SUDHA PRASAD Vs. CHIEF COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) HEARD both sides. The petitioner, a legal representative of on, deceased B.B. Prasad is before us. Premises of B.B. Prasad was searched on 17 -9 -1993. B.B. Prasad died on 6 -4 -2001. On 6 -5 -2002, notice was issued to B.B. Prasad asking him to file a return under the ;;;;;;;;;;;;;;;;;;;;;;;;. Since no return was filed, a notice under section 142 of the Act was issued to him on 13 -6 -2002. A notice was again issued to B.B. Prasad on 20 -6 -2002. The assessment was completed under Annexure 8, which was followed by a demand notice, Annexure 8/1. At this stage, the widow of B.B. Prasad has. come forward with this Writ Petition challenging the order of assessment Annexure 8 and the demand notice Annexure 8/1 on the ground that order of assessment was a nullity. It has been passed against a dead person and hence the demand was unenforceable,

(2.) ON the other hand, it has been submitted by counsel for the department that the factum of death of B.B. Prasad was never brought to the notice, of the concerned assessing authority or superior authority and therefore, the assessment was completed against B.B. Prasad,

(3.) IT cannot but be said that a proceeding against a deceased person, culminating in an order of assessment, has to be regarded as a nullity in the sense that it was passed against a dead person. But in this case, we a re inclined to accept the submission of the revenue that the assessment was completed against B.B. Prasad only in view of the fact that the authority concerned was not made aware of the death of B.B. Prasad. But since the proceeding had not been initiated by a notice while B.B. Prasad was alive, the department could have completed the proceedings only after issuance of notice to the legal representatives of B.B. Prasad. Since that was not clone, on that short ground the order of assessment, Annexure 8 and the demand notice, Annexure 8/1 require to be set aside.