Smt. Asha Dubey vs Union Of India Thru. Secy. Ministry Of Finance Deptt. Revenue Sectt. New Delhi And 2 Others
- Court
- Allahabad High Court
AFR
Reserved On :- May 15, 2026
Delivered On :- July 21, 2026
Uploaded On :- July 23, 2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT TAX No. - 571 of 2026
Smt. Asha Dubey
…..Petitioner(s)
Versus
Union of India Thru. Secy. Ministry of Finance Deptt.
Revenue Sectt. New Delhi and 2 others
…..Respondent(s)
Counsel for
: Kartikey Dubey, Ramesh
Petitioner(s)
Chandra Mishra
Counsel for
: A.S.G.I., Kushagra Dikshit,
Respondent(s)
Paavan Awasthi
Court No. - 3
HON'BLE SHEKHAR B. SARAF, J.
HON'BLE ABDHESH KUMAR CHAUDHARY, J.
INDEX
S. No. CONTENTS PAGE No.
1. PRAYER 3
2. FACTS 3
3. CONTENTIONS ON BEHALF OF PETITIONER 8
CONTENTIONS ON BEHALF OF
4.
18
RESPONDENTS
5. ISSUES 33
6. RELEVANT PROVISIONS 35
7. ANALYSIS 44
8. CONCLUSION 121
9. EPILOGUE 125
Writ Tax No.571 of 2026 Page No.2 of 127
SHEKHAR B. SARAF, J.: This is a writ petition under
Article 226 of the Constitution of India seeking issuance
of a writ of certiorari quashing the notice dated March 28,
2025 issued under Section 148 of the Income Tax Act,
1961 (hereinafter referred to as the ‘Act’) for the
Assessment Year 2021-22, the subsequent notice dated
January 7, 2026 issued under Section 142(1) of the Act,
the order dated February 20, 2026 rejecting the
preliminary objections and consequential assessment as
well as demand order dated March 24, 2026 respectively
under Section 156 of the Act, inter alia , on the ground
that the entire proceedings have been initiated and
continued in the name of the deceased husband of the
petitioner, as without jurisdiction rendering the same as
null, void ab initio , and accordingly, all consequential
orders being unsustainable in law.
FACTS
2. The factual matrix of the present lis has been
delineated below:-
a. The husband of the petitioner, Shri Sanjay Dubey,
was employed as Chief Management Officer in the U.P.
Secretariat and was a taxpayer.
Writ Tax No.571 of 2026 Page No.3 of 127
b. On October 15, 2020, the husband of the petitioner,
along with his son Shri Prakhar Narayan, purchased a
residential flat for a total sale consideration of
Rs.82,83,353/- in Grand Omaxe, Lucknow. Out of the
total consideration, a sum of Rs. 55,52,954/- was paid by
the husband of the petitioner to M/s Omaxe Limited
entirely through accounted banking channels, pursuant
thereto an allotment letter dated October 15, 2020 was
issued in his favour.
c. The Income Tax department conducted a search in
accordance with Section 132 of the Act on April 1, 2021
on the Omaxe group wherein it was alleged that a cash
transaction of Rs.25,97,000/- was made by the husband
of the petitioner.
d. On January 7, 2024, the husband of the petitioner,
passed away and after completing the last rites and
necessary formalities, the petitioner left India on May 31,
2024 to stay with her daughter in the United States of
America and returned to India on September 6, 2024.
e. Upon returning to India, petitioner instructed her
Chartered Accountant to file the Income Tax Return for
Assessment Year 2024-2025 on behalf of her husband,
Writ Tax No.571 of 2026 Page No.4 of 127
which was electronically transmitted on July 30, 2024 and
ultimately filed on November 5, 2024 wherein the
disclosed total income was Rs. 39,79,990/- and paid total
tax of Rs. 9,29,754/-, comprising: (a) Rs. 4,45,540/-
voluntarily paid as self-assessment tax; and (b) Rs.
4,84,214/- being TDS already adjusted. The said return
was filed in the name of deceased assessee and verified
through Aadhaar OTP.
f. After obtaining approval from the Principal
Commissioner of Income Tax on March 20, 2025, for
initiation of proceedings under Section 148 of the Act
against the husband of the petitioner, the respondent
authority proposed to reassess the income and issued the
impugned notice dated March 28, 2025 under Section
148 of the Act in the name of the husband of the
petitioner and directed for filing of Income Tax Return
within 90 days. Such approval emanates from
discrepancy amounting to Rs. 27,44,000/- found in the
documents seized during a search conducted in the case
of the Omaxe Group on April 1, 2021.
g. Thereafter, on January 7, 2026, another impugned
notice under Section 142(1) of the Act was issued in the
Writ Tax No.571 of 2026 Page No.5 of 127
name of the husband of the petitioner, calling upon him
to produce certain documents in respect of the
Assessment Year 2021-22.
h. Upon receipt of the aforesaid notices, the petitioner
submitted a reply dated February 2, 2026 informing the
department of the death of her husband and, inter alia ,
raised preliminary objection with regard to proceedings
being initiated against a deceased person as void ab
initio.
i. Thereafter, another notice dated February 18, 2026
was issued under Section 142(1) of the Act in the name
of the husband of petitioner for furnishing requisite
documents.
j. Upon receipt of the said notice, the petitioner, vide
representation dated February 19, 2026, again reiterated
the preliminary objection, and further requested that the
preliminary objection be decided prior to proceeding
further in the matter. Respondent department passed the
impugned order dated February 20, 2026 rejecting all the
objections of the petitioner mainly on two grounds, firstly,
the department was not intimated regarding death of
assessee and secondly, active misrepresentation
Writ Tax No.571 of 2026 Page No.6 of 127
regarding factum of death by way of filing ITR. In the
said order, the name of the petitioner was substituted in
place of the deceased assessee being the legal
representative and directed compliance with the earlier
notices, for furnishing requisite documents by February
25, 2026.
k. The petitioner submitted another reply dated
February 20, 2026 reiterating the preliminary objection
as was raised by the petitioner on earlier occasions.
l. Another show cause notice dated March 6, 2026 was
issued by the respondent in furtherance of the earlier
notice under Section 142(1) dated January 7, 2026,
extending the date of reply.
m. The petitioner submitted another reply dated March
11, 2026 reiterating her preliminary jurisdictional
objection and also disputed the allegations on merits, by
denying the alleged cash transaction of Rs. 27,44,000/-.
n. The respondent department thereafter passed the
impugned assessment order under Section 147 of the Act
in the name of petitioner being the legal heir and the
consequential demand order dated March 24, 2026 under
Section 156 of the Act, by assessing the additional
Writ Tax No.571 of 2026 Page No.7 of 127
income at Rs. 69,06,520/- and determining the tax
liability at Rs. 39,67,330/- on account of the unaccounted
cash transaction.
CONTENTIONS ON BEHALF OF PETITIONER
3. Mr. Kartikey Dubey and Mr. Ramesh Chandra
Mishra, appearing on behalf of petitioner have made the
following submissions:-
a. A notice issued under Section 148 of the Act in the
name of the assessee subsequent to his death is null and
void from its inception and cannot confer any jurisdiction
upon the Assessing Officer to proceed further in the
matter.
b. The respondent department cannot derive
jurisdiction to proceed on the basis of a notice which is
otherwise void ab initio merely because the respondent
department was not informed regarding the death of the
assessee as there exists no provision under the Act
mandating intimation of death by legal heirs.
c. Section 159(2)(a) comes into operation only in a
situation where proceedings had already been validly
initiated against the assessee during his lifetime and
Writ Tax No.571 of 2026 Page No.8 of 127
thereafter, during the pendency of such proceedings, the
assessee dies. Section 159(2)(b) requires that the
proceedings are to be initiated directly against the legal
representative and not against the deceased person.
Therefore, Section 159 of the Act has no application in
the facts of the present case as it applies only in
situations where proceedings were validly initiated
against an assessee during his lifetime and during the
pendency of such proceedings the assessee expires. It is
only in such circumstances that proceedings may
continue against the legal representatives.
d. Neither clause 2(a) nor 2(b) of Section 159
contemplates or validates a situation akin to the present
case where notice itself is issued in the name of a dead
person.
e. The mere filing of an Income Tax Return by the
petitioner after the death of assessee cannot cure the
inherent jurisdictional defect in the notice issued under
Section 148 of the Act.
f. The issuance of a valid notice under Section 148 is
not a mere procedural formality but is a foundational and
jurisdictional requirement for initiation of reassessment
Writ Tax No.571 of 2026 Page No.9 of 127
proceedings under the Act which needs to be fulfilled as
the entire edifice of reassessment proceedings rests upon
the existence of a valid notice under Section 148. In
absence whereby, the Assessing Officer lacks inherent
jurisdiction to proceed with the reassessment as in the
present case.
g. The notice under Section 148 constitutes the very
first step for assumption of jurisdiction and initiation of
reassessment proceedings. In absence of a valid notice,
no reassessment proceedings can lawfully continue or
culminate into an assessment order. Since, the notice
itself is legally non-existent in the present case, it must
be deemed that no notice under Section 148 was ever
issued in the eyes of law. Consequently, the entire
proceedings initiated pursuant thereto are wholly without
jurisdiction and unsustainable.
h. Once the statute itself mandates that proceedings, if
initiated after the death of the assessee, are required to
be initiated directly against the legal representatives,
then mere participation by the legal representative in the
proceedings cannot confer jurisdiction upon the
respondent authorities and validate the proceedings
Writ Tax No.571 of 2026 Page No.10 of 127
which are otherwise void ab initio and without
jurisdiction.
i. The fact that petitioner had filed the Income Tax
Return in name of the deceased cannot confer any
jurisdiction upon the authorities by acquiescence, waiver,
participation or conduct of parties to issue notice to a
dead person.
j. Furthermore, the principles of estoppel, waiver,
acquiescence, approbate and reprobate are all equitable
doctrines that have no place in taxation statutes. Hence,
jurisdiction which is otherwise absent under the statute
cannot be conferred by consent, waiver, participation or
estoppel.
k. Once the statute does not contemplate issuance of
notice under Section 148 in the name of a dead person,
the same cannot be validated on the basis of participation
by the legal representatives or on equitable doctrines
such as acquiescence, waiver, estoppel, or approbate and
reprobate. Jurisdiction under a taxing statute must exist
strictly in terms of the statute itself and cannot be
conferred by conduct of parties.
Writ Tax No.571 of 2026 Page No.11 of 127
l. The defect in the notice cannot be cured by resort to
Section 292B of the Act as it merely protects notices,
proceedings or returns from invalidation on account of
technical mistakes, defects or omissions, provided that
such notice or proceeding is otherwise in substance and
in effect is in conformity with or according to the intent
and purpose of the Act. The said provision does not cure
a foundational or jurisdictional defect which goes to the
very root of the matter. In the present case, issuance of
notice against a dead person is itself contrary to the
scheme, object and intent of the Act, particularly Sections
159 and 148 thereof. Therefore, the preconditions for
applicability of Section 292B are themselves absent in the
present case.
m. The applicability of Section 150(1) of the Act for
extending the period of limitation for issuance of notice
under Section 148 is expressly barred by Section 150(2)
in the facts of the present case as Section 150(2) of the
Act specifically carves out an exception to Section 150(1)
and categorically provides that the benefit of Section
150(1) shall not be available in a case where
reassessment for the relevant assessment year had
already become barred by limitation at the time when the
Writ Tax No.571 of 2026 Page No.12 of 127
‘order’ which was the subject matter of appeal, reference
or revision was made.
n. The legislature has consciously and deliberately
employed the expression ‘order’ in Section 150(2) of the
Act and not the expression ‘notice’. Therefore, the
statutory requirement is that the ‘order’ (not notice)
forming the subject matter of appeal, revision or
reference must itself be within the prescribed period of
limitation. The provision cannot be interpreted to mean
that mere issuance of a notice within limitation would
suffice.
o. If the benefit of Section 150(1) is extended in the
present case, the same would amount to enlarging and
rewriting the scope consciously provided by the
legislature under the Act and would effectively amount to
conferring jurisdiction upon the Assessing Officer which
otherwise does not exist in view of the bar created under
Section 149 of the Act. Moreover, the conferment of
jurisdiction is purely a legislative function and jurisdiction
cannot be created either by consent of parties,
acquiescence, waiver or even by orders of a superior
court contrary to the statutory provisions.
Writ Tax No.571 of 2026 Page No.13 of 127
p. In the present case, the assessment order dated
March 24, 2026 itself is ex facie beyond limitation as the
limitation for completing reassessment proceedings in the
present case expired on March 31, 2025. Prior to expiry
of limitation, only a notice under Section 148 dated March
28, 2025 had been issued. However, no assessment order
came to be passed within the prescribed limitation period.
Section 150(1) cannot be invoked to revive or validate
proceedings which had already become time barred.
q. The present reassessment proceedings emanate
from the search and seizure proceedings. However,
despite possession of the alleged incriminating material,
the respondent department admittedly took no action
whatsoever for a period of more than three years and it
was only on March 28, 2025, that is, merely three days
prior to expiry of limitation, the notice under Section 148
of the Act was issued. Therefore, merely because the
respondent department remained inactive and slept over
the alleged documents for more than three years, the
same cannot furnish any ground for extending limitation
contrary to the statutory mandate.
Writ Tax No.571 of 2026 Page No.14 of 127
r. To buttress his aforesaid arguments, counsel has
placed reliance on the following precedents of the
Supreme Court and various High Courts for respective
propositions:-
I. Notice issued to a dead person is null and void
as the sine qua non for issuing notice under Section
148 of the Act is that it is issued in the name of
correct person and such defect cannot be cured
under Section 292B of the Act. Moreover, the legal
heirs are under no statutory obligation to inform the
department regarding death of the assessee.
i. Alamelu Veerappan vs. Income Tax
1
Officer ;
ii. Savita Kapila vs. Assistant
2
Commissioner of Income Tax ;
3
iii. Satendra Kumar vs. State of U.P. ;
iv. Shri Devendra vs. Addl./Joint
4
Commissioner of Income Tax ;
1 2018 SCC Online Mad 13593; (2018) 304 CTR 512; (2018) 12 ITR-
OL 95
2 2020 SCC OnLine Del 2540; (2020) 426 ITR 502; (2020) 316 CTR
465
3 Allahabad High Court in Writ Tax No. 1728 of 2025 (Neutral
Citation No.2025:AHC:62525-DB)
4 2023 SCC OnLine Bom 1409; (2024) 461 ITR 463; (2023) 5 Bom
CR 529
Writ Tax No.571 of 2026 Page No.15 of 127
v. Sumit Balkrishna Gupta vs. Assistant
5
Commissioner of Income Tax ;
6
vi. Bhupendra Bhikhalal Desai vs. ITO ;
7
vii. ITO vs. Bhupendra Bhikhalal Desai
II. Section 159(2)(b) is attracted where a
valid notice is issued to the legal representative of
the deceased assessee:
8
viii. Mrs. Vanitha Gopal Shetty vs. ACIT ;
ix. Rajendra Kumar Sehgal vs. Income
9
Tax Officer ;
III. Participation in the proceedings (Section
292BB) shall not make the notice issued to a dead
person valid:
x. Principal Commissioner of Income
Tax New Delhi vs. Maruti Suzuki India
10
Limited ;
5 2019 SCC OnLine Bom 13178; (2019) 414 ITR 292; (2019) 309
CTR 182
6 2021 SCC OnLine Guj 3074; (2021) 17 ITR-OL 604; (2021) 320
CTR 289; (2021) 130 taxmann.com 196 (Gujarat High Court)
7 SLP(C) No. 13061 of 2021
Karnataka High Court in WP No. 19840/2019 vide order dated
8
July 5, 2021 (Neutral Citation 2021:KHC:22635)
9 2018 SCC OnLine Del 12890; (2019) 306 CTR 264; (2019) 414 ITR
286
10 (2020) 18 SCC 331; (2019) 416 ITR 613; 2019 SCC OnlLine SC
928
Writ Tax No.571 of 2026 Page No.16 of 127
xi. Krishnaawtar Kabra vs. Income Tax
11
Officer ;
12
xii. Meet Lalwani vs. CIT ;
13
xiii. Sandeep Chopra vs. CIT ;
14
xiv. Gourang Anil Wakade vs. CIT ;
xv. Neena Jatin Shah vs. Income Tax
15
Officer ;
IV. Equity has no place in tax law:
xvi. Commissioner of Income Tax,
Madras & Anr. vs. V. MR. P. Firm Muar
16
& Ors. ;
xvii. Commissioner of Income Tax vs.
17
Calcutta Knitwears, Ludhiana ;
xviii. Jagmittar Sen Bhagat vs. Director
18
Heath Services Haryana ;
11 2022 SCC OnLine Guj 2607; (2022) 20 ITR-OL 138
12 (2025) 483 ITR 172; 2023 SCC OnLine MP 4450; (2024) 337 CTR
602; (2024) 2 MP LJ 328
13 (2023) 455 ITR 613; 2023 SCC OnLine Jhar 2595
14 (2025) 474 ITR 575; 2024 SCC OnLine Bom 3772
15 Bombay High Court in Writ Petition(L) no. 23147 of 2025 vide
order dated September 30, 2025 (Neutral Citation BHC-OS:17072-
DB)
16 1964 SCC OnLine SC 98; (1965) 56 ITR 67
17 (2014) 6 SCC 444; (2014) 362 ITR 673; (2014) SCC OnLine SC
227
18 (2013) 10 SCC 136; AIR 2013 SC 3060
Writ Tax No.571 of 2026 Page No.17 of 127
V. On Interpretation of Statutes:
xix. Union of India vs. Deoki Nandan
19
Agarwal ;
xx. Yeshwant Nathuji Meshram vs. State
20
of Maharastra ;
21
xxi. Manish Goel vs. Rohini Goel ;
xxii. Sandeep Kumar Bafna vs. State of
22
Maharastra ;
VI. Limitation period for issuance of notice under
Section 148 cannot be extended beyond the
statutory period prescribed under Section 149 of the
Act.
23
xxiii. Sujata Devi vs. Income Tax Officer
xxiv. Commissioner of Income Tax Act vs.
24
Hemkunt Timbers Ltd ;
CONTENTIONS ON BEHALF OF RESPONDENTS
4. Mr. Paavan Awasthi and Mr. Neerav Chitravanshi,
19 1992 Supp(1) SCC 323; 1992 SCC (L&S) 248
20 1995(1) Mh.L.J. 48; 1995 Cri LJ 2228; (1996) 5 Bom CR 358
21 (2010) 4 SCC 393; AIR 2010 SC 1099
22 (2014) 16 SCC 623; (2014) 13 SCR 177; AIR 2014 SC 1745
23 2024 SCC OnLine Jhar 425; (2025) 472 ITR 463
24 2016 SCC OnLine All 4310; (2016) 380 ITR 658; (2016) 283 CTR 1
Writ Tax No.571 of 2026 Page No.18 of 127
appearing on behalf of respondents have meticulously
made the following submissions:-
a. The present writ petition deserves to be dismissed
on the ground of suppression, misrepresentation and
blameworthy conduct attributable to the petitioner herself
as the Income Tax Return for the Financial Year 2023–24
relevant to Assessment Year 2024–25 came to be
electronically verified in the name of the deceased
assessee through Aadhaar OTP authentication. The return
acknowledgment itself records that the return was
verified by deceased assessee through electronic
verification mode. Thus, the petitioner fully admits the
knowledge of death of the assessee at the relevant time
and simultaneously admits her active role in causing
filing/verification of the return even after the death of the
assessee.
b. The aforesaid conduct strikes at the very root of the
equitable jurisdiction as Section 140 of the Act, provides
that the return of income shall be verified by the
individual himself or where it is not possible for the
individual to verify the return, it shall be done by any
other person duly authorised by him in that behalf. Thus,
Writ Tax No.571 of 2026 Page No.19 of 127
under the scheme of Section 140 of the Act, 1961, once
an assessee has expired, the return can only be verified
by the legal representative and not in the name of the
deceased person.
c. The verification of a return is not a mere procedural
formality but a solemn statutory declaration affirming the
correctness and authenticity of the contents of the return.
