 148A of the Act of 1961 where reference of petitioner as legal heir of the deceased assessee has been given. It has been mentioned in the order that assesssee has made investment of Rs.47,32,641.00 to purchase two immovable properties during the period under consideration. For verification of the above investment, the respondent has taken accord of the competent authority and issued show cause notice u/S 148A(b) of the Act of 1961. In response to the said show cause notice, the legal heir of the assessee has filed death certificate of the original assessee. However, the legal heir of the original assessee has not given sufficient explanation about the investment made to purchase the immovable property and also mentioned that since the original assessee has died, therefore, notice is issued to her son. In the absence of any justifiable explanation, regarding investment in the immovable properties, it has been held that assessee has not disclosed the income of Rs.47,32,641.00 for the A.Y. 2018-19 which is also chargeable to tax and the same has escaped the assessment. Hence the present petition is filed.

(3.) Learned counsel for the petitioner submitted that an essential condition to issue notice u/S 148 of the Act of 1961 is that the notice be issued to the person who is alive and the same cannot be issued to a dead person. Since issuance of notice u/S 148 of the Act of 1961 is the foundation for reopening of an assessment, then such notice should ought to have been issued in the name of correct person which is a condition precedent to the impugned notice being valid in law. In support of his contention, learned counsel for the petitioner has placed reliance on the judgment of High Court of Gujarat in the case of Chandreshbhai Jayantibhai Patel Vs. The Income Tax Officer reported in (2019) 413 ITR 276 wherein it has been held as under: