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Vipin Walia Vs. Income Tax Officer
April, 05th 2016
+              W.P.(C) 8273/2015 & CM No. 17434/2015 (for stay)

       VIPIN WALIA                                        ..... Petitioner
                          Through: Mr. S. Krishnan, Advocate.


       INCOME TAX OFFICER                         ..... Respondent
                    Through: Mr. Zoheb Hossain, Advocate.


%                         15.02.2016

Dr. S. Muralidhar, J.:
1. There are certain instances where the facts speak for themselves and this
is one such.

2. A notice under Section 148 of the Income Tax Act, 1961 (`Act') dated
27th March 2015 was addressed by the Income Tax Officer (ITO) of Ward-
72(3), Delhi to one Mr. Inder Pal Singh Walia, 128 RPS, DDA Flats, Sheikh
Sarai Phase-I, Delhi seeking to reopen the assessment for Assessment Year
(AY) 2008-09.

W.P.(C) No. 8273/2015                                              Page 1 of 8
3. The above notice was returned unserved to the Department with the postal
authorities endorsing on it the remarks "Addressee expired". That was a
correct statement by the postal authority since indeed Mr. Inder Pal Singh
Walia had expired on 14th March 2015. In other words, the notice dated 27th
March 2015 had been addressed to a dead person.

4. The ITO, obviously unmindful of the requirement of law as far as Section
147 of the Act was concerned, issued a letter dated 15th June 2015 to the
Petitioner as under:
               Sub: Notice u/s 148 of the Income Tax Act, 1961 in the
               case of Sh. Inder Pal Singh Walia PAN ­ AAKPW8463F
               for the AY 2008-09 ­ reg.

       Kindly refer to the subject mentioned above.

       In this connection, this is to inform you that a notice u/S 148 of
       the Income Tax Act, 1961 in the case of Sh. Inder Pal Singh
       Walia PAN ­ AAKPW8463F for the AY 2008-09 was issued
       by this office on 27th March 2015. This notice has been
       received back in this office with the postal remarks `addresses

       On this basis of information received from the records, the
       undersigned spoke to you on your mobile No. 9818200740 on
       15th June 2015. Kindly find enclosed the copy of notice u/S 148
       of the Income Tax Act issued on 27th March 2015 for the AY
       2008-09 in the name of Sh. Inder Pal Singh Walia. You are
       further requested to kindly provide details of legal
       heirs/successor of the deceased Assessee to complete the
       assessment proceedings for the AY 2008-09.

       The required details should be submitted to the office of the
       undersigned on the above mentioned address on or before 6 th

W.P.(C) No. 8273/2015                                                 Page 2 of 8
       July 2015."

5. On 6th July 2015, the Petitioner wrote to the ITO pointing out that his
father Shri Inder Pal Singh Walia had expired on 14th March 2015 and that
the proceedings initiated under Section 148 of the Act were barred by
limitation. Additionally, it was stated that he was unaware of the financial
affairs or transactions carried on by his late father.

6. On 18th July 2015, the ITO took the stand that since the intimation of the
death of Shri Inder Pal Singh Walia on 14 th March 2015 was not received by
her office "therefore the notice was not issued on a dead person". To say the
least this was a strange stand to take since the death certificate of Shri Inder
Pal Singh Walia confirming the date of his death as 14th March 2015 is on
record. With the Department having not been able to counter this basic fact,
the stand taken by it that the notice was not issued to a dead person on 27th
March 2015 was plainly untenable.

7. Another stand taken in the letter dated 18th July 2015 is treating the
endorsement made by the postal authority ( `addressee expired') as a refusal
by the family members of the Assessee to accept the notice. This was again
plainly erroneous. The notices were not addressed to the family members.
Therefor, there was no occasion for them to refuse such notice. The postal
authority had correctly noted that the person to whom the notice was
addressed had indeed expired by then.

8. Proceeding on the above two erroneous stands, the Department

W.P.(C) No. 8273/2015                                                 Page 3 of 8
compounded its errors by insisting on continuing with the proceedings under
Section 147/148 of the Act. It is at that stage that the Petitioner approached
this Court.

9. While issuing notice in the petition on 28th August 2015, this Court stayed
further proceedings. No counter affidavit has been filed till date. Learned
counsel for the Revenue sought some more time for that purpose. With the
facts being evident and the question being purely one of law, the Court
declines the request.

10. As far as Assessees who have expired, Section 159 of the Act sets out
how the Department should go about proceeding against the legal
representatives (`LRs') of such Assessee. The said provision reads as under:
       "159. (1) Where a person dies, his legal representative shall be
       liable to pay any sum which the deceased would have been
       liable to pay if he had not died, in the like manner and to the
       same extent as the deceased.

       (2) For the purpose of making an assessment (including an
       assessment, reassessment or re-computation under section 147)
       of the income of the deceased and for the purpose of levying
       any sum in the hands of the legal representative in accordance
       with the provisions of sub-section (1),--

       (a) any proceeding taken against the deceased before his death
       shall be deemed to have been taken against the legal
       representative and may be continued against the legal
       representative from the stage at which it stood on the date of the
       death of the deceased;

       (b) any proceeding which could have been taken against the
       deceased if he had survived, may be taken against the legal

W.P.(C) No. 8273/2015                                                 Page 4 of 8
       representative; and

       (c) all the provisions of this Act shall apply accordingly.