Despite the death of assessee, the return was caused to
be verified electronically in his own name several months
after his death, which is ex facie contrary to the statutory
scheme of Section 140 of the Act and the framework
governing electronic verification and digital
authentication. The petitioner, having admittedly
instructed and facilitated such filing, cannot now seek to
invoke discretionary and equitable writ jurisdiction by
simultaneously disowning the legal consequences flowing
from the same return and the participation thereby
before the Income Tax department.
d. The conduct of the petitioner prima facie attracts the
penal consequences contemplated under Section 277 of
the Act, which penalizes for making of a false statement
in verification or delivering an account or statement
Writ Tax No.571 of 2026 Page No.20 of 127
which is false and which the maker either knows or
believes to be false, or does not believe to be true and
also disentitled her from any equitable or discretionary
relief on account of her own conduct in causing a false
verification to be made before a statutory authority.
e. The petitioner, while asserting herself to be the legal
heir/legal representative of deceased assessee, cannot be
permitted to approbate and reprobate simultaneously by
first causing the return to be filed and verified in the
name of the deceased assessee and thereafter
contending that the proceedings initiated on the basis of
the records and representations available with the
department are void.
f. The department was never informed through lawful
statutory procedure about the death of the assessee prior
to initiation of proceedings under Section 148 of the Act.
On the contrary, the records available with the
department continued to reflect active electronic
compliance in the name of the assessee even after his
death, including filing and verification of returns. The
petitioner, having herself contributed to creation and
continuation of such statutory record in the name of the
Writ Tax No.571 of 2026 Page No.21 of 127
deceased assessee, cannot now be permitted to take
advantage of her own wrong and seek invalidation of
proceedings by alleging that the notice was issued in the
name of a dead person.
g. Section 159 expressly embodies the legislative
intent that the death of an assessee does not result
either in extinction of tax liability or in abatement of
assessment proceedings. On the contrary, the statute
specifically provides that where an assessee 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, and further deems the legal representative to be an
assessee for the purposes of the Act.
h. Section 159 contemplates the principle that tax
liabilities survive the death of the assessee and continue
against the estate in the hands of the legal
representative. Thus, the legislative policy underlying
Section 159 is to ensure continuity of assessment,
reassessment and recovery proceedings notwithstanding
the death of the original assessee, so that public revenue
is not defeated merely on account of death.
Writ Tax No.571 of 2026 Page No.22 of 127
i. Section 159(2) further specifically contemplates
continuation and initiation of proceedings even after
death of the assessee. The provision expressly states that
any proceeding taken against the deceased before his
death may be continued against the legal representative
and further authorizes that any proceeding which could
have been taken against the deceased if he had survived
may also be taken against the legal representative. The
statutory scheme therefore makes it abundantly clear
that the substance of liability and assessment survives
and attaches to the legal representative notwithstanding
death of the assessee.
j. In the present case, the petitioner steps into the
shoes of the deceased assessee as the legal
representative and heir by having participated in the
reassessment proceedings via filing objections and replies
before the assessing authority which itself invokes
Section 159 of the Act.
k. That the object and purpose of Section 159 would
stand completely frustrated if the interpretation sought to
be canvassed by the petitioner is accepted. Such an
interpretation would permit legal representatives, despite
Writ Tax No.571 of 2026 Page No.23 of 127
full knowledge of death and despite participating in tax
compliances and proceedings, to withhold disclosure of
death from the department, continue filings in the name
of the deceased assessee, and thereafter seek annulment
of proceedings on purely technical grounds after the
limitation period expires. Such a construction would not
only defeat the statutory scheme but would also cause
manifest prejudice to public revenue and encourage
abuse of process. The provisions of Section 159 are
therefore required to be construed in a manner that
advances the legislative object of preservation and
continuity of tax liability rather than permitting its
artificial extinguishment on account of procedural or
technical objections.
l. The alleged defect, in issuance of notice under
Section 148 in the name of deceased assessee is curable
and protected under Section 292B of the Act which
expressly provides that no return of income, assessment,
notice, summons or other proceeding shall be invalid
merely by reason of any mistake, defect or omission in
such notice or proceeding if the same is in substance and
effect in conformity with or according to the intent and
purpose of the Act
Writ Tax No.571 of 2026 Page No.24 of 127
m. The reassessment proceedings in the present case
were initiated for lawful assessment of escaped income of
deceased assessee and were at all times intended to
operate against the estate represented by the legal
representative. The substance, object and intent of the
proceedings therefore remained fully consistent with the
statutory scheme under Sections 147, 148 and 159 of the
Act. Any defect in description of the notice or failure to
substitute the name of the legal representative at the
threshold is therefore curable under Section 292B.
n. The Department was under bona fide mistake
regarding the death of the assesssee on the basis of
official records available with it, which reflect active
statutory compliance in the name of the assessee even
after his death. The issuance of notice in the name of the
deceased assessee therefore occurred solely on account
of absence of disclosure by the petitioner and on the
basis of records actively maintained and continued under
her own instructions. In such circumstances, the defect, if
any, is purely technical and procedural in nature and does
not strike at the substantive jurisdiction of the
department to assess escaped income which otherwise
Writ Tax No.571 of 2026 Page No.25 of 127
survives against the legal representative under Section
159 of the Act.
o. No prejudice has been caused to the petitioner on
account of the notice being initially addressed in the
name of the deceased assessee. The proceedings
throughout remained referable to the escaped income
and tax liability of late Shri Sanjay Dubey, which by
operation of Section 159 statutorily survives against the
legal representative. Merely because the notice initially
bore the name of the deceased assessee would not
invalidate the entire proceedings when the legal
representative had complete knowledge of the
proceedings, participated therein and contested the
matter on merits.
p. Equitable jurisdiction under Article 226 of the
Constitution of India, ought to construe Section 292B in a
manner that advances the legislative object of preserving
lawful assessment proceedings rather than frustrating
them on account of technical defects which have caused
no prejudice whatsoever to the petitioner.
q. This Hon’ble Court, while exercising jurisdiction
under Article 226, may mould the relief, if at all required,
Writ Tax No.571 of 2026 Page No.26 of 127
by granting liberty/direction to the Department to issue
fresh notice under Section 148 to the legal representative
in terms of Section 150(1) and proceed in accordance
with law as Section 150(1) of the Act was specifically
enacted to meet such situations and expressly overrides
the limitation contained in Section 149 by providing that
a notice under Section 148 may be issued “at any time”
for the purpose of making an assessment, reassessment
or recomputation in consequence of, or to give effect to,
any finding or direction contained in an order passed by
any authority in any proceeding under the Act by way of
appeal, reference or revision, or by a Court in any
proceeding under any other law. The very object of
Section 150 is to ensure that lawful assessment or
reassessment is not frustrated where action becomes
necessary in consequence of a finding or direction of a
Court or appellate/revisional authority.
r. The interpretation canvassed by the petitioner would
render Section 150 otiose and defeat the legislative
scheme. The petitioner cannot be permitted to argue, on
the one hand, that the existing notice must be quashed
as having been issued in the name of the deceased
assessee and, on the other hand, that no fresh notice can
Writ Tax No.571 of 2026 Page No.27 of 127
be issued because limitation under Section 149 has
expired. Such a contention would convert a procedural
objection into complete immunity from assessment,
despite the express mandate of Section 159 that tax
liability survives against the legal representative and
despite the overriding machinery contained in Section
150.
s. The provisions of the Income-tax Act, 1961,
particularly the machinery provisions governing
reassessment and continuation of proceedings against
legal representatives, are required to be interpreted in a
manner that advances the object of the statute and
protects the legitimate interests of public revenue rather
than in a manner which permits evasion or artificial
extinguishment of tax liability on technical pleas. It is a
settled principle that the Income-tax Act is not merely a
taxing statute but also a complete machinery for
assessment, recovery and protection of revenue.
t. Sections 159, 150 and 292B of the Act are
manifestly machinery provisions as Section 159 enables
continuation and enforcement of tax liability against legal
representatives of a deceased assessee; Section 150
Writ Tax No.571 of 2026 Page No.28 of 127
provides the machinery by which reassessment
proceedings may be initiated notwithstanding ordinary
limitation where findings or directions exist and Section
292B validates proceedings despite technical mistakes,
defects or omissions. An interpretation that advances the
statutory purpose should be construed liberally and
purposively so as to make the statute workable and
effective and not to defeat the object of taxation.
u. Writ jurisdiction under Article 226 is extraordinary,
equitable and discretionary. It is intended to advance the
cause of justice rather than defeat it on technical
considerations.
v. To buttress his aforesaid arguments, counsel has
placed reliance on the following precedents of the
Supreme Court and various High Courts for respective
propositions:-
I. Blameworthy conduct not entitled to
equitable relief:
i. Union of India v. Maj. Gen. Madan Lal
25
Yadav ;
25 (1996) 4 SCC 127; 1996 SCC (Cri) 592; AIR 1996 SC 1340
Writ Tax No.571 of 2026 Page No.29 of 127
ii. Municipal Committee Katra v.
26
Ashwani Kumar ;
iii. Chandra Singh v. State of
27
Rajasthan ;
28
iv. State of Maharashtra v. Digambar ;
II. Ommission or defect in service does not erase
or efface the liability to pay tax:
v. Estate of Late Rangalal Jajodia v.
29
Commissioner of Income Tax ;
vi. Sky Light Hospitality LLP v. Assistant
30
Commissioner of Income Tax ;
vii. Sunil Kumar Sahoo v. Deputy
31
Commissioner of Income Tax ;
viii. Maharaja of Patiala v. Commissioner
32
of Income Tax ;
33
ix. CIT v. Jai Prakash Singh ;
2024 SCC Online SC 840; 2024 INSC 398
26
27 (2003) 6 SCC 545; 2003 SCC (L&S) 951
28 (1995) 4 SCC 683; AIR 1995 SC 1991
29 (1970) 3 SCC 371; (1971) 79 ITR 505
30 (2018) 13 SCC 147
31 2026 SCC OnLine Ori 1429; Orissa High Court in W.P.(C) No.
23165 of 2025
32 (1943) 11 ITR 202 (Bom); 1942 SCC OnLine Bom 173
33 (1996) 3 SCC 525; (1996) 219 ITR 737; 1996 SCC OnLine SC 128
Writ Tax No.571 of 2026 Page No.30 of 127
III. Reassessment proceedings can be initiated
against the legal heir of the deceased assessee:
x. Income-Tax Officer v. Eastern Coal
34
Co. Ltd. ;
35
xi. CIT v. Vikram Sujitkumar Bhatia ;
IV. Fresh notice under Section 148 can be issued
due to overriding nature of Section 150:
xii. Sukhdayal Pahwa v. Commissioner of
36
Income Tax ;
xiii. Commissioner of Income Tax v. Glass
37
Equipment (India) Ltd . ;
38
xiv. Mahadeo Prasad Bais v. ITO ;
39
xvi. Union of India v. Ashish Agarwal ;
xv. Comptroller and Auditor-General of
40
India v. K.S. Jagannathan ;
41
xvi. Common Cause v. Union of India ;
34 (1975) 101 ITR 477; 1973 SCC Online Cal 200; 1976 Tax LR
197
35 (2024) 7 SCC 741; (2023) 453 ITR 417
36 (1983) 140 ITR 206 (MP) ; 1981 SCC Online MP 167
37 (2014) 366 ITR 59; 2014 SCC OnLine Cal 10765
38 (1991) 4 SCC 560; (1991) 192 ITR 402
39 (2023) 1 SCC 617; (2022) 444 ITR 1
40 (1986) 2 SCC 679
41 (1999) 6 SCC 667
Writ Tax No.571 of 2026 Page No.31 of 127
xvii. State of Uttar Pradesh vs. Mohammad
42
Nooh ’
43
xviii. Roshan Deen vs. Preeti Lal ;
xix. Gowthaman S vs. Income Tax
44
Officer ;
xx . Commissioner of Sales tax and Others
45
vs. Subhash & Co.
V. Scheme of the Act:
46
xxi. Malabar Industrial Co. Ltd. vs. CIT ;
47
xxii. CIT vs. Paville Projects Pvt. Ltd. ;
VI. Interpretation of Taxing Statutes:
48
xxiii. CIT vs. National Taj Traders ;
49
xxiv. Gursahai Saigal vs. CIT ;
xxv. State of Tamil Nadu v. M. K.
50
Kandaswami ;
42 AIR 1958 SC 86; (1958) SCR 595
43 (2002) 1 SCC 100
44 Madras High Court in WP No. 39793 of 2025 vide order dated
October 27, 2025
45 (2003) 3 SCC 454
46 (2000) 2 SCC 718
47 2023 SCC Online SC 371; 2023 (453) ITR 447
48 (1980) 1 SCC 370
49 AIR 1963 SC 1062
50 (1975) 4 SCC 745
Writ Tax No.571 of 2026 Page No.32 of 127
51
xxvi. CIT vs. Calcutta Knitwears ;
xxvii. Mahadeo Prasad Bais v. Income Tax
52
Officer ;
ISSUES
5. Upon perusal of the contentions and
submissions made on behalf of the counsel appearing on
behalf of the parties, the following issues emerge for
consideration:-
I. Whether the revenue can invoke Section 159 to
validate proceedings that were initiated against a
person who was already dead on the date of
initiation?
II. Whether the issuance of a notice under Section
148 of the Act to a deceased assessee constitutes a
mere "mistake, defect or omission" curable under
Section 292B of the Act, or whether it amounts to a
substantive jurisdictional defect going to the root of
the matter that cannot be cured by any subsequent
action of the revenue?
51 (2014) 6 SCC 444
52 (1991) 4 SCC 560
Writ Tax No.571 of 2026 Page No.33 of 127
III. Whether the petitioner, legal heir of the
deceased assessee, can be said to have waived her
jurisdictional objection or submitted to the
jurisdiction of the Assessing Officer by virtue of
having filed returns and replies on behalf of
deceased assessee in view of Section 292BB of the
Act?
IV. Whether reassessment proceedings initiated
under Section 148 of the Income-tax Act, 1961, can
be justified on equitable grounds to protect the
interests of the revenue, or whether such
proceedings must satisfy the strict requirements of
the statute?
V. If the High Court decides against the
department with regard to the validity of the
reassessment notice under Section 148 in the
present writ petition, would the said decision
amount to a ‘direction’ or ‘finding’ for issuance of a
fresh show cause notice for reassessment against
the legal representative of the deceased assessee?
Writ Tax No.571 of 2026 Page No.34 of 127
RELEVANT PROVISIONS
6. The provisions of Act relevant to the present
case are quoted hereinbelow:-
“142. Inquiry before assessment—(1) For the purpose
of making an assessment under this Act, the Assessing
Officer may serve on any person who has made a return
under section 115WD or section 139 or in whose case
the time allowed under sub-section (1) of section 139
for furnishing the return has expired a notice requiring
him, on a date to be therein specified,—
(i) where such person has not made a return within the
time allowed under sub-section (1) of section 139 or
before the end of the relevant assessment year, to
furnish a return of his income or the income of any other
person in respect of which he is assessable under this
Act, in the prescribed form and verified in the prescribed
manner and setting forth such other particulars as may
be prescribed, or :
Provided that where any notice has been served under
this sub-section for the purposes of this clause after the
end of the relevant assessment year commencing on or
after the 1st day of April, 1990 to a person who has not
made a return within the time allowed under sub-section
(1) of section 139 or before the end of the relevant
assessment year, any such notice issued to him shall be
deemed to have been served in accordance with the
provisions of this sub-section,
(ii) to produce, or cause to be produced, such accounts
or documents as the Assessing Officer may require, or
(iii) to furnish in writing and verified in the prescribed
manner information in such form and on such points or
matters (including a statement of all assets and
liabilities of the assessee, whether included in the
accounts or not) as the Assessing Officer may require :
Provided that—
(a) the previous approval of the Joint Commissioner
shall be obtained before requiring the assessee to
furnish a statement of all assets and liabilities not
included in the accounts;
Writ Tax No.571 of 2026 Page No.35 of 127
(b) the Assessing Officer shall not require the
production of any accounts relating to a period more
than three years prior to the previous year.
*
147 . Income escaping assessment.—If the Assessing
Officer has reason to believe that any income chargeable
to tax has escaped assessment for any assessment year,
he may, subject to the provisions of sections 148 to
153, assess or reassess such income and also any other
income chargeable to tax which has escaped assessment
and which comes to his notice subsequently in the
course of the proceedings under this section, or
recompute the loss or the depreciation allowance or any
other allowance, as the case may be, for the assessment
year concerned (hereafter in this section and in sections
148 to 153 referred to as the relevant assessment
year):
Provided that where an assessment under sub-section
(3) of section 143 or this section has been made for the
relevant assessment year, no action shall be taken under
this section after the expiry of four years from the end
of the relevant assessment year, unless any income
chargeable to tax has escaped assessment for such
assessment year by reason of the failure on the part of
the assessee to make a return under section 139 or in
response to a notice issued undersub-section (1) of
section 142 or section 148 or to disclose fully and truly
all material facts necessary for his assessment, for that
assessment year:
[Provided further that nothing contained in the first
proviso shall apply in a case where any income in
relation to any asset (including financial interest in any
entity) located outside India, chargeable to tax, has
escaped assessment for any assessment year:]
Provided also that the Assessing Officer may assess or
reassess such income, other than the income involving
matters which are the subject matters of any appeal,
reference or revision, which is chargeable to tax and has
escaped assessment.
Explanation 1.—Production before the Assessing Officer
of account books or other evidence from which material
evidence could with due diligence have been discovered
by the Assessing Officer will not necessarily amount to
disclosure within the meaning of the foregoing proviso.
Writ Tax No.571 of 2026 Page No.36 of 127
Explanation 2.—For the purposes of this section, the
following shall also be deemed to be cases where income
chargeable to tax has escaped assessment, namely:—
(a) where no return of income has been furnished by the
assessee although his total income or the total income
of any other person in respect of which he is assessable
under this Act during the previous year exceeded the
maximum amount which is not chargeable to income-
tax;
(b) where a return of income has been furnished by the
assessee but no assessment has been made and it is
noticed by the Assessing Officer that the assessee has
understated the income or has claimed excessive loss,
deduction, allowance or relief in the return;
[(ba) where the assessee has failed to furnish a report in
respect of any international transaction which he was so
required under section 92E;]
(c) where an assessment has been made, but—
(i) income chargeable to tax has been underassessed; or
(ii) such income has been assessed at too low a rate; or
(iii) such income has been made the subject of excessive
relief under this Act ; or
(iv) excessive loss or depreciation allowance or any
other allowance under this Act has been computed;]
[(ca) where a return of income has not been furnished
by the assessee or a return of income has been
furnished by him and on the basis of information or
document received from the prescribed
income-tax authority, under sub-section (2) of section
133C, it is noticed by the Assessing Officer that the
income of the assessee exceeds the maximum amount
not chargeable to tax, or as the case may be, the
assessee has understated the income or has claimed
excessive loss, deduction, allowance or relief in the
return;]
[(d) where a person is found to have any asset
(including financial interest in any entity) located outside
India.]
[Explanation 3.—For the purpose of assessment or
reassessment under this section, the Assessing Officer
may assess or reassess the income in respect of any
issue, which has escaped assessment, and such issue
Writ Tax No.571 of 2026 Page No.37 of 127
comes to his notice subsequently in the course of the
proceedings under this section, notwithstanding that the
reasons for such issue have not been included in the
reasons recorded under sub-section (2) of section 148.]
[Explanation 4.—For the removal of doubts, it is hereby
clarified that the provisions of this section, as amended
by the Finance Act, 2012 (23 of 2012), shall also be
applicable for any assessment year beginning on or
before the 1st day of April, 2012.]
“ 148. Issue of notice where income has escaped
assessment .—Before making the assessment,
reassessment or recomputation under Section 147, and
subject to the provisions of Section 148-A, the Assessing
Officer shall serve on the assessee a notice, along with a
copy of the order passed, if required, under clause (d) of
Section 148-A, requiring him to furnish within such
period, as may be specified in such notice, a return of
his income or the income of any other person in respect
of which he is assessable under this Act during the
previous year corresponding to the relevant assessment
year, in the prescribed form and verified in the
prescribed manner and setting forth such other
particulars as may be prescribed; and the provisions of
this Act shall, so far as may be, apply accordingly as if
such return were a return required to be furnished under
Section 139:
Provided that no notice under this section shall be issued
unless there is information with the Assessing Officer
which suggests that the income chargeable to tax has
escaped assessment in the case of the assessee for the
relevant assessment year and the Assessing Officer has
obtained prior approval of the specified authority to
issue such notice.
Explanation 1.—For the purposes of this section and
Section 148-A, the information with the Assessing
Officer which suggests that the income chargeable to tax
has escaped assessment means,—
(i) any information flagged in the case of the assessee
for the relevant assessment year in accordance with the
risk management strategy formulated by the Board from
time to time;
(ii) any final objection raised by the Comptroller and
Auditor-General of India to the effect that the
assessment in the case of the assessee for the relevant
assessment year has not been made in accordance with
the provisions of this Act.
Writ Tax No.571 of 2026 Page No.38 of 127
Explanation 2.—For the purposes of this section, where,
—
(i) a search is initiated under Section 132 or books of
account, other documents or any assets are
requisitioned under Section 132-A, on or after the 1st
day of April, 2021, in the case of the assessee; or
(ii) a survey is conducted under Section 133-A, other
than under sub-section (2A) or sub-section (5) of that
section, on or after the 1st day of April, 2021, in the
case of the assessee; or
(iii) the Assessing Officer is satisfied, with the prior
approval of the Principal Commissioner or Commissioner,
that any money, bullion, jewellery or other valuable
article or thing, seized or requisitioned under Section
132 or under Section 132-A in case of any other person
on or after the 1st day of April, 2021, belongs to the
assessee; or
(iv) the Assessing Officer is satisfied, with the prior
approval of Principal Commissioner or Commissioner,
that any books of account or documents, seized or
requisitioned under Section 132 or Section 132-A in case
of any other person on or after the 1st day of April,
2021, pertains or pertain to, or any information
contained therein, relate to, the assessee,
the Assessing Officer shall be deemed to have
information which suggests that the income chargeable
to tax has escaped assessment in the case of the
assessee for the three assessment years immediately
preceding the assessment year relevant to the previous
year in which the search is initiated or books of account,
other documents or any assets are requisitioned or
survey is conducted in the case of the assessee or
money, bullion, jewellery or other valuable article or
thing or books of account or documents are seized or
requisitioned in case of any other person.
Explanation 3.—For the purposes of this section,
specified authority means the specified authority
referred to in Section 151.”.
“ 148-A. Conducting inquiry, providing opportunity
before issue of notice under Section 148 .—The
Assessing Officer shall, before issuing any notice under
Section 148,—
(a) conduct any enquiry, if required, with the prior
approval of specified authority, with respect to the
Writ Tax No.571 of 2026 Page No.39 of 127
information which suggests that the income chargeable
to tax has escaped assessment;
(b) provide an opportunity of being heard to the
assessee, with the prior approval of specified authority,
by serving upon him a notice to show cause within such
time, as may be specified in the notice, being not less
than seven days and but not exceeding thirty days from
the date on which such notice is issued, or such time, as
may be extended by him on the basis of an application
in this behalf, as to why a notice under Section 148
should not be issued on the basis of information which
suggests that income chargeable to tax has escaped
assessment in his case for the relevant assessment year
and results of enquiry conducted, if any, as per clause
(a);
(c) consider the reply of assessee furnished, if any, in
response to the show-cause notice referred to in clause
(b);
(d) decide, on the basis of material available on record
including reply of the assessee, whether or not it is a fit
case to issue a notice under Section 148, by passing an
order, with the prior approval of specified authority,
within one month from the end of the month in which
the reply referred to in clause (c) is received by him, or
where no such reply is furnished, within one month from
the end of the month in which time or extended time
allowed to furnish a reply as per clause (b) expires:
Provided that the provisions of this section shall not
apply in a case where,—
(a) a search is initiated under Section 132 or books of
account, other documents or any assets are
requisitioned under Section 132-A in the case of the
assessee on or after the 1st day of April, 2021; or
(b) the Assessing Officer is satisfied, with the prior
approval of the Principal Commissioner or Commissioner
that any money, bullion, jewellery or other valuable
article or thing, seized in a search under Section 132 or
requisitioned under Section 132-A, in the case of any
other person on or after the 1st day of April, 2021,
belongs to the assessee; or
(c) the Assessing Officer is satisfied, with the prior
approval of the Principal Commissioner or Commissioner
that any books of account or documents, seized in a
search under Section 132 or requisitioned under Section
132-A, in case of any other person on or after the 1st
Writ Tax No.571 of 2026 Page No.40 of 127
day of April, 2021, pertains or pertain to, or any
information contained therein, relate to, the assessee.
Explanation.—For the purposes of this section, specified
authority means the specified authority referred to in
Section 151.”.
149. Time limit for notice .—(1) No notice under
Section 148 shall be issued for the relevant assessment
year,—
(a) if three years have elapsed from the end of the
relevant assessment year, unless the case falls under
clause (b);
(b) if three years, but not more than ten years, have
elapsed from the end of the relevant assessment year
unless the Assessing Officer has in his possession books
of account or other documents or evidence which reveal
that the income chargeable to tax, represented in the
form of asset, which has escaped assessment amounts
to or is likely to amount to fifty lakh rupees or more for
that year:
Provided that no notice under Section 148 shall be
issued at any time in a case for the relevant assessment
year beginning on or before 1st day of April, 2021, if
such notice could not have been issued at that time on
account of being beyond the time limit specified under
the provisions of clause (b) of sub-section (1) of this
section, as they stood immediately before the
commencement of the Finance Act, 2021:
Provided further that the provisions of this sub-section
shall not apply in a case, where a notice under Section
153-A, or Section 153-C read with Section 153-A, is
required to be issued in relation to a search initiated
under Section 132 or books of account, other documents
or any assets requisitioned under Section 132-A, on or
before the 31st day of March, 2021:
Provided also that for the purposes of computing the
period of limitation as per this section, the time or
extended time allowed to the assessee, as per show-
cause notice issued under clause (b) of Section 148-A or
the period during which the proceeding under Section
148-A is stayed by an order or injunction of any court,
shall be excluded:
Provided also that where immediately after the exclusion
of the period referred to in the immediately preceding
proviso, the period of limitation available to the
Assessing Officer for passing an order under clause (d)
Writ Tax No.571 of 2026 Page No.41 of 127
of Section 148-A is less than seven days, such remaining
period shall be extended to seven days and the period of
limitation under this sub-section shall be deemed to be
extended accordingly.
Explanation.—For the purposes of clause (b) of this sub-
section, “asset” shall include immovable property, being
land or building or both, shares and securities, loans and
advances, deposits in bank account.
(2) The provisions of sub-section (1) as to the issue of
notice shall be subject to the provisions of Section 151.’.
150 . Provision for cases where assessment is in
pursuance of an order on appeal, etc.—(1)
Notwithstanding anything contained in section 149, the
notice under section 148 may be issued at any time for
the purpose of making an assessment or reassessment
or recomputation in consequence of or to give effect to
any finding or direction contained in an order passed by
any authority in any proceeding under this Act by way of
appeal, reference or revision [or by a Court in any
proceeding under any other law].
(2) The provisions of sub-section (1) shall not apply in
any case where any such assessment, reassessment or
recomputation as is referred to in that sub-section
relates to an assessment year in respect of which an
assessment, reassessment or recomputation could not
have been made at the time the order which was the
subject-matter of the appeal, reference or revision, as
the case may be, was made by reason of any other
provision limiting the time within which any action for
assessment, reassessment or recomputation may be
taken.
*
159 . Legal representatives.—(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 recomputation 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),—
Writ Tax No.571 of 2026 Page No.42 of 127
(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 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.
*
292B. Return of income, etc., not to be invalid on
certain grounds — No return of income, assessment,
notice, summons or other proceeding, furnished or made
or issued or taken or purported to have been furnished
or made or issued or taken in pursuance of any of the
provisions of this Act shall be invalid or shall be deemed
to be invalid merely by reason of any mistake, defect or
omission in such return of income, assessment, notice,
summons or other proceeding if such return of income,
assessment, notice, summons or other proceeding is in
substance and effect in conformity with or according to
the intent and purpose of this Act.
*
Writ Tax No.571 of 2026 Page No.43 of 127
292BB . Notice deemed to be valid in certain
circumstances.—Where an assessee has appeared in any
proceeding or co-operated in any inquiry relating to an
assessment or reassessment, it shall be deemed that
any notice under any provision of this Act, which is
required to be served upon him, has been duly served
upon him in time in accordance with the provisions of
this Act and such assessee shall be precluded from
taking any objection in any proceeding or inquiry under
this Act that the notice was—(a) not served upon him;
or (b) not served upon him in time; or
(c) served upon him in an improper manner:
Provided that nothing contained in this section shall
apply where the assessee has raised such objection
before the completion of such assessment or
reassessment.”
ANALYSIS
7. We have heard the submissions canvassed on
behalf of both the parties and perused the documents as
well as compilation of judgments placed on record.
8. We attach a caveat herein at the onset.
Through the course of the hearing, both sides have relied
on a smorgasbord of judgments of the Supreme Court as
well as High Courts to buttress their respective
arguments. However, we would like to refer to L.C.
53
Quinn –v- Leathem , wherein the House of Lords had
chosen to observe the following:-
“….that every judgment must be read as applicable to
the particular facts proved, or assumed to be proved,
since the generality of the expressions which may be
found there are not intended to be expositions of the
whole law, but governed and qualified by the particular
53 1901 AC 495
Writ Tax No.571 of 2026 Page No.44 of 127
facts of the case in which such expressions are to be
found. The other is that a case is only an authority for
what it actually decides….”
9. Adhering to the principles delineated in L.C.
Quinn (supra), we are of the view that while certain
judgments are merely replication of the principles of the
judgments that have been considered in greater detail
through the course of this judgment, some judgments are
either not relevant or are distinguishable on facts. Ergo,
only the judgments which were absolutely necessary for
deciding this case have been considered and dealt with in
detail so that brevity is not jeopardized.
10. The counsel on behalf of the petitioner mainly
contends that the entire reassessment proceedings
emanating from the issuance of notice under Section 148
of the Act against a deceased person is non est in the
eyes of law and incapable of conferring any jurisdiction
and the revenue cannot sustain the impugned
reassessment proceedings by invoking the saving
provisions of Sections 150, 159, 292B or 292BB of the
Act. Furthermore, it was contended that the department
cannot proceed further with liberty from the High Court
by relying on Section 150 to issue a fresh notice for
reassessment against the legal heir.
Writ Tax No.571 of 2026 Page No.45 of 127
11. Per Contra, the learned counsel appearing on
behalf of respondents vehemently rebutted the
arguments of petitioner and submitted that issuance of
notice in the name of deceased person does not
constitute a jurisdictional defect but a procedural error.
Additionally, it was submitted that notice was issued
against the deceased assessee on the bona fide mistake
that arose due to the fact that return of his income was
filed on the portal in his name and also there was no
intimation of death of assessee by the legal heirs. It was
contended that such a defect was curable in view of
Section 292B and revenue can proceed against the legal
heir. Furthermore, Section 159 of the Act provides the
revenue to proceed against the legal heir for
reassessment of deceased assessee and the factum of
filing a reply to the notice by the legal heir shall be
deemed as valid notice, hence the legal heir cannot take
advantage in terms of Section 292BB of the Act.
Moreover, the issuance of fresh notice under Section 148
is not barred by limitation in terms of Section 150 of the
Act.
12. It is an undisputed fact that the assessee died
on January 7, 2024; Income Tax Return for Assessment
Writ Tax No.571 of 2026 Page No.46 of 127
Year 2023-24 of the deceased assessee was filed on July
30, 2024 by the petitioner in the name of deceased;
notice under Section 148 was issued on March 28, 2025
in the name of deceased assessee; preliminary objection
regarding issuance of notice against a dead person for
the first time was filed by the petitioner on February 2,
2026 in response to notices issued under Section 142(1);
and the Assessment Order was passed on March 24, 2026
in the name of petitioner.
13. One may firstly examine the scheme of the Act
in relation to reassessment proceedings. Sections 147 to
151 deal with the procedure of reassessment. Section
148 mandates the assessing officer to serve a notice on
the assessee to reopen past year’s assessment upon
credible evidence that taxable income has escaped
assessment. Section 142(1) is a notice for inquiry before
assessment to gather information and/or to examine if
there is some discrepancy in filing of return. Section 149
restricts the department to issue a reassessment notice
under Section 148 for income that has escaped
assessment generally capping the window at three years
with extensions upto ten or sixteen years in a galore
evasion. On the contrary, Section 150 allows the
Writ Tax No.571 of 2026 Page No.47 of 127
department to issue a fresh show cause notice beyond
the statutory period prescribed under Section 149 so as
to give effect to a ‘finding’ or ‘direction’ made in the
appellate order, revision, reference or court proceedings.
Section 147 empowers the assessing officer to reopen
assessment proceedings by passing a reassessment
order, if he had ‘reason to believe’ that any income
chargeable to tax has escaped assessment for the
relevant assessment year. Section 159 allows the
department to continue proceedings against the legal
representative of the deceased upon the death of the
assessee.
14. Issue I pertains to validating reassessment
proceedings initiated against a dead person in terms of
Section 159 and issue II deals with curing the defect in
the said notice soliciting Section 292B. Both the issues
are intrinsically linked and are therefore being dealt with
together.
15. The petitioner contends that the notice issued
against a dead person is non est in law and hence void
ab initio . The department cannot take recourse to Section
159 of the Act for continuing against the legal heir by
Writ Tax No.571 of 2026 Page No.48 of 127
fitting the petitioner in the shoes of deceased assessee as
that would amount to acting beyond the statute.
Furthermore, it has been contended that the department
cannot validate the proceedings by curing the defect
under Section 292B as the defect is not merely clerical or
technical but is a jurisdictional error which cannot be
cured. For the aforesaid proposition counsel has placed
reliance on, Alamelu Veerappan (Supra) , Savita
Kapila (Supra), Satendra Kumar (Supra), Shri
Devendra (Supra) , Sumit Balkrishna Gupta (Supra),
Bhupendra Bhikhalal Desai (Supra), ITO v.
Bhupendra Bhikhalal Desai (Supra), Mrs. Vanitha
Gopal Shetty (Supra) and Rajendra Kumar Sehgal
(Supra).
16. Per contra, respondent submits that the notice
was issued to deceased assessee on the bona fide
mistake of department that arose due to filing of Income
Tax Return by the wife of deceased in the name of
deceased via verifying through Aadhaar OTP
authentication. Such a bona fide mistake comes under
the ambit of curable defect in terms of Section 292B and
hence liability for such escaped income can be imposed
upon the legal heirs in accordance with Section 159 of
Writ Tax No.571 of 2026 Page No.49 of 127
the Act. Inter alia , the counsel for the respondents
contends that not intimating the department with regard
to the death of the assessee and filing false verification in
the name of a dead person attracts a penal liability under
Section 277 of the Act. For his aforesaid proposition
counsel has placed reliance on Estate of Late Rangalal
Jajodia (Supra), Sky Light Hospitality LLP (Supra),
Sunil Kumar Sahoo (Supra) , Maharaja of Patiala
(Supra) , Jai Prakash Singh (Supra), Sunil Kumar
Sahoo (Supra), Eastern Coal Co. Ltd. (Supra), Vikram
Sujitkumar Bhatia (Supra), Maj. Gen. Madan Lal
Yadav (Supra), Municipal Committee Katra (Supra),
Chandra Singh (Supra) and Digambar (Supra).
17. We may first examine the judgments cited by
the petitioner in support of his arguments in relation to
the aforesaid two issues.
18. The Madras High Court speaking through T.S.
Sivagnam, J. in Alamelu Veerappan (Supra) vide order
dated June 7, 2018 while concluding that the notice
issued against a dead person is wholly without
jurisdiction that cannot be enforced in law, has observed
that proceedings can be continued against the legal heir if
Writ Tax No.571 of 2026 Page No.50 of 127
the proceedings were initiated during the lifetime of the
deceased assessee and permitted for proceeding against
the legal heir. The relevant paragraphs of the judgment
are quoted hereinbelow:-
“16. The settled legal principle being that a notice issued
in the name of the dead person is unenforceable in law. If
such is the legal position, would the Revenue be justified
in contending that they, having no knowledge about the
death of the assessee, are entitled to plead that the
notice is not defective. In my considered view, the
answer to the question should be definitely against the
Revenue.
17. This court supports such a conclusion with the
following reasons:
Admittedly, the limitation period for issuance of notice for
reopening expired on March 31, 2017. The impugned
notice was issued on March 30, 2017 in the name of the
dead person. On being intimated about the death, the
Department sent the notice to the petitioner - his spouse
to participate in the proceedings. This notice was well
beyond the period of limitation, as it has been issued
after March 31, 2017. If we approach the problem sans
complicated facts, a notice issued beyond the period of
limitation, i.e., March 31, 2017 is a nullity, unenforceable
in law and without jurisdiction. Thus, merely because the
Department was not intimated about the death of the
assessee, that cannot, by itself, extend the period of
limitation prescribed under the statute. Nothing has been
placed before this court by the Revenue to show that
there is a statutory obligation on the part of the legal
representatives of the deceased assessee to immediately
intimate the death of the assessee or take steps to cancel
the PAN registration.”
18. In such circumstances, the question would be as to
whether section 159 of the Act would get attracted. The
answer to this question would be in the negative, as the
proceedings under section 159 of the Act can be invoked
only if the proceedings have already been initiated when
the assessee was alive and was permitted for the
proceedings to be continued as against the legal heirs.
The factual position in the instant case being otherwise,
the provisions of section 159 of the Act have no
application.”