       (3) The legal representative of the deceased shall, for the
       purposes of this Act, be deemed to be an assessee.

       (4) Every legal representative shall be personally liable for any
       tax payable by him in his capacity as legal representative if,
       while his liability for tax remains undischarged, he creates a
       charge on or disposes of or parts with any assets of the estate of
       the deceased, which are in, or may come into, his possession,
       but such liability shall be limited to the value of the asset so
       charged, disposed of or parted with.

       (5) The provisions of sub-section (2) of section 161, section
       162, and section 167, shall, so far as may be and to the extent to
       which they are not inconsistent with the provisions of this
       section, apply in relation to a legal representative.

       (6) The liability of a legal representative under this section
       shall, subject to the provisions of sub-section (4) and sub-
       section (5), be limited to the extent to which the estate is
       capable of meeting the liability."

11. Section 159(2) of the Act makes a specific reference to a reassessment
proceeding under Section 147 of the Act. While Section 159(2)(a) of the Act
talks of a proceeding already taken against an Assessee `before his death'.
Section 159(2)(b) of the Act envisages any proceeding which could have
been taken against the deceased if he had survived. It permits such a
proceeding to be taken against the LRs of the deceased Assessee even if it
had not taken while the Assessee was alive. Section 159(2)(b) is relevant as
far as the present case is concerned.

W.P.(C) No. 8273/2015                                                 Page 5 of 8
12. What was sought to be done by the ITO was to initiate proceedings
under Section 147 of the Act against the deceased Assessee for AY 2008-09.
The limitation for issuance of the notice under Section 147/148 of the Act
was 31st March 2015. On 27th March 2015, when the notice was issued, the
Assessee was already dead. If the Department intended to proceed under
Section 147 of the Act, it could have done so prior to 31 st March 2015 by
issuing a notice to the LRs of the deceased. Beyond that date it could not
have proceeded in the matter even by issuing notice to the LRs of the

13. Learned counsel for the Revenue sought to place reliance on the decision
of the Supreme Court in Commissioner of Income Tax, Shillong v. Jai
Prakash Singh (1996) 3 SCC 525 in support of his contention that the ITO
was justified in initiating proceeding under Section 147 of the Act even
against the Petitioner who admittedly was the LR of the deceased Assessee
in this case.

14. A perusal of the said judgment reveals that it is clearly distinguishable
on facts. Para 2 of the said decision shows that the son of the deceased
Assessee there had filed returns for the three Assessment Years (`AYs') for
which the deceased Assessee had failed to file the returns. In other words,
the proceedings at the instance of the LR of the deceased Assessee were
already in progress when the question arose about the notice being issued
only to the LR who filed the returns or to all the LRs. The question was
whether the failure to issue notice to all the LRs would render the
proceedings invalid. It is in those circumstances it was held that the non-

W.P.(C) No. 8273/2015                                               Page 6 of 8
issuance of notice to all the LRs would be only an irregularity and not an

15. The Court fails to understand how the above decision in Commissioner
of Income Tax, Shillong v. Jai Prakash Singh (supra) is of any help to the
Revenue in the present case where the initial notice under Section 147/148
of the Act was issued to a dead person. The Revenue was unable to issue a
notice to the LR of the deceased Assessee under Section 147/148 of the Act
within the period of limitation. That would be a plain illegality and not a
mere irregularity.

16. Learned counsel for the Revenue then relied on the decision of the
Calcutta High Court in Kamlesh Kumar Mehta v. Commissioner of
Income-Tax, West Bengal-III (1977) 106 ITR 855 (Cal). The facts of that
case show that the initial notice under Section 148 of the Act was served to
the Assessee who was still alive. He died after the service of such notice
under Section 148 of the Act. This makes the decision distinguishable on

17. On the other hand, we have a decision of this Court in Braham Prakash
v. Income-Tax Officer (2005) 275 ITR 242 which in similar circumstances
has held that "notice could have been served upon a deceased Assessee".
Even in that case there was nothing on record to show that notice under
Section 148 of the Act was served on the LR of the deceased within the time

W.P.(C) No. 8273/2015                                              Page 7 of 8
18. Consequently, the Court has no hesitation in holding that the actions of
the Revenue in this case in persisting with the proceedings under Section
147/148 of the Act against the Petitioner were wholly misconceived both on
facts as well as on merits. Accordingly, the impugned notice dated 27 th
March 2015 and all proceedings consequent thereto are hereby quashed.

19. The writ petition is allowed but in the circumstances with no order as to
costs. The application is disposed of.

                                                   S. MURALIDHAR, J

                                                   VIBHU BAKHRU, J
FEBRUARY 15, 2016

W.P.(C) No. 8273/2015                                               Page 8 of 8
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