Writ Tax No.571 of 2026 Page No.51 of 127
(Emphasis added)
19. Hon’ble Justice T.S. Sivagnam, scrutinized four
aspects in Alamelu Veerappan (Supra), firstly, with
regard to the issuance of show cause notice under
Section 148 in the name of dead person or against a non-
existent entity, secondly, continuation of existing liability
upon the legal heirs in view of Section 159 after the
death of the deceased assessee, thirdly, with regard to
curing the defect under Section 292B of the Act, and
fourthly, extending period of limitation for issuance of
notice beyond the period prescribed under Section 149 of
the Act.
20. The Madras High Court in the Alamelu
Veerappan (Supra), inter alia has observed the following
in the aforesaid aspects:-
I. The show cause notice under Section 148 of
the Act cannot be issued to a dead person or
against a non-existent entity as such issuing goes
to the root of the matter, which is not a procedural
irregularity but a jurisdictional defect.
II. For imposing liability upon the legal heir of the
deceased in terms of Section 159, notice is required
Writ Tax No.571 of 2026 Page No.52 of 127
to be issued against and in the name of the legal
representative/heir.
III. The issue of limitation is not a curable defect
for the revenue to invoke Section 292B of the Act.
IV. There is no statutory obligation on the part of
the legal representative to intimate about the death
of the assessee and such non-intimation cannot
extend the period of limitation prescribed under
Section 149 of the Act.
21. The Division Bench of the Delhi High Court
constituting Manmohan and Sanjeev Narula, JJ. in Savita
Kapila (Supra) following the decision of Madras High
Court in Alamelu Veerappan (Supra) vide its judgment
dated July 16, 2020 has quashed the notice issued under
Section 148 as well as all consequential
orders/proceedings in pursuant thereto. The relevant
paragraphs of the judgment are quoted hereinbelow:-
“26. In the opinion of this court the issuance of a notice
under section 148 of the Act is the foundation for
reopening of an assessment. Consequently, the sine qua
non for acquiring jurisdiction to reopen an assessment is
that such notice should be issued in the name of the
correct person. This requirement of issuing notice to a
correct person and not to a dead person is not merely a
procedural requirement but is a condition precedent to
the impugned notice being valid in law. (See Sumit
Writ Tax No.571 of 2026 Page No.53 of 127
Balkrishna Gupta v. Asst. CIT (2019) 414 ITR 292(Bom);
(2019) 2 TMI 1209-the Bombay High Court).
27. In Chandreshbhai Jayantibhai Patel v. ITO (2019)
413 ITR 276(Guj); [2019] (1) TMI 353-the Gujarat High
Court has also held (page 290 of 413 ITR) : "the
question that therefore arises for consideration is
whether the notice under section 148 of the Act issued
against the deceased-assessee can be said to be in
conformity with or according to the intent and purposes
of the Act. In this regard, it may be noted that a notice
under section 148 of the Act is a jurisdictional notice,
and existence of a valid notice under section 148 is a
condition precedent for exercise of jurisdiction by the
Assessing Officer to assess or reassess under section 147
of the Act. The want of valid notice affects the
jurisdiction of the Assessing Officer to proceed with the
assessment and thus, affects the validity of the
proceedings for assessment or reassessment. A notice
issued under section 148 of the Act against a dead
person is invalid, unless the legal representative submits
to the jurisdiction of the Assessing Officer without raising
any objection." Consequently, in view of the above, a
reopening notice under section 148 of the Act, 1961
issued in the name of a deceased-assessee is null and
void.
*
30. Section 159 of the Act, 1961 applies to a situation
where proceedings are initiated/pending against the
assessee when he is alive and after his death the legal
representative steps into the shoes of the deceased-
assessee. Since that is not the present factual scenario,
section 159 of the Act, 1961 does not apply to the
present case.
*
32. This court is of the view that in the absence of a
statutory provision it is difficult to cast a duty upon the
legal representatives to intimate the factum of death of
an assessee to the Income-tax Department. After all,
there may be cases where the legal representatives are
estranged from the deceased-assessee or the deceased-
assessee may have bequeathed his entire wealth to a
charity. Consequently, whether PAN record was updated
or not or whether the Department was made aware by
the legal representatives or not is irrelevant. In Alamelu
Veerappan (supra) it has been held "nothing has been
placed before this court by the Revenue to show that
there is a statutory obligation on the part of the legal
Writ Tax No.571 of 2026 Page No.54 of 127
representatives of the deceased-assessee to immediately
intimate the death of the assessee or take steps to
cancel the PAN registration".
*
35. This court is of the opinion that issuance of notice
upon a dead person and non-service of notice does not
come under the ambit of mistake, defect or omission.
Consequently, section 292B of the Act, 1961 does not
apply to the present case.
*
38. This court is also of the view that section 292BB of
the Act, 1961 is applicable to an assessee and not to a
legal representative. Further, in the present case one of
the legal heirs of the deceased-assessee, i.e., the
petitioner, had neither co-operated in the assessment
proceedings nor filed return or waived the requirement of
section 148 of the Act, 1961 or submitted to jurisdiction
of the Assessing Officer. She had merely uploaded the
death certificate of the deceased-assessee. In CIT v. M.
Hemanathan [2016] 384ITR 177(Mad); [2016] (4) TMI
258-the Madras High Court it has been held (page 182 of
384 ITR) : "In the case on hand, the assessee was dead.
It was the assessee's son, who appeared and perhaps
co-operated. Therefore, the primary condition for the
invocation of section 292BB is absent in the case on
hand. Section 292BB is in place to take care of
contingencies where an assessee is put on notice of the
initiation of proceedings, but who takes advantage of
defective notices or defective service of notice on him. It
is trite to point out that the purpose of issue of notice is
to make the noticee aware of the nature of the
proceedings. Once the nature of the proceedings is made
known and understood by the assessee, he should not be
allowed to take advantage of certain procedural defects.
That was the purpose behind the enactment of section
292BB. It cannot be invoked in cases where the very
initiation of proceedings is against a dead person. Hence,
the second contention cannot also be upheld".
(Emphasis added)
22. The Delhi High Court dissected the issue and
has observed the following:-
Writ Tax No.571 of 2026 Page No.55 of 127
I. Absence of valid notice under Section 148
strikes at the very root of the Assessing Officer’s
jurisdiction to proceed with the reassessment and
consequently, vitiates the entire proceedings
rendering them as null and void unless the legal
representative submits to the jurisdiction of the
Assessing Officer without raising any objection.
II. Issuance of notice against dead person and
non service of notice do not come under the ambit
of mistake, defect or omission invoking Section
292B of the Act.
III. Section 159 is attracted when the assessee is
alive and after his death the legal representative
steps into the shoes of the deceased-assessee.
IV. Assumption of jurisdiction qua the petitioner
for the relevant assessment years beyond the
period prescribed, renders the proceedings barred
by the limitation in view of Section 149 of the Act.
V. A duty of intimation of death cannot be cast
upon the legal representative/heir in absence of
statutory provision.
Writ Tax No.571 of 2026 Page No.56 of 127
VI. Section 292BB is applicable to the assessee not
to a legal representative.
The observation related to Section 292B and Section
292BB will be dealt with a little later while analysing
Issue II and III respectively.
23. One may further look into another Division
Bench judgment of the Bombay High Court constituting
Akil Kureshi and M.S. Sanklecha, JJ. in Sumit
Balkrishna Gupta (Supra) wherein the court had
quashed the show cause notice issued under Section 148
of the Act against a dead person as well as further
proceedings pursuant thereto being as invalid and not
tenable in law. The relevant paragraphs of the judgment
are quoted hereinbelow:-
“7. The issue of a notice under section 148 of the Act is a
foundation for reopening of assessment. The sine qua
non for acquiring jurisdiction to reopen an assessment is
that such notice should be issued in the name of the
correct person. This requirement of issuing notice to a
correct person and not to a dead person is not merely a
procedural requirement but is a condition precedent to
the impugned notice being valid in law. Thus, a notice
which has been issued in the name of the dead person is
also not protected either by the provisions of section
292B or 292BB of the Act. This is so as the requirement
of issuing a notice in the name of correct person is the
foundational requirement to acquire jurisdiction to
reopen the assessment. This is evident from section 148
of the Act, which requires that before a proceeding can
be taken up for reassessment, a notice must be served
upon the assessee. The assessee on whom the notice
Writ Tax No.571 of 2026 Page No.57 of 127
must be sent must be a living person, i.e., legal heir of
the deceased assessee, for the same to be responded.
This in fact is the intent and purpose of the Act.
Therefore, section 292B of the Act cannot be invoked to
correct a foundational/substantial error as it is meant so
as to meet the jurisdictional requirement. Therefore,
both the impugned notice dated March 29, 2018 and the
impugned order dated November 13, 2018 are quashed
and set aside. It is made clear that this order will not
prohibit the Revenue from issuing a fresh notice for
reassessment, if requirement of section 147/148 of the
Act are satisfied, including the limitation period therein.”
(Emphasis added)
24. The Bombay High Court in Sumit Balkrishna
(Supra) has dealt with a situation wherein the petitioner
after the death of deceased has registered himself as the
legal heir and filed return in the name of deceased
assessee. The court reiterated the jurisdictional
requirement of notice under Section 148 of the Act and
has observed that such jurisdictional requirement is a
foundational prerequisite which cannot be cured by
invoking Section 292B of the Act.
25. The Division Bench of the Gujarat High Court
constituting J.B. Pardiwala and Ilesh J. Vohra, JJ. in
Bhupendra Bhikhalal Desai (Supra) speaking through
Justice Pardiwala has held that want of a valid notice
affects the jurisdiction of the Assessing Officer to proceed
with the reassessment that cannot be cured under
Writ Tax No.571 of 2026 Page No.58 of 127
Section 292B. The relevant paragraphs of the judgment
are quoted hereinbelow:-
“23. The following principles are discernible from the
above referred judgment of this court :
“(i) The issuance of the notice to a dead assessee is not
a mere technical defect which can be corrected under
section 292B of the Act. The issuance of the notice to a
dead assessee and the consequent proceedings pursuant
thereto would be without jurisdiction and, therefore, null
and void.
(ii) The want of a valid notice affects the jurisdiction of
the Assessing Officer to proceed with the assessment
and thus, affects the validity of the proceedings for
assessment or reassessment. A notice issued under
section 148 of the Act against a dead person is invalid,
unless the legal representative submits to the
jurisdiction of the Assessing Officer without raising any
objection.”
24. We are of the view that the same principle as
referred to above would apply even to a notice issued to
a dead assessee under section 153C of the Act. It is not
in dispute that the legal heir of late Bhupendrabhai
Desai had not participated in the proceedings. All that
the legal heir of late Bhupendrabhai Desai did was to
inform the Assessing Officer about the death of his
father and requested to drop the proceedings. It is true
that although the father passed away in the year 2017,
yet the legal heir did not inform the Department up to
October, 2019. However, at the same time, we should
not overlook the fact that even after coming to know
about the demise of late Bhupendrabhai, the
Department could have issued a valid notice to the legal
heir as the period of limitation of 21 months had not
expired. We fail to understand what prevented the
Department from issuing a valid notice to the legal heir
within the prescribed time period.”
26. The aforesaid judgment of Bhupendra
Bhikhalal Desai (Supra) went in appeal before the
54
Supreme Court and the same got dismissed.
54 Special Leave to Appeal (C) No. 13061 of 2021
Writ Tax No.571 of 2026 Page No.59 of 127
27. The judgment of the Karnataka High Court in
Mrs. Vanitha Gopal Shetty (Supra) penned by S. Sunil
Dutt Yadav, J. wherein the court while dealing with the
issue of invoking Section 159 of the Act has held that the
proceedings ought to have been taken against the legal
representatives of deceased at the first instance for
invoking Section 159 of the Act for proceeding against
the legal heir. The relevant paragraphs of the judgment
are quoted hereinbelow:-
“13. It becomes clear that insofar as the proceedings
against an assessee who is alive at the time of initiation
of proceedings, the same proceedings could be
continued as against his legal representatives from the
stage at which it stood on the date of death of the
deceased. Insofar as the right of the revenue to initiate
proceedings as regards to the deceased assessee,
Section 159(2)(b) permits proceedings to be initiated
against the legal representatives as regards all
proceedings which could have been taken against the
deceased if he had survived.
14. In the present facts, admittedly, the proceedings
are initiated under Section 148 for reassessment
relating to escapement of income of late Kurkal Gopal
Shetty and such proceedings as has been initiated in
the year 2018 by when Kurkal Gopal Shetty had already
died (on 11.11.2014). The proceedings in terms of
Section 159(2)(b) ought to have been taken against the
legal representatives of late Kurkal Gopal Shetty at the
first instance. It ought to be noted that the period
allowable for initiating the proceedings under Section
148 is the period prescribed under Section 149(1) (b)
which position is not in dispute and accordingly,
proceedings ought to have been initiated as on
31.03.2018.
15. The question as to whether proceedings initiated
against the deceased Kurkal Gopal Shetty was sufficient
to continue proceedings of reassessment as regards the
legal representatives is a matter that requires to be
Writ Tax No.571 of 2026 Page No.60 of 127
answered. The learned counsel for the revenue would
contend that the concept of abatement cannot be
extended to assessment proceedings and where the
original assessee has died, the proceedings against his
legal representatives would be good in law as made out
under Section 159(2) of the Act as well as in light of the
definition of assessee under Section 2(7)(b) read with
Section 159 is a matter that also requires consideration.
16. There is no dispute as regards to the general
proposition that proceedings against an assessee would
continue even after his death as against his legal
representatives and there would be no abatement of
such proceedings. However, in the present case, the
question is as regards to the initiation of proceedings
under Section 148 vis-à-vis the legal representatives of
the deceased Kurkal Gopal Shetty. As noticed earlier,
notice issued at the first instance on 28.03.2018 is as
regards Kurkal Gopal Shetty and at that relevant point
of time, the said assessee was dead. It comes out from
the subsequent proceedings that the revenue, upon
being informed by the 2nd petitioner through an e-mail
on 30.05.2018 that Kurkal Gopal Shetty had died, has
issued notice to the legal representatives on 19.11.2018
and on 21.12.2018 under Section 142 and hence, in
effect, there was no notice to the petitioners with
respect to the initiation of proceedings for reassessment
under Section 148. The proceedings under Section 142
being a part art of the re-assessment proceedings, the
starting point for initiation of proceedings under Section
148 is the issuance of notice, which notice to be valid is
required to be initiated within the time prescribed under
Section 149(1)(b). Notice issued against Kurkal Gopal
Shetty on 28.03.2018 being against a dead person, at
the very inception would not be a tenable notice for
initiation of proceedings under Section 148 as regards
the legal representatives insofar as any proceedings
against the legal representatives are to be governed by
Section 159. While Section 159(2)(a) provides for
continuation of proceedings against the legal
representatives when initiated against the assessee
when he was alive. Clearly Section 159(2)(b) would
require a separate notice to be issued under Section
148 within the time prescribed under Section 149(1)(b)
as against the legal proceedings are initiated beyond
the time prescribed under Section 149(1)(b) such
proceedings would not be valid.”
Writ Tax No.571 of 2026 Page No.61 of 127
28. Now we will examine the judgments cited by
the counsel for the respondents in relation to Issue I and
Issue II.
29. A pre-independence era judgment of Division
Bench of the Bombay High Court in Maharaja of Patiala
(Supra) penned by Beaumont, C.J. and Kania, J. in
separate concurring decisions while answering a
reference made by the tribunal has considered the
question regarding certain technical defects alleged to
exist in the order of assessment of Late Maharaja of
Patiala. The court has specifically dealt with Section 24B
of the Income Tax Act, 1922 which is akin to Section 159
of the Act. The relevant paragraphs of the judgment are
quoted hereinbelow:-
“2. The late Maharaja of Patiala died on March 23, 1938,
and the papers relating to the assessment on him were
sent by the Commissioner of Income-Tax of the Punjab
to the Commissioner of Income-Tax, Bombay, after the
date of the Maharaja's death because of the decision of
the Allahabad High Court, to which I will refer presently,
which suggested that the estate of the late Maharaja
could not be assessed unless a statutory agent were
appointed under Section 43 of the Indian Income-Tax
Act. After the papers reached Bombay, some
correspondence took place between the Income-Tax
Officer, Bombay, and a gentleman who is described as
the Foreign Minister of the Patiala State, and eventually,
in November, 1938, two notices were served on His
Highness the Maharaja of Patiala, which in terms were
issued under Section 22(2) of the Indian Income-Tax
Act, one for the year 1937, and the other for the year
1938, requiring the Maharaja (that is, the present
Writ Tax No.571 of 2026 Page No.62 of 127
Maharaja) to make a return of his income. Returns were
made of the late Maharaja's income, and on September
16, 1940, assessment orders for the respective years
1937-38 and 1938-39 were passed. In those orders the
name of the assessee is stated to be “His Highness
Maharajadhiraj Sir Bhupindra Singh,” that is, the late
Maharaja, and subsequently notices to pay were served
on the Foreign Minister on behalf of the late Maharaja in
the case of one notice, and of the present Maharaja in
the case of the other.
*
14. In view of that answer, the assessment is illegal,
and the first question is really of only academic interest.
The first question is:
“Whether in the circumstances found by the Tribunal in
its order under Section 33, the assessment was not
made in accordance with the provisions of Section 24B
of the Indian Income-Tax Act and is for that reason
invalid?”
15. I observe in passing, with regret, that it seems from
the wording of this question and others which have
been submitted to us by the Tribunal that the Tribunal
are adopting the practice followed by Subordinate
Judges of framing issues in the negative, a practice
which I have often condemned as inconvenient. A
simple question “Is the assessment valid” can be
answered “Yes” or “No.” If the question be “Is the
assessment not valid” or “not invalid,”? a simple answer
either in the affirmative or in the negative becomes
ambiguous, and one has to look at the reasons to see
what is meant. The question here is whether the
assessment was not made in accordance with the
provisions of Section 24B. If the question is answered in
the negative, thus introducing a double negative, would
it mean that the assessment was made in accordance
with the section? I hope that the Tribunal will abandon
this practice of stating questions in the negative before
it becomes a habit. However, I take the question as
being whether the assessment was made in accordance
with the provisions of Section 24B. Now, Section 24B
deals with the assessment of a deceased person. In this
case the person to be assessed was the late Maharaja,
who had died before he was served with any notice
under Section 22, and, therefore, the provisions of
Section 24B (2) apply, and the Income-Tax Officer was
entitled to serve on the executor, administrator or other
legal representative of the deceased Maharaja a notice
under Section 22(2) or under Section 34 as the case
Writ Tax No.571 of 2026 Page No.63 of 127
might be, and then proceed to assess the total income
of the deceased Maharaja as if such executor,
administrator or other legal representative were the
assessee. As observed by the President of the Tribunal
in his judgment, the Income-Tax Officer made no
attempt to observe the provisions of that sub-section.
He served the notice on the present Maharaja, without
showing in what capacity. But the Tribunal have found,
as a fact, that the present Maharaja is the legal
representative of the deceased Maharaja, and although
it would obviously have been better so to describe him
in the notice, I am not prepared to say that the notice
was bad, if it was served on the legal representative,
merely because it omitted to state that it was served in
that capacity. It should have been stated that it was
served on the legal representative of the late Maharaja,
and that the return required was of the late Maharaja's
income. It was not so stated, and the present Maharaja
himself may have had taxable income for the years in
question; but I think there is a good deal of force in the
contention of the Tribunal that any irregularities in this
respect were waived by the Maharaja, because returns
of the late Maharaja's income were made by the Foreign
Minister on behalf of the Maharaja, and then
subsequently corrections were made in the assessment
at the instance of the Maharaja. There is no doubt that
the present Maharaja knew perfectly well that what was
being assessed was the income of his predecessor.
16. Then when one comes to the actual assessment, it
is made on the deceased Maharaja. It is, of course,
wholly irregular to assess a deceased person. The
assessment should have been made on the legal
representative in respect of the income of the deceased.
However, there again, the Patiala authorities seem to
have accepted the view that it was an assessment made
on the agent in respect of the income of the deceased
person, because they have actually appealed against
the assessment, and if the assessment was an
assessment on a dead man, it was obviously a nullity,
and there is nothing to appeal from.”
(Emphasis added)
30. In Estate of Late Ranglal Jajodia (Supra),
the Constitution Bench of the Supreme Court speaking
through A.N. Ray, J., in an appeal arising on a certificate
Writ Tax No.571 of 2026 Page No.64 of 127
to appeal against a judgment of Madras High Court on a
reference has interpreted the second proviso to Section
34(3) that is akin to Section 150 whereby the
reassessment is saved from the bar of limitation as well
as whether legal representative is an assessee entitled to
benefit of Section 34(3). The relevant paragraph of the
judgment is quoted hereinbelow:-
“15. Counsel for Aruna Devi contended that the
expression “any person” occurring in the second proviso
to Section 34(3) of the Act could not be referable to a
stranger and that Aruna Devi was a stranger. In support
of that proposition reliance was placed on the decision of
this Court in S.C. Prashar v. Vasantsen Dwarkadas [49
ITR 1] . The facts of that case are entirely different and
are of no assistance for the reason that in the present
appeals Aruna Devi was impleaded as a party to the
assessment proceedings as a legal representative of
Rangalal Jajodia. The words “any person” were
construed in Murlidhar's case to be confined to a person
intimately connected with the assessment year under
appeal. It was said in that case that “modification or
setting aside of assessment made on a firm, joint Hindu
family, association of persons for a particular year may
affect the assessment for the said year on a partner or
partners of the firm, member or members of the Hindu
undivided family or the individual, as the case may be.
In such cases though the latter are not so nominee
parties to the appeal, their assessments depend upon
the assessments on the former. The said instances are
only illustrative. It is not necessary to pursue the matter
further. We would, therefore, hold that the expression
‘any person’ in the setting in which it appears must be
confined to a person intimately connected in the
aforesaid sense with the assessments of the year under
appeal”. In the present appeals the finding was that the
assessment was made on Aruna Devi but no notice was
given to her. The necessary direction was therefore
given that notice should be given to her. Aruna Devi was
heard and the assessment was made. She was not
merely intimately connected with the assessment. She
Writ Tax No.571 of 2026 Page No.65 of 127
was in fact an assessee. Therefore, the second proviso
to Section 34(3) applied.
16. We are therefore of opinion that the second proviso
to Section 34(3) of the Act applies to the present
appeals because, first the proceedings against Rangalal
Jajodia commenced on filing of returns before the
Income Tax authorities; secondly, the assessment
proceedings continued after the death of Rangalal
Jajodia against the legal representatives Shankerlal
Jajodia and Aruna Devi; thirdly, the assessment
proceedings on being set aside and not cancelled
pursuant to the appeal filed by Shankerlal Jajodia on the
ground that notice was not given to Aruna Devi were
continued, and, fourthly, the setting aside of the
assessment was only on the ground that notice was not
given to Aruna Devi and therefore the finding and
direction was vital to the assessment proceedings. The
High Court was in error in holding that the assessment
proceedings were barred by limitation.
17. The other question is as to the applicability of
Section 24-B of the Act. Counsel on behalf of Aruna Devi
repeated the contentions advanced in the High Court
that Section 24-B does not cover the entire field of
procedure to be followed in assessing the income of the
deceased person. The High Court held that Section 24-B
of the Act applied but Aruna Devi should have been
given opportunities to object to the assessment by
repeating the entire procedure of Section 24-B of the Act
as during the lifetime of the deceased. Counsel for the
Revenue Authority did not impeach the conclusion of the
High Court that in relation to Aruna Devi the provisions
of Section 24-B of the Act were to be followed de novo.
We are of opinion that the High Court correctly held that
Section 24-B of the Act applies to the present case. The
third sub-section of Section 24-B deals with a case of a
person dying after having furnished a return. Further, in
the present case the Income Tax Officer had reason to
believe the return to be incorrect or incomplete, and he
called upon Rangalal to furnish evidence. The Act further
confers power on the Revenue Officer to make the
assessment and determine the tax payable by the
deceased on the basis of the assessment and for that
purpose to issue appropriate notice which would have
had to be served upon the deceased had he survived
and in that behalf to require from the executor,
administrator or other legal representative of the
deceased person any accounts, documents or other
evidence which he might under the provisions of
Sections 22 and 23 require from the deceased person.
Writ Tax No.571 of 2026 Page No.66 of 127
These provisions adequately answer the contention of
the appellant Aruna Devi.
18. For these reasons we hold that the High Court was in
error in holding that the second proviso to Section 34(3)
of the Act did not save the assessments and therefore
we set aside the judgment of the High Court and allow
the appeals of the Revenue authority in CAs Nos. 2336-
2339 of 1966.”
31. The aforesaid judgment of Supreme Court in
Estate of Late Ranglal Jajodia (Supra) deals with the
application of 34(3) akin to Section 150 to the peculiar
facts of the case therein and procedure to be followed
against the legal heir (Aruna Devi). Therefore, this case
does not support the proposition of the counsel for the
respondent for validating irregularity in defective notice.
32. The Supreme Court in Jay Prakash Singh
(Supra) speaking through B.P. Jeevan Reddy and S.B.
Majumdar, JJ. has considered the judgment of Estate of
Late Ranglal Jajodia (Supra) and had approved
Maharaja of Patiala (Supra). The relevant paragraphs
of the judgment are quoted hereinbelow:-
“11. We are of the opinion that the High Court was not
right in holding in the above circumstances that the
assessment orders made are null and void. They are
not. At the worst, they are defective proceedings — or
irregular proceedings — as has been rightly held by the
Appellate Assistant Commissioner and the tribunal. In
Chatturam v. CIT [(1947) 15 ITR 302 (FC)] , it has been
held by the Federal Court that the liability to pay the tax
arises by virtue of Sections 3 and 4 of the Indian Income
Tax Act, 1922 (charging sections) and that Section 22
and other sections of the said Act are merely machinery
Writ Tax No.571 of 2026 Page No.67 of 127
provisions to determine the quantum of tax. The
following observations are apposite:
“ The income tax assessment proceedings
commence with the issue of a notice. The issue
or receipt of a notice is not, however, the
foundation of the jurisdiction of the Income
Tax Officer to make the assessment or of the
liability of the assessees to pay the tax. It may
be urged that the issue and service of a notice
under Section 22(1) or (2) may affect the
liability under the penal clauses which provide
for failure to act as required by the notice. The
jurisdiction to assess and the liability to pay
the tax, however, are not conditional on the
validity of the notice. Suppose a person, even
before a notice is published in the papers
under Section 22(1), or before he receives a
notice under Section 22(2) of the Income Tax
Act, gets a form of return from the Income Tax
Office and submits his return, it will be futile to
contend that the Income Tax Officer is not
entitled to assess the party or that the party is
not liable to pay any tax because a notice had
not been issued to him. The liability to pay the
tax is founded in Sections 3 and 4 of the
Income Tax Act, which are the charging
sections. Section 22 etc. are the machinery
sections to determine the amount of tax.”
*
15. The facts in this case are telling. They are: Rangalal
Jajodia filed his income tax return for the Assessment
Years 1942-43 and 1943-44 under the Income Tax Act
as well as under the Excess Profits Tax Act, 1940. Before
the assessments were completed, he died (on 11-1-
1946). Rangalal had a son, Shankar Lal, by his
predeceased wife. He married a second time and had
children from the second wife, Aruna Devi. Rangalal
executed a Will totally disinheriting Shankar Lal and
appointing Aruna Devi and another as executors of his
Will. The Income Tax Officer, probably unaware of the
Will, gave notice to Shankar Lal, who objected that he is
not the legal representative of the deceased and that the
second wife (Aruna Devi) and the other executor are the
proper persons to be notified. The Income Tax Officer
called for a copy of the Will but it was not produced. The
Income Tax Officer thereupon completed the assessment
describing the assessee as “the estate of late Shri
Rangalal Jajodia by legal heirs and representatives Shri
Shankar Lal Jajodia, son of Rangalal Jajodia, Smt Aruna
Writ Tax No.571 of 2026 Page No.68 of 127
Devi, wife of Rangalal Jajodia and her children”. Appeals
were preferred by the second wife, Aruna Devi,
contending inter alia that the assessments having been
made without notice to her or the other executor were
illegal and invalid. This plea was rejected by the
Appellate Assistant Commissioner and the tribunal, who
remitted the matters to the Income Tax Officer to
complete the assessments after notice to Aruna Devi.
The High Court too rejected the said contention
whereupon the matter was brought to this Court, which
held that absence of notice to Aruna Devi makes the
assessment merely defective but not null and void. It is
in this connection that the aforesaid observation was
made. This Court sustained the direction given by the
Appellate Assistant Commissioner to the Income Tax
Officer to make fresh assessment on Aruna Devi in
accordance with the provisions of the Act. This decision,
in our opinion, is sufficient to reject the assessee's
contention herein. If an assessment made with notice to
Shankar Lal (who was not really the legal representative
of the deceased Rangalal) and without serving notice
upon the lawful legal representatives (Aruna Devi, the
other executor or Aruna Devi's children) — that too,
despite the objection of Shankar Lal that he is not the
legal representative and that notice must be sent to
Aruna Devi etc., who are the legal representatives of the
deceased Rangalal — is only ‘defective’ and not null and
void, it would be rather odd to contend that assessments
made on the basis of returns filed by one of the legal
representatives (disclosing the total income received by
the deceased) is null and void on the ground that notices
were not sent to other legal representatives. The
principle that emerges from the above decision is that
an omission to serve or any defect in the service of
notices provided by procedural provisions does not
efface or erase the liability to pay tax where such
liability is created by distinct substantive provisions
(charging sections). Any such omission or defect may
render the order made irregular — depending upon the
nature of the provision not complied with — but certainly
not void or illegal.”
(Emphasis added)
33. In Maharaja of Patiala (Supra), the court
while dealing with the issue of validity of such notices,
adopted a liberal and substance-oriented interpretation
Writ Tax No.571 of 2026 Page No.69 of 127
and held that mere technical defects in the notice would
not invalidate the assessment proceedings when the
substance and purpose of the notice were fully
understood by the assessee's representative. The Court
further observed that the Foreign Minister, who was
managing the affairs of the deceased Maharaja, clearly
understood that the notices related to the income and
assessment was issued for late Maharaja and had in fact
participated in the proceedings by filing returns and
pursuing appeals. The Court specifically held that
although it would have been more proper to describe the
noticee expressly as legal representative, the defect was
merely technical and not fatal.
34. We are of the view the ratio laid down in
Maharaja of Patiala (Supra) is not applicable to the
facts of the present case as in that case return and
appeal were filed by foreign minister of present Maharaja.
However, both the concurring judges were at consensus
ad idem on the proposition that the assessment on a
dead person is obviously a nullity and for the same
appeal does not lie. Though this judgment was relied
upon by the counsel for the respondent but the per
curium was in favour of assessee.
Writ Tax No.571 of 2026 Page No.70 of 127
35. The Supreme Court in Estate of Rangalal
(Supra) has validated the assessment proceedings in
view of Section 24B but we are of the opinion that the
case is distinguishable from the present case as the
proceedings in the former case commenced during the
lifetime of the deceased and continued after death.
Moreover, the return was filed and notices were issued on
the deceased during his lifetime, thereby making the
assessment proceedings against legal representative
valid.
36. Furthermore, in Jai Prakash Singh (Supra)
quoted above, the Supreme Court holding in the peculiar
facts of the case has held in favour of revenue, observing
that failure to serve notice upon all the legal
representatives within the period of limitation of a
deceased assessee does not automatically render the
assessment proceedings void ab initio , particularly where
the legal representatives who were served had
participated in the proceedings without prejudice. The
Court observed that such defect in service of notice is
essentially a procedural irregularity and not a
jurisdictional nullity, unless prejudice is demonstrated.
Writ Tax No.571 of 2026 Page No.71 of 127
37. The judgment in Jay Prakash Singh (Supra)
is in a different periphery from the present one. It
examines the situation where the notice was not served
on all the legal heirs but the order mentions the names of
all the legal heirs. Moreover, some of the legal heirs have
filed return, appeared and produce relevant books and
accounts in response to notice under Section 142 unlike
the present situation where the petitioner has filed
preliminary objection after receiving notice under Section
142 of the Act. Accordingly, the present one is clearly
distinguishable on facts from Jay Prakash Singh
(Supra) wherein the service of notice was held to be
defective and hence was cured.
38. The Supreme Court in Skylight Hospitality
LLP (Supra) has held as follows:-
“In the peculiar facts of this case, we are convinced that
wrong name given in the notice was merely a clerical
error which could be corrected under Section 292-B of
the Income Tax Act. The special leave petition is
dismissed. Pending applications stand disposed of.”
39. In so far as the judgment of Skylight
Hospitality LLP (Supra) is concerned, the Supreme
Court holding in favour of revenue in the peculiar facts of
the case has held that wrong name given in the notice
was merely a clerical error which could be corrected
Writ Tax No.571 of 2026 Page No.72 of 127
under section 292B as the Skylight Hospitality LLP, a
limited liabilities partnership had taken over and acquired
the rights and liabilities of M/s Skylight Hospitality (P)
limited. Therefore, the decision in the case of Skylight
Hospitality (Supra) is clearly distinguishable on facts
and it does not support the case of revenue.
40. Furthermore, the judgment of Orissa High
Court in Sunil Kumar Sahu (Supra) relied upon by the
respondents deals with the distinction between issuance
of notice and service of notice and the facts of the case
clearly reveals that the notice was issued on the assessee
who was alive within the limitation period even if the
service of notice took place subsequently. Under such
circumstances, the court has held that as long as service
has taken place subsequently and the notice has been
issued within the period of limitation, there would be no
question of lack of jurisdiction on the part of the
assessing officer. These facts are in complete
contradiction to the present case wherein the notice was
issued upon a dead person.
41. The judgment of the Madras High Court in
Gowthaman S (Supra) relied upon by the respondents,
Writ Tax No.571 of 2026 Page No.73 of 127
delivered by a Single Judge is in our view not the correct
view in law as the same holds that proceedings against
the dead person would be covered under Section 159(2)
(b) of the Act. The reasoning therein is based on the fact
that Section 159(3) of the Act makes it clear that the
legal representative of the deceased shall for the
purposes of the Act be deemed to be an assessee. The
court therein upon examining Section 159 has come to
the conclusion that if the petitioner has not taken any
steps to inform the department about the death of the
deceased assessee, the department can issue notice upon
the dead assessee within the period of limitation and
such issue of reassessment proceedings would be valid in
law and the legal representative would be liable to
participate in proceedings and face the consequences
thereof. In our view, this interpretation would expand the
scope of Section 159(2)(b) and allow the issue of
reassessment notice on a dead person. In our view,
Section 159(2)(b) only allows proceedings to be initiated
against the legal representative within the time limitation
provided. The sub-clause does not allow issue of a show
cause notice on the dead assessee. The deeming
provision under section 159(3) would only allow the
Writ Tax No.571 of 2026 Page No.74 of 127
revenue to issue notice under section 159(2)(b) as the
legal representative would be deemed to be assessee. In
our view, treating the deeming provision as an enabling
provision to issue reassessment notice on the dead
person and continue the same against the legal
representative would amount to adding words to the
statute or/and interpreting the statute in a broader and
liberal manner. Such an interpretation in taxing statutes
is not allowed keeping in view Article 265 of the
Constitution of India and the interpretation of taxing as
held in a catena of the Supreme Court judgments that
have been discussed in greater detail in issue IV.
42. The Division Bench of the Delhi High Court in
55
Spice Entertainment Ltd. v. CST had held that
framing of assessment against a non-existent
entity/individual is impermissible and such defect cannot
be cured. The relevant paragraphs of the judgment are
quoted hereinbelow:-
“3. In this backdrop, the question that arises for
consideration is as to whether the assessment in the
name of a company which had been amalgamated and
had been dissolved with the said amalgamating
company will be null and void or whether framing of
assessment in the name of such a company is a mere
procedural defect which can be cured. The appeals
55 2011 SCC OnLine Del 3210
Writ Tax No.571 of 2026 Page No.75 of 127
were, thus, finally admitted and heard on the following
questions of law:
“( i ) Whether on the facts and in the
circumstances of the case, the Tribunal
erred in law in holding that the action of the
Assessing Officer in framing assessment in
the name of “Spice Corp Ltd”, after the said
entity stood dissolved consequent upon its
amalgamation with Mcorp (P) Ltd. w.e.f 1-
7-2003, was a mere “procedural defect”?
( ii ) whether on the facts and in the
circumstances of the case, the Tribunal
erred in law in holding that in view of the
provisions of Section 292B of the Act, the
assessment, having in substance and effect,
been framed on the amalgamated company
which could not be regarded as null and
void?”
*
13. The Punjab & Haryana High Court stated the effect
of this provision in CIT v. Norton Motors , 2004 SCC
OnLine P&H 1276 : (2005) 275 ITR 595 : 275 ITR 595
in the following manner:
“A reading of the above reproduced
provision makes it clear that a mistake,
defect or omission in the return of income,
assessment, notice, summons or other
proceeding is not sufficient to invalidate an
action taken by the competent authority,
provided that such return of income,
assessment, notice, summons or other
proceeding is in substance and effect in
conformity with or according to the
provisions of the Act. To put it differently,
Section 292B can be relied upon for
resisting a challenge to the notice, etc. only
if there is a technical defect or omission in
it. However, there is nothing in the plain
language of that section from which it can
be inferred that the same can be relied
upon for curing a jurisdictional defect in the
assessment notice, summons or other
proceeding. In other words, if the notice,
summons or other proceeding taken by an
authority suffers from an inherent lacuna
affecting his/its jurisdiction, the same
Writ Tax No.571 of 2026 Page No.76 of 127
cannot be cured by having resort to Section
292B.
*
16. When we apply the ratio of aforesaid cases to the
facts of this case, the irresistible conclusion would be
provisions of Section 292B of the Act are not applicable
in such a case. The framing of assessment against a
non-existing entity/person goes to the root of the
matter which is not a procedural irregularity but a
jurisdictional defect as there cannot be any assessment
against a “dead person”.”
(Emphasis added)
43. The aforesaid judgment of the Delhi High Court
was affirmed by the Supreme Court in CIT v. Spice
56
Enfotainment Ltd. by dismissing the appeal being
devoid of merits.
44. If the show cause notice is issued upon the
legal representative within the time period prescribed the
notice would be valid, otherwise the same would be liable
to be fail. This proposition has been supported by the
judgments in Alamelu Veerappan (Supra), Savita
Kapila (Supra), Shri Devendra (Supra), Bhupendra
Bhikhalal Desai (Supra) and Mrs. Vanitha (Supra).
45. All the other judgments cited by the counsel for
respondents are patently distinguishable from the present
case, and hence, cannot come to the rescue of the
respondent with regard to the second issue.
56 (2020) 18 SCC 353
Writ Tax No.571 of 2026 Page No.77 of 127
46. Section 159 of the Act, 1961 applies to a
situation where proceedings are initiated/pending against
the assessee when he was alive and after his death the
legal representative steps into the shoes of the deceased-
assessee.
47. The scheme of Section 159(2) operates in two
distinct fields: Section 159(2)(a) operates where
proceedings have already been initiated against the
deceased before his death and are thus deemed to have
been taken against the legal representative, and may be
continued from the stage they stood on the date of
death; and Section 159(2)(b) where proceedings which
could have been taken against the deceased if he had
survived may be taken against the legal representative,
meaning fresh proceedings must be initiated in the name
of the legal representative, not in the name of the dead
person.
48. As has been clearly articulated, after the death
of the assessee, proceedings must be initiated against
the legal heirs to treat the legal heirs as deemed
assessees. Any notice issued in the name of a dead
person cannot make the legal heirs binding unless a
Writ Tax No.571 of 2026 Page No.78 of 127
proper notice is issued on the legal heirs within limitation
for liability of deceased assessee.
49. The revenue's invocation of Section 159 to
validate a notice issued after the death of the assessee is,
therefore, wholly misconceived. Section 159 presupposes
a valid foundational notice issued during the lifetime of
the assessee. Where the initiating notice itself is void,
Section 159 has no substratum to operate upon. The
correct course, as mandated by Section 159(2)(b), was
to issue a fresh notice within limitation directly upon the
legal representative which was admittedly never done in
the present case.
50. Upon perusal scheme of Section 159 of the Act
as well as judgments of the High Courts in Alamelu
Verrappan (Supra), Savita Kapila (Supra), Devendra
(Supra), Bhupendra Bhikalal Desai (Supra) and Mrs.
Vanitha Gopal Shetty (Supra) as well as the judgment
of the Supreme Court in Spice Infotainment (Supra)
and Bhupendra Bhikhalal (Supra), we may
unequivocally hold that notice under Section 148 of the
Act against a dead person is void ab initio rendering all
the proceedings pursuant thereto as null and void.
Writ Tax No.571 of 2026 Page No.79 of 127
Moresoever, stepping the legal representative/heir into
the shoes of the deceased assessee for continuing
proceedings, initiated against the deceased subsequent to
his death cannot be taken recourse to under Section 159.
If the proceedings were not initiated during the lifetime of
the deceased and the notice was issued against the
assessee subsequent to his death then the proceedings in
terms of Section 159 cannot be continued against the
legal representative/heir of the deceased. For proceeding
against the legal representative of the deceased the
notice under Section 148 ought to have been issued
against the legal representatives of deceased assessee at
the first instance within limitation. Since, the statute does
not provide for intimation of death of deceased to the
department, such duty with regard to factum of death
cannot be cast upon the legal representative. Accordingly,
the first issue is answered in the negative.
51. The judgments of Devendra (Supra), Alamelu
Veerappan (Supra), Savita Kapila (Supra),
Bhupendra Bhikalal Desai (Supra), Spice
Enfotainment Ltd. (Supra) and Skylight Hospitality
(Supra) have already been discussed while dealing with
the first issue wherein it has been consistently held that
Writ Tax No.571 of 2026 Page No.80 of 127
Section 292B, provides for curing the defect of the notice
issued if the notice is in substance and in conformity with
the intent and purpose of the Act. Indubitably, the
issuance of notice against a dead person, in substance is
not in conformity with the provision of Section 148 which
is the foundation for reopening an assessment and
jurisdiction can only be acquired, if the notice is issued to
the correct person. Issuance of notice to a dead person is
not merely a procedural error but a jurisdictional error
that renders the entire proceedings void.
52. The revenue cannot validate a notice under
Section 148 against a dead person by invoking Section
292B as it is not a mere procedural defect. Ergo, the
notice issued against a dead assessee is void ab initio
that cannot be cured taking recourse to Section 292B. We
do not agree with the submission of the respondent that
notice addressed to a dead person can be cured by
substituting the name of deceased assessee with his legal
heir. Accordingly, the second issue is also answered in the
negative.
53. Now advancing to the third issue with regard to
the contention of the respondent that petitioner has
Writ Tax No.571 of 2026 Page No.81 of 127
waived of its objection by filing return and participating in
re-assessment proceedings.
54. It was contended by the counsel for the
petitioner that the petitioner did not file reply and return
in response to notice under Section 142, and therefore,
never submitted to the jurisdiction of the assessing
officer. In fact, at every stage the petitioner specifically
raised the objection that the proceedings initiated against
the deceased person was void ab initio and without
jurisdiction. Even if there is implicitly a waiver,
acquiescence or consent by mere participation in
proceeding that would not halt the petitioner from
challenging the jurisdiction of the assessing officer for the
reason that acquiescence, waiver or consent cannot
confer jurisdiction upon an authority when the statute
does not provide for it. For this proposition, counsel for
the petitioner has placed reliance on the Maruti Suzuki
India limited (Supra), Krishnaawtar Kabra (Supra),
Meet Lalwani (Supra) , Sandeep Chopra (Supra) ,
Gourang Anil Wakade (Supra), Neena Jatin Shah
(Supra).
Writ Tax No.571 of 2026 Page No.82 of 127
55. On the contrary, the respondents submit that
since the petitioner has filed the Income Tax Return in
the name of the deceased representing him to be a living
person, therefore, the blameworthy conduct cannot estop
the department from continuing proceedings against the
legal heir.
56. At this juncture one may look to the Division-
bench judgment of the Bombay High Court in Shri
Devendra (Supra) wherein the court had quashed the
show cause notice under Section 148 as the jurisdictional
requirement was not fulfilled and also held that resort to
Section 292BB cannot be invoked as the primary
condition for invoking Section 292BB is that assessee is
put on notice and not the legal heir. The relevant
paragraph of the judgment is quoted hereinbelow:-
“14. Another contention of the respondents is that as the
petitioner has responded to the notice and participated in
the proceeding, section 292BB comes into picture and
the notice issued against a dead person cannot be a
nullity…
“14. A cursory look at section 292BB would
show that the same would apply only to two
types of proceedings, namely, (i) proceedings,
in which, the assessee had appeared and (ii)
any inquiry, in which, the assessee had co-
operated.
15. In the case on hand, the assessee was
dead. It was the assessee's son, who appeared
and perhaps co-operated. Therefore, the
Writ Tax No.571 of 2026 Page No.83 of 127
primary condition for invocation of section
292BB is absent in the case on hand.
16. Section 292BB is in place to take care of
contingencies where an assessee is put on
notice of the initiation of proceedings, but who
takes advantage of defective notices or
defective service of notice on him. It is trite to
point out that the purpose of issue of notice is
to make the noticee aware of the nature of the
proceedings. Once the nature of the
proceedings is made known and understood by
the assessee, he should not be allowed to take
advantage of certain procedural defects. That
was the purpose behind the enactment of
section 292BB. It cannot be invoked in cases
where the very initiation of proceedings is
against a dead person.””
(Emphasis added)
57. In Maruti Suzuki India limited (Supra), the
two-judge bench of the Supreme Court speaking through
Dr. D.Y. Chandrachud, J. held in favour of assessee, and
authoritatively observed in relation to Section 292B and
Section 292BB, that the framing of assessment against a
non-existent entity is impermissible and participation of
new entity/person who was not an assessee does not
create estoppel against law or validate proceedings that
are otherwise void ab initio . The relevant paragraphs of
the judgment are quoted hereinbelow:-
“21. In Spice Entertainment [Spice Entertainment Ltd. v.
Commr. of Service Tax, 2011 SCC OnLine Del 3210 :
(2012) 280 ELT 43] , a Division Bench of the Delhi High
Court dealt with the question as to whether an
assessment in the name of a company which has been
amalgamated and has been dissolved is null and void or,
whether the framing of an assessment in the name of
Writ Tax No.571 of 2026 Page No.84 of 127
such company is merely a procedural defect which can
be cured. The High Court held that upon a notice under
Section 143(2) being addressed, the amalgamated
company had brought the fact of the amalgamation to
the notice of the assessing officer. Despite this, the
assessing officer did not substitute the name of the
amalgamated company and proceeded to make an
assessment in the name of a non-existent company
which renders it void. This, in the view of the High
Court, was not merely a procedural defect. Moreover,
the participation by the amalgamated company would
have no effect since there could be no estoppel against
law : (SCC OnLine Del paras 11-12)
“11. After the sanction of the scheme on 11-4-
2004, Spice ceases to exit w.e.f. 1-7-2003.
Even if Spice had filed the returns, it became
incumbent upon the Income Tax Authorities to
substitute the successor in place of the said
“dead person”. When notice under Section
143(2) was sent, the appellant/amalgamated
company appeared and brought this fact to
the knowledge of the AO. He, however, did not
substitute the name of the appellant on
record. Instead, the assessing officer made
the assessment in the name of M/s Spice
which was non-existing entity on that day. In
such proceedings an assessment order passed
in the name of M/s Spice would clearly be
void. Such a defect cannot be treated as
procedural defect. Mere participation by the
appellant would be of no effect as there is no
estoppel against law.
12. Once it is found that assessment is framed
in the name of non-existing entity, it does not
remain a procedural irregularity of the nature
which could be cured by invoking the
provisions of Section 292-B of the Act.”
Following the decision in Spice Entertainment [Spice
Entertainment Ltd. v. Commr. of Service Tax, 2011 SCC
OnLine Del 3210 : (2012) 280 ELT 43] , the Delhi High
Court quashed assessment orders which were framed in
the name of the amalgamating company in:
(i) Dimension Apparels [CIT v. Dimension Apparels (P)
Ltd., 2014 SCC OnLine Del 7588 : (2015) 370 ITR 288] ;
(ii) Micron Steels [CIT v. Micron Steels (P) Ltd., 2015
SCC OnLine Del 7321 : (2015) 372 ITR 386] ; and
Writ Tax No.571 of 2026 Page No.85 of 127
(iii) Micra India [CIT v. Micra (India) (P) Ltd., 2015 SCC
OnLine Del 14631] .
22. In Dimension Apparels [CIT v. Dimension Apparels
(P) Ltd., 2014 SCC OnLine Del 7588 : (2015) 370 ITR
288] , a Division Bench of the Delhi High Court affirmed
the quashing of an assessment order dated 31-12-2010.
The respondent had amalgamated with another
company and thus, ceased to exist from 7-12-2009. The
Court rejected the argument of the Revenue that the
assessment was in substance and effect in conformity
with the Act by reason of the fact that the assessing
officer had used correct nomenclature in addressing the
assessee; stated the fact that the company had
amalgamated and mentioned the correct address of the
amalgamated company. It was the Revenue's contention
that the omission on the part of the assessing officer to
mention the name of the amalgamated company is a
procedural defect. The Delhi High Court rejected this
contention. In doing so, it relied on the holding in Spice
Entertainment [Spice Entertainment Ltd. v. Commr. of
Service Tax, 2011 SCC OnLine Del 3210 : (2012) 280
ELT 43] , where the High Court expressly clarified that
“the framing of assessment against a non-existing
entity/person” is a jurisdictional defect. The Division
Bench also relied on the holding in Spice Entertainment
[Spice Entertainment Ltd. v. Commr. of Service Tax,
2011 SCC OnLine Del 3210 : (2012) 280 ELT 43] that
participation by the amalgamated company in
proceedings does not cure the defect as “there can be
no estoppel in law”, to affirm the quashing of the
assessment order.
*
36. In the present case, despite the fact that the
assessing officer was informed of the amalgamating
company having ceased to exist as a result of the
approved scheme of amalgamation, the jurisdictional
notice was issued only in its name. The basis on which
jurisdiction was invoked was fundamentally at odds with
the legal principle that the amalgamating entity ceases
to exist upon the approved scheme of amalgamation.
Participation in the proceedings by the appellant in the
circumstances cannot operate as an estoppel against
law. This position now holds the field in view of the
judgment of a coordinate Bench of two learned Judges
which dismissed the appeal of the Revenue in Spice
Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18
SCC 353] on 2-11-2017. The decision in Spice
Enfotainment [CIT v. Spice Enfotainment Ltd., (2020) 18
SCC 353] has been followed in the case of the
Writ Tax No.571 of 2026 Page No.86 of 127
respondent while dismissing the special leave petition for
AY 2011-2012. In doing so, this Court has relied on the
decision in Spice Enfotainment [CIT v. Spice
Enfotainment Ltd., (2020) 18 SCC 353] .”
(Emphasis added)
58. Section 292BB creates a statutory estoppel
wherein an assessee has appeared or cooperated in
proceedings without objecting to the service of notice;
such an assessee shall be deemed to have been duly
served and cannot raise a plea of non-service thereafter.
59. From the perusal of Section 292BB it is clear
that it applies only to two types of proceedings; namely
when the assessee had himself appeared, and secondly,
when the assessee had cooperated in the enquiry. In the
present case, the assessee was dead at the time of
issuance of notice. It was the assessee's wife who
appeared and allegedly cooperated in the proceedings.
60. The primary condition for invocation of Section
292BB is absent in the present case. Section 292BB is in
place to take care of contingencies where assessee is put
on notice of the initiation of proceedings. The purpose
behind the enactment of Section 292BB is to make the
noticee aware of the nature of proceedings and once the
nature of proceedings is made known and understood by
Writ Tax No.571 of 2026 Page No.87 of 127
the assessee, he should not be allowed to take advantage
of certain procedural defects.
61. The argument of the respondent that the
petitioner has waived of its objection by participation in
proceeding cannot be countenanced by us for two
reasons. Firstly, petitioner has filed objection before the
department after receiving notice stating that the
assessee has already died, and secondly, even if it is
assumed that the petitioner has participated then also
mere participation cannot confer jurisdiction upon the
authority when the statute is silent on the same as
observed by the Supreme Court in Maruti Suzuki
(Supra).
62. In the present case, right from the inception
the petitioner has objected to the validity of the notice,
and thereafter, to the continuation of proceeding and has
at no point of time participated in the proceedings, by
providing documents in response to notice issued under
section 142.
63. Consequently, the third issue is answered in the
negative, with the court holding that a notice issued in
Writ Tax No.571 of 2026 Page No.88 of 127
the name of the deceased person is not saved by Section
292BB of the Act and is therefore legally unsustainable.
64. Moving towards the fourth issue with regard to
the justification of reassessment proceedings on equitable
grounds and interpretation of taxing statutes.
65. It has been been submitted by the petitioner
that validating reassessment against the dead by taking
recourse to the principles of estoppel, waiver,
acquiescence, approbate and reprobate which are all
equitable doctrines cannot be countenanced as it is trite
law that equity has no place in taxation statutes.
66. Per contra, the counsel for the respondent
contends that the conduct of the petitioner completely
disentitles her from invoking discretionary writ
jurisdiction under Article 226 in view of the return of
income having been filed and electronically verified in the
name of the deceased amounting to deliberate
concealment and abuse of the provisions of law by legal
representatives. For this proposition reliance in this
regard is placed upon the judgment of the Hon'ble
Supreme Court in V. MR. P. Firm Muar (Supra).
Writ Tax No.571 of 2026 Page No.89 of 127
67. I must attach a caveat here that estoppel,
waiver and acquiescence, approbate and reprobate are all
equitable doctrines. Traditionally tax laws have their own
interpretation regime wherein strict interpretation of the
statute and preference for literal meaning is the order of
the day.
68. The kenspeckle observation of Rowlett, J.
adroitly remarked in the judgment of Cape Brandy
57
Syndicate v. Inland Revenue Commissioners which
is pertinent to be looked into is quoted hereinbelow:-
“ There is no room for any intendment. There is no equity
about a tax. There is no presumption as to a tax. Nothing
is to be read in, nothing is to be implied. One can only
look fairly at the language used.”
(Emphasis added)
69. The doctrine of estoppel puts an embargo on a
party from resiling from a representation upon which
another has relied to his detriment. In ordinary civil law,
estoppel is a powerful weapon. In tax law, however, it
operates under severe constraints.
70. Furthermore, in a three judge-Bench
constituting J.C. Shah, S.M. Sikri and K. Subba Rao, JJ. ,
the Supreme Court in MR. P. Firm Muar (Supra)
57 (1921) 1 KB 64
Writ Tax No.571 of 2026 Page No.90 of 127
speaking through K.Subba Rao, J., has held that doctrine
of estoppel would not hold the field in tax law in the case
where a non taxable income under Income Tax Act, has
been taxed. The relevant paragraph of the judgment is
quoted hereinbelow:-
“13. The Central Board of Revenue issued further
instructions on the above scheme by its letter dated
December 1, 1947. One of the instructions was that debts
due to the assessee if paid in Japanese currency would be
taken to have been satisfied to that extent and excluded
from the asset side in the balance sheet, provided that if
any recovery was subsequently made, it was to be taken
as income. Briefly stated, under the scheme the losses
suffered by an assessee during Assessment Years 1942-43
to 1946-47 were set off against his profits for Assessment
Years 1942-43 and 1941-42 and any unabsorbed loss
could not be carried forward. The debts discharged in
Japanese currency were excluded from the assets side in
the balance sheet but the authority reserved for itself the
right to treat any recoveries subsequently made as
income. The contention is that the assessees having opted
to accept the scheme, derived benefit thereunder, and
agreed to have their discharged debts excluded from the
asset side in the balance sheet subject to the condition
that subsequent recoveries by them would be taxable
income, they are now precluded, on the principle of
“approbate and reprobate”, from pleading that the income
they derived subsequently by realization of the revived
debts is not taxable income. The doctrine of “approbate
and reprobate” is only a species of estoppel; it applies only
to the conduct of parties. As in the case of estoppel, it
cannot operate against the provisions of a statute. If a
particular income is not taxable under the Income Tax Act,
it cannot be taxed on the basis of estoppel or any other
equitable doctrine. Equity is out of place in tax law; a
particular income is either exigible to tax under the taxing
statute or it is not. If it is not, the Income Tax Officer has
no power to impose tax on the said income.”
(Emphasis added)
71. Another recent locus classicus on this aspect is
the decision of Constitution Bench of the Supreme Court
Writ Tax No.571 of 2026 Page No.91 of 127
58
in Commr. of Customs v. Dilip Kumar & Co.
presided over by Ranjan Gogoi, N.V. Ramana, R.
Banumathi, M.M. Shantanagoudar And S. Abdul Nazeer,
JJ. wherein the court speaking through N.V. Ramana, J.
has regimented the proposition that in case of ambiguity,
a taxing statute should be construed in favour of the
assessee. Forbye, the court has held that every taxing
statute including charging, computation and exemption
clauses at the threshold stage should be interpreted
strictly and after becoming eligible at later stage should
be construed liberally. The relevant paragraphs of the
judgment are quoted hereinbelow:-
“26 . Next, we may consider the meaning and scope of
“strict interpretation”, as evolved in Indian law and how
the higher courts have made a distinction while
interpreting a taxation statute on one hand and tax
exemption notification on the other. In Black's Law
Dictionary (10th Edn.) “strict interpretation” is described
as under:
Strict interpretation. (16c) 1. An interpretation according
to the narrowest, most literal meaning of the words
without regard for context and other permissible
meanings. 2. An interpretation according to what the
interpreter narrowly believes to have been the specific
intentions or understandings of the text's authors or
ratifiers, and no more. Also termed (in senses 1 & 2) strict
construction, literal interpretation; literal construction;
restricted interpretation; interpretatio stricta; interpretatio
restricta; interpretatio verbalis. 3. The philosophy
underlying strict interpretation of statutes. Also termed as
close interpretation; interpretatio restrictive. See strict
constructionism under constructionism. Cf. large
interpretation; liberal interpretation (2).
58 (2018) 9 SCC 1
Writ Tax No.571 of 2026 Page No.92 of 127
“Strict construction of a statute is that which refuses to
expand the law by implications or equitable
considerations, but confines its operation to cases which
are clearly within the letter of the statute, as well as within
its spirit or reason, not so as to defeat the manifest
purpose of the legislature, but so as to resolve all
reasonable doubts against the applicability of the statute
to the particular case.” Willam M. Lile et al., Brief Making
and the Use of Law Books 343 (Roger W. Cooley & Charles
Lesly Ames eds., 3d Edn. 1914).
“Strict interpretation is an equivocal expression, for it
means either literal or narrow. When a provision is
ambiguous, one of its meaning may be wider than the
other, and the strict (i.e. narrow) sense is not necessarily
the strict (i.e. literal) sense.” John Salmond, Jurisprudence
171 n. (t) [Glanville L. Williams (Ed.), 10th Edn. 1947].
*
34. The passages extracted above, were quoted with
approval by this Court in at least two decisions being CIT
v. Kasturi and Sons Ltd. [CIT v. Kasturi and Sons Ltd.,
(1999) 3 SCC 346] and State of W.B. v. Kesoram
Industries Ltd. [State of W.B. v. Kesoram Industries Ltd.,
(2004) 10 SCC 201] (hereinafter referred to as “Kesoram
Industries case”, for brevity). In the later decision, a
Bench of five Judges, after citing the above passage from
Justice G.P. Singh's treatise, summed up the following
principles applicable to the interpretation of a taxing
statute:
“(i) In interpreting a taxing statute, equitable
considerations are entirely out of place. A taxing statute
cannot be interpreted on any presumption or assumption.
A taxing statute has to be interpreted in the light of what
is clearly expressed; it cannot imply anything which is not
expressed; it cannot import provisions in the statute so as
to supply any deficiency; (ii) Before taxing any person, it
must be shown that he falls within the ambit of the
charging section by clear words used in the section; and
(iii) If the words are ambiguous and open to two
interpretations, the benefit of interpretation is given to the
subject and there is nothing unjust in a taxpayer escaping
if the letter of the law fails to catch him on account of the
legislature's failure to express itself clearly.”
*
55. There is abundant jurisprudential justification for this.
In the governance of rule of law by a written Constitution,
there is no implied power of taxation. The tax power must
Writ Tax No.571 of 2026 Page No.93 of 127
be specifically conferred and it should be strictly in
accordance with the power so endowed by the Constitution
itself. It is for this reason that the courts insist upon strict
compliance before a State demands and extracts money
from its citizens towards various taxes. Any ambiguity in a
taxation provision, therefore, is interpreted in favour of
the subject/assessee. The statement of law that ambiguity
in a taxation statute should be interpreted strictly and in
the event of ambiguity the benefit should go to the
subject/assessee may warrant visualising different
situations. For instance, if there is ambiguity in the subject
of tax, that is to say, who are the persons or things liable
to pay tax, and whether the Revenue has established
conditions before raising and justifying a demand. Similar
is the case in roping all persons within the tax net, in
which event the State is to prove the liability of the
persons, as may arise within the strict language of the
law. There cannot be any implied concept either in
identifying the subject of the tax or person liable to pay
tax. That is why it is often said that subject is not to be
taxed, unless the words of the statute unambiguously
impose a tax on him, that one has to look merely at the
words clearly stated and that there is no room for any
intendment nor presumption as to tax. It is only the letter
of the law and not the spirit of the law to guide the
interpreter to decide the liability to tax ignoring any
amount of hardship and eschewing equity in taxation.
Thus, we may emphatically reiterate that if in the event of
ambiguity in a taxation liability statute, the benefit should
go to the subject/assessee. But, in a situation where the
tax exemption has to be interpreted, the benefit of doubt
should go in favour of the Revenue, the aforesaid
conclusions are expounded only as a prelude to better
understand jurisprudential basis for our conclusion. We
may now consider the decisions which support our view.”
(Emphasis added)
72. A conjoint reading of the preceeding judgments
leads to the inexorable conclusion that if income is not
taxable under the statute, the tax authorities cannot
compel the assessee into paying tax by pointing to some
prior representation or admission by the assessee that
the income is taxable. The charge must flow from the
Writ Tax No.571 of 2026 Page No.94 of 127
statute but not from any representation/reply. The
provision of taxing statutes should operate within the
fringes of its jargon and not beyond it for conferring
jurisdiction in case it is not provided. Apropos the waiver
and acquiescence, a taxpayer cannot implicitly waive his
right and allow the revenue to forgo to the statutory
conditions for imposing a tax. There is no waiver or
estoppel against a statute. Hence, where the statute
prescribes a jurisdictional condition such as the
requirement that a notice under Section 148 be served on
a living person, the conduct of the legal heir cannot waive
compliance with that jurisdictional requirement.
73. In re ‘qui approbat non reprobat‘ that is the
doctrine of approbate and reprobate which proffers that a
party cannot be allowed to ‘blow hot and cold’. We hold
that this doctrine can apply only within the statutory
framework. For instance, if an assessee who has claimed
and received a deduction under a particular head cannot
simultaneously contend that the income under that head
is not taxable. But this operates only where both
positions are within the statutory framework, not as a
means to impose or excuse a liability that the statute
creates or excludes. Furthermore, it has been contended
Writ Tax No.571 of 2026 Page No.95 of 127
by the department that the estate of a deceased assessee
or a taxpayer who has taken advantage of a procedural
defect is being "unjustly enriched" at the expense of the
public exchequer. The aforesaid argument of unjust
enrichment as contended by the counsel for the
respondent has no relevance in the context of tax law. If
the assessee is not liable to pay tax under the statute,
the fact that he may benefit from the strict application of
the law does not justify imposing the tax by importing
equitable notions of unjust enrichment.
74. The reason for the strict exclusion of equity is
well-reasoned and principled as the citizen's liability to
pay tax must be certain and predictable, arising only
from clear statutory language. If equity were allowed to
operate in tax law, the clarity and certainty that the rule
of law requires in the imposition of fiscal burdens would
be annihilated.
75. Now comes the issue of interpretation of
Section 148 that has a unique interpretative paradox in
the Act.
76. The Supreme Court has authoritatively resolved
this paradox by holding that Section 148 operates on a
Writ Tax No.571 of 2026 Page No.96 of 127
two-tier interpretive framework. Jurisdictional conditions
and conditions precedent within Section 148 which is to
be strictly construed and procedural aspects, forms, and
technical requirements which is to be liberally and
purposively construed to ensure the charge does not fail.
77. The Supreme Court in CIT v. Amarchand N.
59
Shroff , laid down the foundational principle that
elaborate provisions were made in the Act specifically
because the statute requires the person sought to be
assessed to be in existence at the time of assessment.
The relevant paragraph of the judgment is quoted
hereinbelow:-
“The individual assessee has ordinarily to be a living
person and there can be no assessment on a dead person
and the assessment is a charge in respect of the income of
the previous year and not a charge in respect of the
income of the year of assessment as measured by the
income of the previous year: Wallace Brothers & Co. Ltd. v.
Commissioner of Income-tax [1948] 16 I.T.R. 240, 244
(P.C). By section 24B the legal representatives have, by
fiction of law, become assessee as provided in that section
but that fiction cannot be extended beyond the object for
which it was enacted. As was observed by this court in
Bengal Immunity Co. Ltd. v. State of Bihar ((1955) 2
S.C.R. 603, 646) legal fictions are only for a definite
purpose and they are limited to the purpose for which they
are created and should not be extended beyond that
legitimate field. In the present case the fiction is limited to
the cases provided in the three sub-sections of section 24B
and cannot be extended further than the liability for the
income received in the previous year.”
(Emphasis added)
59 (1963) 48 ITR 59 (SC); 1962 SCC OnLine SC 193
Writ Tax No.571 of 2026 Page No.97 of 127
78. The Supreme Court in Calcutta Knitwears
(Supra) in relation to strict interpretation of taxing
statute has held as follows:-
“20. Section 158-BD of the Act provides for “undisclosed
income” of any other person. Before we proceed to explain
the said provision, we intend to remind ourselves of the
first or the basic principles of interpretation of a fiscal
legislation. It is time and again reiterated that the courts,
while interpreting the provisions of a fiscal legislation
should neither add nor subtract a word from the provisions
of instant meaning of the sections. It may be mentioned
that the foremost principle of interpretation of fiscal
statutes in every system of interpretation is the rule of
strict interpretation which provides that where the words of
the statute are absolutely clear and unambiguous, recourse
cannot be had to the principles of interpretation other than
the literal rule. (Swedish Match AB v. SEBI [(2004) 11 SCC
641 : AIR 2004 SC 4219] and CIT v. Ajax Products Ltd.
[(1965) 55 ITR 741 (SC)] )
23. Lord Granworth in Gundry v. Pinniger [(1852) 21 LJ Ch
405 : (1843-60) All ER Rep 403 : 42 ER 647] , has
observed that: (ER p. 648)
“… to adhere as closely as possible to the literal meaning of
the words used, is a cardinal rule from which if we depart
we launch into a sea of difficulties which it is not easy to
fathom.”
That is to say, once the literal rule is departed, then any
number of interpretations can be put to a statutory
provision, each Judge having a free play to put his own
interpretation as he likes. This would be destructive of the
edifice of fiscal legislations which impose economic duties
and sanctions.
24. In taxing statutes, even if the literal interpretation
results in hardship or inconvenience, it has to be followed
(G.P. Singh's Principles of Statutory Interpretation, 12th
Edn., 2010, Lexis Nexis Butterworths Wadhwa Nagpur;
Bennion on Statutory Interpretation, 5th Edn., Lexis Nexis,
p. 863; Vepa P. Sarathi, Interpretation of Statutes, 5th
Edn., Eastern Book Company, Chapter VIII, Taxing
Statutes). This Court in CIT (Ag) v. Keshab Chandra
Mandal [1950 SCC 205 : AIR 1950 SC 265] , has held that
hardship or inconvenience cannot alter the meaning of the
language employed by the legislature if such meaning is
Writ Tax No.571 of 2026 Page No.98 of 127
clear and apparent. Hence departure from the literal rule
should only be done in very rare cases, and ordinarily there
should be judicial restraint to do so. (Pandian Chemicals
Ltd. v. CIT [(2003) 5 SCC 590] , Nasiruddin v. Sita Ram
Agarwal [(2003) 2 SCC 577 : AIR 2003 SC 1543] , Bhaiji v.
SDO [(2003) 1 SCC 692] , J.P. Bansal v. State of Rajasthan
[(2003) 5 SCC 134 : 2003 SCC (L&S) 605] , State of
Jharkhand v. Govind Singh [(2005) 10 SCC 437 : 2005
SCC (Cri) 1570] , Jinia Keotin v. Kumar Sitaram Manjhi
[(2003) 1 SCC 730] , Shiv Shakti Coop. Housing Society v.
Swaraj Developers [(2003) 6 SCC 659] , Grasim Industries
Ltd. v. Collector of Customs [(2002) 4 SCC 297] and Union
of India v. Hansoli Devi [(2002) 7 SCC 273] .)
25. The Australian High Court in Federal Commr. of
Taxation v. Westraders Pty. Ltd. [(1980) 144 CLR 55
(Aust)] , considered the scope of Section 36-A of the
Income Tax Assessment Act, 1936 (Cth), which on a literal
interpretation allowed the taxpayer to make a profit and
still claim a loss for tax purposes. The Commissioner
argued that the taxpayer's conduct amounted to a tax
avoidance scheme and should therefore be disallowed
under Section 260 of the Income Tax Assessment Act,
1936 (Cth). The Court held that under a literal
interpretation Section 36-A could apply to allow the
taxpayer to claim a loss. Barwick, C.J., speaking for the
majority relied on the decision in IRC v. Duke of
Westminster [1936 AC 1 : 1935 All ER Rep 259 (HL)] ,
which advocated that the literal approach be applied when
interpreting taxation legislation and stated the following:
“It is for Parliament to specify, and to do so, in my opinion,
as far as language will permit, with unambiguous clarity,
the circumstances which will attract an obligation on the
part of the citizen to pay tax. The function of the court is to
interpret and apply the language in which Parliament has
specified those circumstances. The court is to do so by
determining the meaning of the words employed by
Parliament according to the intention of Parliament which is
discoverable from the language used by Parliament. It is
not for the court to mould or to attempt to mould the
language of the statute so as to produce some result which
it might be thought Parliament may have intended to
achieve, though not expressed in the actual language
employed.”
26. In Cooper Brookes (Wollongong) Pty. Ltd. v. Federal
Commr. of Taxation [(1981) 147 CLR 297 (Aust)] it is held
that in a taxing statute if the language is unambiguous,
departing from the literal approach “may lead Judges to
put their own ideas of justice or social policy in place of the
words of the statute”. Similar view was espoused in C. & J.
Writ Tax No.571 of 2026 Page No.99 of 127
Clark Ltd. v. IRC [(1975) 1 WLR 413 : (1975) 1 All ER 801
(CA)] and BP Refinery (Westernport) Pty. Ltd. v. Shire of
Hastings [(1977) 180 CLR 266 (Aust)] .
27. In Hepples v. Federal Commission of Taxation (No. 2)
[(1992) 173 CLR 492 (Aust)] , the High Court of Australia
unequivocally favoured the principle that taxation
legislation should be subject to a strict literal interpretation
and opined that such an approach was supported by
“common sense”. Therein, the taxpayer, on ceasing to be
employed, was paid $40,000 by his employer in exchange
for the taxpayer agreeing that he would not carry on or be
interested in certain businesses and would not divulge any
trade secrets. The issue before the Court was whether or
not such payment would form part of the taxpayer's
assessable income for the purposes of the Income Tax
Assessment Act, 1936 (Cth). It was held that since the Act
did not provide for such payments to form part of a
taxpayer's assessable income, the payment would not be
assessable.
29. In Prakash Nath Khanna v. CIT [(2004) 9 SCC 686] ,
this Court has explained that the language employed in a
statute is the determinative factor of the legislative intent.
The legislature is presumed to have made no mistake. The
presumption is that it intended to say what it has said.
Assuming there is a defect or an omission in the words
used by the legislature, the Court cannot correct or make
up the deficiency. Where the legislative intent is clear from
the language, the Court should give effect to it. (Delhi
Financial Corpn. v. Rajiv Anand [(2004) 11 SCC 625] and
State of A.P. v. Road Rollers Owners Welfare Assn. [(2004)
6 SCC 210] )
31. Thus, the language of a taxing statute should ordinarily
be read and understood in the sense in which it is
harmonious with the object of the statute to effectuate the
legislative animation. A taxing statute should be strictly
construed; common sense approach, equity, logic, ethics
and morality have no role to play. Nothing is to be read in,
nothing is to be implied; one can only look fairly at the
language used and nothing more and nothing less. (J.
Srinivasa Rao v. State of A.P. [(2006) 12 SCC 607 : (2006)
13 Scale 27] and Jagdambika Pratap Narain Singh v. CBDT
[(1975) 4 SCC 578 : 1975 SCC (Tax) 356 : (1975) 100 ITR
698] .)”
(Emphasis added)
Writ Tax No.571 of 2026 Page No.100 of 127
79. The recent Division bench judgment of the
Supreme Court in Vikram Sujitkumar Bhatia (Supra),
penned by M.R.Shah, J. has clarified the law with regard
to interpretation of Section 153-C of the Act and had
held it to be a machinery provision. The ratio laid down in
the aforesaid judgment is quoted hereinbelow:-
“62. Therefore, if the submission on behalf of the
respective respondent assessees that despite the fact that
the incriminating materials have been found in the form of
books of account or documents or assets relating to them
from the premises of the searched person, still they may
not be subjected to the proceedings under Section 153-C
solely on the ground that the search was conducted prior
to the amendment is accepted, in that case, the very
object and purpose of the amendment to Section 153-C,
which is by way of substitution of the words “belongs or
belong to” to the words “pertains or pertain to” shall be
frustrated. As observed hereinabove, any interpretation,
which may frustrate the very object and purpose of the
Act/statute shall be avoided by the Court. If the
interpretation as canvassed on behalf of the respective
respondents is accepted, in that case, even the object and
purpose of Section 153-C, namely, for assessment of
income of any other person (other than the searched
person) shall be frustrated.”
(Emphasis added)
80. The Supreme Court in Vikram Sujitkumar
Bhatia (Supra) has interpreted Section 153-C as a
machinery provision as the primary intention of the
parliament behind that provision was to proceed against
the third party in case any incriminating material was
found against the third party during the search conducted
by the department which was being frustrated, if it was
Writ Tax No.571 of 2026 Page No.101 of 127
construed strictly. In the peculiar facts of the aforesaid
case the provision was interpreted liberally to suppress
the mischief the legislature intended to suppress so that
the charge did not fail.
81. Following the judgments of the Supreme Court
in Amarchand N. Shroff (Supra), the judgment of
Bombay High Court in Sumit Balkrishna (Supra) and
the judgment of Delhi High Court in Savita Kapila
(Supra), it is abundantly clear that Section 148, at the
very inception of reassessment should be construed
strictly, as it is not merely a machinery provision but also
a jurisdictional provision by reason of its dual and
paradoxical nature. The following principles may be culled
out for construing Section 148 with strict rigour:-
I. Reason to believe and recording of reason;
II. Prior Approval under Section 151 before
issuing notice;
III. The limitation period (Section 149);
IV. The identity of the person to whom the notice
is addressed; and
Writ Tax No.571 of 2026 Page No.102 of 127
V. The jurisdictional competence of the issuing
authority;
82. In the present case, it is undisputed that the
Income Tax Return was filed in the name of the deceased
assessee and verified through the Aadhaar OTP of the
deceased, subsequent to his death, by the petitioner. The
revenue is correct in its stand that the petitioner has
wrongly filed the return contrary to the provisions of
Section 140 of the Act and the same may also attract
penal consequences under Section 277 of the Act on the
ground of false verification. Therefore, the revenue is at
liberty to proceed against the petitioner for violation of
the provisions of Section 140 of the Act. However, the
argument of the revenue, that the petitioner on the
grounds of equity should not be allowed to invoke the
discretionary and equitable writ jurisdiction, is without
any basis in law as a writ of certiorari is being sought for
quashing of a show cause notice on the ground that the
same is void ab initio . The conduct of the petitioner in
filing the return of her husband after his death does not
confer jurisdiction upon the revenue to act in a manner
contrary to the Act. The revenue cannot be allowed to
defend its action and act in an illegal manner by issuing a
Writ Tax No.571 of 2026 Page No.103 of 127
notice which is void ab initio taking the plea that the
petitioner had acted in an illegal manner.
83. Ergo, the reassessment proceedings initiated
under Section 148 of the Income-tax Act, 1961, cannot
be sustained on equitable considerations merely to
safeguard the interests of the revenue. It is a settled
principle that equity has little or no role to play in the
interpretation of taxing statutes, particularly where the
provision confers jurisdiction upon the assessing
authority. The validity of reassessment proceedings must,
therefore, be tested solely on the touchstone of the
statutory requirements prescribed under the Act. If the
mandatory conditions precedent for the assumption of
jurisdiction are not strictly fulfilled, the proceedings are
rendered void, irrespective of the amount of tax sought
to be recovered or the perceived loss to the revenue.
Accordingly, the fourth issue is answered in the negative.
84. Closing in on towards the fifth issue with regard
to the issuance of fresh show cause notice by lifting the
bar of limitation in terms of Section 150(1) of the Act.
85. The counsel for the petitioner relies on sub-
section(2) of Section 150 and has submitted that no fresh
Writ Tax No.571 of 2026 Page No.104 of 127
show cause notice can be issued as the limitation period
has already expired. The protection under Section 150(1)
could have been available to the respondents only if the
assessment ‘order’ itself had been passed within the
statutory period of limitation. Since the order itself is
beyond limitation, Section 150(1) affords no assistance
whatsoever to the respondent department. Accordingly,
the very ‘order’ sought to be relied upon by the
respondent department is itself barred by limitation. Once
the assessment ‘order’ itself is beyond limitation, Section
150(1) cannot be invoked to revive or validate
proceedings which had already become time barred.
86. Furthermore, it has been submitted that
extending the benefit of Section 150(1) in the facts of the
present case would effectively amount to conferring
jurisdiction upon the Assessing Officer which otherwise
does not exist in view of the bar created under Section
149 of the Act as conferment of jurisdiction is purely a
legislative function and jurisdiction cannot be created
either by consent of parties, acquiescence, waiver or
even by orders of a superior court contrary to statutory
provisions. This submission relates to role of equity in
Writ Tax No.571 of 2026 Page No.105 of 127
taxation statutes which we have already dealt with in the
fourth issue.
87. For his aforesaid proposition counsel for the
petitioner has relied on Deoki Nandan Agarwal
(Supra), Jagmittar Sen Bhagat (Supra), Sujata Devi
(Supra), Sukhdayal Pahwa (Supra), Eastern Coal Co.
Ltd . (Supra), Glass Equipment (India) Ltd. (Supra)
and Mahadeo Prasad Bais (Supra).
88. Per contra, counsel for the respondent relies on
sub-section(1) of Section 150 of the Act and submitted
that a ‘finding’ or ‘direction’ by the Court that the
escaped income of deceased assessee is required to be
assessed in the hands of/through his legal heir under
Section 159 would automatically amount to a
consequential direction to the Assessing Officer to
proceed afresh by issuing notice to the legal heir. Such
notice would fall squarely within the ambit of Section
150(1) and would not be barred by Section 149. The very
object of Section 150 is to ensure that lawful assessment
or reassessment is not frustrated where action becomes
necessary in consequence of a ‘finding’ or ‘direction’ of a
Court or appellate/revisional authority.
Writ Tax No.571 of 2026 Page No.106 of 127
89. Furthermore, the counsel for the respondent
submits that the interpretation canvassed by the
petitioner would render Section 150 otiose and defeat the
legislative scheme. The petitioner cannot be permitted to
argue, on the one hand, that the existing notice must be
quashed as having been issued in the name of the
deceased assessee and, on the other hand, that no fresh
notice can be issued because limitation under Section 149
has expired. Such a contention of petitioner would
convert a procedural objection into complete immunity
from assessment, despite the express mandate of Section
159 that tax liability survives against the legal
representative and despite the overriding machinery
contained in Section 150.
90. For his aforesaid proposition counsel for the
respondent has relied on Sukhdayal Pahwa (Supra) ,
Eastern Coal Co. Ltd. (Supra), Glass Equipment
(India) Ltd. (Supra), Ashish Agarwal (Supra) and
Mahadeo Prasad Basis (Supra).
91. At this moment, it is pertinent to look at sub-
clause (1) and (2) of Section 150, which is quoted
hereinbelow:-
Writ Tax No.571 of 2026 Page No.107 of 127
“ 150. (1) Notwithstanding anything contained in section
149, the notice under section 148 may be issued at any
time for the purpose of making an assessment or
reassessment or recomputation in consequence of or to
give effect to any finding or direction contained in an
order passed by any authority in any proceeding under
this Act by way of appeal, reference or revision or by a
Court in any proceeding under any other law.
(2) The provisions of sub-section (1) shall not apply in
any case where any such assessment, reassessment or
recomputation as is referred to in that sub-section relates
to an assessment year in respect of which an assessment,
reassessment or recomputation could not have been
made at the time the order which was the subject-matter
of the appeal, reference or revision, as the case may be,
was made by reason of any other provision limiting the
time within which any action for assessment,
reassessment or recomputation may be taken. ”
92. Moreover, it is also pertinent to refer to Section
153(2) of the Act and the proviso to this subsection as
amended w.e.f. 1st April, 2017 that provides for timeline
for completion of reassessment proceedings and passing
an order under Section 147 which is quoted
hereinbelow:-
“No order of assessment, reassessment or recomputation
shall be made under section 147 after the expiry of nine
months from the end of the financial year in which the
notice under section 148 was served: Provided that where
the notice under section 148 is served on or after the 1st
day of April, 2019, the provisions of this sub-section shall
have effect, as if for the words "nine months", the words
"twelve months" had been substituted.”
93. With regard to lifting bar of limitation for
issuance of fresh notice under Section under Section 148,
a three-judge Bench judgment of the Supreme Court in
Mahadeo Prasad Bais (Supra) may be looked into
Writ Tax No.571 of 2026 Page No.108 of 127
wherein the court recognized the broad remedial scope of
Section 150 of the Income-tax Act and approved the
principle that the provision is intended to preserve the
efficacy of reassessment proceedings undertaken
pursuant to findings or directions contained in appellate
proceedings. The Hon'ble Supreme Court approved the
reasoning adopted in Eastern Coal Co. Ltd. (Supra) and
emphasized that Section 150 operates to remove the
ordinary bar of limitation where reassessment becomes
necessary to give effect to such findings or directions.
The relevant paragraphs of the judgment are quoted
hereinbelow:-
“4. The issue involved in this appeal is basically a short
one turning on the language of Section 150(1). Before
considering the interpretation of this section, we may,
however, point out that, on this question, there appears to
be a conflict of judicial opinion between the several High
Courts. The Allahabad High Court, in the decision
presently under appeal [(1980) 125 ITR 49 : 1978 TLR
344 (All)] and the Calcutta High Court in ITO v. Eastern
Coal Co. Ltd. [(1975) 101 ITR 477 (Cal)] have taken the
view that a reassessment in such circumstances is saved
by the provisions of Section 150(1) of the 1961 Act. An
earlier Allahabad decision in CIT (Addl.) v. Kamalapat
Motilal [(1977) 110 ITR 769 : 1977 TLR 233 : 1976 UPTC
693 (All)] and an earlier Bombay decision in Ambaji
Traders P. Ltd. v. ITO [(1976) 105 ITR 273 (Bom)] took a
similar view on the analogous provision contained in
Section 153(3) of the 1961 Act but a contrary view was
taken by the latter High Court in the later case reported
as CIT v. T.P. Asrani [(1980) 122 ITR 735 : (1979) 11 CTR
(Bom) 298] . Both sets of decisions have placed reliance
on certain observations of this Court in differing contexts.
But it will be best to have a look at the statutory
Writ Tax No.571 of 2026 Page No.109 of 127
provisions first, in the context of the facts of the present
case.
5. To start with, there is no dispute that reassessment
proceedings were rightly initiated under Section 148 of
the Act. It is also common ground that on the language of
Section 148, as it stood at the relevant time, no notice
under Section 148 could have been issued in March 1977
for the assessment years in question. The revenue can
successfully support the validity of this notice only by
reference to Section 150(1). Two questions then arise: (i)
Are the provisions of Section 150(1) attracted? (ii) If yes,
do they save the impugned proceedings? The answer to
the first question is furnished by Section 297(2)(d)(ii), the
very clause which authorises the issue of the notice of
reassessment under Section 148. It permits the issue of
the notice under Section 148, “subject to the provisions
contained in Section 149 or Section 150”. Though the
words “subject to” may be appropriate in the context of
Section 149 and Section 150(2) (which place restrictions
on the issue of the notice under Section 148), they are
somewhat inappropriate apropos Section 150(1) which
relaxes the conditions for issue. But there is no doubt that
the statute clearly intends that the benefit of enlargement
of the time limited under Section 149 should be available
in respect of the notice issued under Section 148 read
with Section 297(2)(d)(ii). The answer to the second
question is furnished by Section 150(1) itself. It removes
the bar of time when the reassessment proceedings are
initiated in consequence of or to give effect to a finding
contained in an order passed by any authority in any
proceeding by way of appeal, reference or revision. There
is no difficulty here for the orders of the Tribunal and the
High Court for the several years between 1949-50 and
1961-62 were passed in proceedings by way of appeals
and reference and there is no dispute that the
reassessment proceedings have been initiated to give
effect to findings in such orders. There is, however, a
catch in applying the terms of Section 150(1) to this case.
There is no doubt that the whole idea of the sub-section
was to lift the embargo placed on initiation of
reassessment proceedings and to remove the time-limit
where the notice of reassessment is issued with a view to
give effect to a direction or finding contained in an
appellate order or an order passed on revision or on
reference. Unfortunately, however, in expressing its above
intention, the legislature has worded the exemption from
time-limit so as to cover only cases where the finding or
direction is contained in an order passed by any such
authority in any such proceeding “under this Act” i.e. the
1961 Act. In the present case the assessments for 1949-
Writ Tax No.571 of 2026 Page No.110 of 127
50 and subsequent years in the case of the family were
made under the old Act and were the subject matters of
appeal to the Appellate Assistant Commissioner and
Tribunal and of reference to the High Court under the
provisions of the 1922 Act. In other words, the finding in
consequence of which the assessments presently under
consideration are being sought to be reopened is a finding
contained in orders passed not ‘under this Act’ but in
orders passed under the 1922 Act. Literally applied,
therefore, the language of Section 150(1) does not help
the department to overcome the bar of limitation
otherwise imposed by Section 149.
*
10. The position is no doubt a little different here. The
provisions of Section 150(1) have been specially made
applicable and operative in respect of the notice under
Section 148 issued in pursuance of Section 297(2)(d)(ii)
and, as pointed out earlier, the application of the
provisions of Section 297(2)(d)(ii) gives rise to two sets of
situations to one of which the language of Section 150(1)
would squarely apply and so the interpretation sought for
by the appellant does not render the words of Section
150(1) redundant. Despite this point of difference in the
two situations, we think that the principle of the above
decisions that the mutatis mutandis rule should be
invoked in interpreting Section 297(2) has application
here also. Not to do so would no doubt not make Section
150(1) redundant but it will bring about an unintended
and inequitable situation. It is clear that Section 150(1)
will operate to lift the time bar in cases where the
reassessment is initiated under Section 148 to give effect
to an order passed under the 1961 Act. Equally, where
assessments had been reopened under Section 34 of the
1922 Act before April 1, 1962 to give effect to orders
passed under the 1922 Act and are continued after that
date by virtue of Section 297(2)(d)(ii), the provisions of
the second proviso to Section 34(3) of that Act would
preclude the operation of the normal rule of limitation for
reassessments. In this situation, it will be a great anomaly
to reach the conclusion that the time-limit will operate in
cases where proceedings under Section 148 are initiated
to give effect to an order on appeal, revision and
reference merely because such order is one passed under
the 1922 Act. Neither reason nor rhyme can explain how
the statute could have intended such anomaly or why it
should be so interpreted as to result in a discriminatory
treatment only to this class of cases. An interpretation
which will result in such anomaly or absurdity should be
avoided. It is also necessary to remember that Section
Writ Tax No.571 of 2026 Page No.111 of 127
297(2) is a provision enacted with a view to provide for
continuity of proceedings in the context of repeal of one
Act by a fresh one broadly containing analogous
provisions and the transitory provisions should, as far as
possible, be construed so as to effect such continuity and
not so as to create a lacuna. For these reasons we think
that it will be appropriate to so read the words of Section
297(2)(d)(ii) as to permit the applicability of Section 150
(or Section 153) with the necessary modifications. To
paraphrase, the last words of Section 297(2)(d)(ii) should
be read to mean that where the proceedings initiated
under Section 148, subject to the relaxations and
limitation of Sections 149 and 150, all the provisions of
the Act shall apply accordingly: that is to say, in the same
manner as they would apply in case of proceedings
normally initiated under these provisions. Since
reassessment proceedings so initiated to give effect to
orders on appeal, revision or reference will not be subject
to a time-limit, the proceedings likewise initiated under
Section 297(2)(d)(ii) read with Section 148 will also not
be subject to any limitations save to the extent mentioned
in Section 150(2).
11. We would like to add that, even if Section 150(1) is to
be read literally and considered as posing a hurdle as
contended for by the appellant, we think this result can be
overcome by a liberal interpretation of Section 297(2)(k).
This clause reads:
“(k) any agreement entered into, appointment made,
approval given, recognition granted, direction, instruction,
notification, order or rule issued under any provision of
the repealed Act shall, so far as it is not inconsistent with
the corresponding provision of this Act, be deemed to
have been entered into, made, granted, given or issued
under the corresponding provision aforesaid and shall
continue in force accordingly;”
(emphasis added)
This is principally a provision intended to save
administrative steps taken under the 1922 Act by
deeming them to be steps taken under the 1961 Act.
Strictly construed, the words “order issued” also would
seem, prima facie, to carry only a similar connotation. But
we see no objection, for our present purposes, in the way
of our construing these words liberally and consequently
deeming the orders passed and issued by the Tribunal and
the High Court in this case for the assessment year 1949-
50 and subsequent assessment years as orders passed or
issued under the corresponding provisions of the new Act.
Once this deeming is made, there is no difficulty in the
Writ Tax No.571 of 2026 Page No.112 of 127
way of accepting the revenue's contention. We think that
the circumstances justify a slight straining of the language
of this clause and applying it so interpreted to the
problem before us so as to avoid a meaningless anomaly.
Thus construed, the statute can be said not to have
misfired in its application to the situation in the present
case.”
94. The counsel for the respondent, relying on the
judgment of Mahadeo Prasad (Supra) contends that
this case is squarely covered by the aforesaid judgment
whereas the counsel for the petitioner contends that this
case is not applicable to the present facts as the
aforesaid judgment does not consider the effect and
applicability of Section 150(2) nor do they deal with a
situation where reassessment proceedings had already
become barred by limitation under Section 149 of the
Act.
95. However, upon a careful perusal of the
judgment in Mahadeo Prasad (Supra), we find that the
aforesaid judgment is distinguishable from the present
case as it deals with a situation where the notice under
Section 148 of the Act is issued in pursuance of Section
297(2)(d)(ii), the repeal and savings clause in the Act
unlike the present scenario where notice is issued
pursuant to search conducted under Section 132 of the
Act. Section 297(2) is a provision enacted with a view to
Writ Tax No.571 of 2026 Page No.113 of 127
provide for continuity of proceedings in the context of
repeal of one Act by a fresh one broadly containing
analogous provisions and the transitory provisions
should, as far as possible, be construed so as to effect
such continuity and not so as to create a lacuna.
96. The Supreme Court in Ashish Agarwal
(Supra) while dealing with a bunch of petitions from all
over the High Courts has held that the respective Section
148 notices impugned therein issued to the respective
assessees shall be deemed to have been issued under
Section 148-A of the Act as substituted by the Finance
Act, 2021 and treated to be a show-cause notices in
terms of Section 148-A( b ). The relevant paragraphs of
the judgment are quoted hereinbelow:-
“22. Thus, the new provisions substituted by the Finance
Act, 2021 being remedial and benevolent in nature and
substituted with a specific aim and object to protect the
rights and interest of the assessee as well as and the
same being in public interest, the respective High Courts
have rightly held that the benefit of new provisions shall
be made available even in respect of the proceedings
relating to past assessment years, provided Section 148
notice has been issued on or after 1-4-2021. We are in
complete agreement with the view taken by the various
High Courts in holding so.
*
23. However, at the same time, the judgments of the
several High Courts would result in no reassessment
proceedings at all, even if the same are permissible under
the Finance Act, 2021 and as per substituted Sections 147
to 151 of the IT Act. The Revenue cannot be made
Writ Tax No.571 of 2026 Page No.114 of 127
remediless and the object and purpose of reassessment
proceedings cannot be frustrated. It is true that due to a
bona fide mistake and in view of subsequent extension of
time vide various notifications, the Revenue issued the
impugned notices under Section 148 after the amendment
was enforced w.e.f. 1-4-2021, under the unamended
Section 148. In our view the same ought not to have been
issued under the unamended Act and ought to have been
issued under the substituted provisions of Sections 147 to
151 of the IT Act as per the Finance Act, 2021.
*
24. There appears to be genuine non-application of the
amendments as the officers of the Revenue may have
been under a bona fide belief that the amendments may
not yet have been enforced. Therefore, we are of the
opinion that some leeway must be shown in that regard
which the High Courts could have done so. Therefore,
instead of quashing and setting aside the reassessment
notices issued under the unamended provision of the IT
Act, the High Courts ought to have passed an order
construing the notices issued under the unamended
Act/unamended provision of the IT Act as those deemed
to have been issued under Section 148-A of the IT Act as
per the new provision Section 148-A and the Revenue
ought to have been permitted to proceed further with the
reassessment proceedings as per the substituted
provisions of Sections 147 to 151 of the IT Act as per the
Finance Act, 2021, subject to compliance of all the
procedural requirements and the defences, which may be
available to the assessee under the substituted provisions
of Sections 147 to 151 of the IT Act and which may be
available under the Finance Act, 2021 and in law.
*
25.1. The respective impugned Section 148 notices issued
to the respective assessees shall be deemed to have been
issued under Section 148-A of the IT Act as substituted by
the Finance Act, 2021 and treated to be show-cause
notices in terms of Section 148-A( b ). The respective
assessing officers shall within thirty days from today
provide to the assessees the information and material
relied upon by the Revenue so that the assessees can
reply to the notices within two weeks thereafter.
*
27. Therefore, we have proposed to pass the present
order with a view to avoiding filing of further appeals
before this Court and burden this Court with
Writ Tax No.571 of 2026 Page No.115 of 127
approximately 9000 appeals against the similar
judgments and orders passed by the various High Courts,
the particulars of some of which are referred to
hereinabove. We have also proposed to pass the aforesaid
order in exercise of our powers under Article 142 of the
Constitution of India by holding that the present order
shall govern, not only the impugned judgments and
orders passed by the High Court of Judicature at
Allahabad, but shall also be made applicable in respect of
the similar judgments and orders passed by various High
Courts across the country and therefore the present order
shall be applicable to PAN INDIA.”
97. The Supreme Court in Ashish Agarwal
(Supra) has held that the revenue cannot be rendered
remediless merely because of technical or procedural
defects in the notices, and accordingly, exercised its
power under Article 142 to preserve the reassessment
proceedings. The Supreme Court while explaining the
changes brought into effect vide Finance Act, 2021 has
specifically dealt with the issue of application of
substituted Sections 147 to 151 vide Finance Act, 2021
and extended the benefit of the substituted provisions to
past assessment years in cases where notice was issued
under the erstwhile Section 148 but post April 1, 2021.
The Supreme Court had specifically stated that they have
exercised their powers under Article 142 of the
Constitution of India in the peculiar facts and
circumstances of the case, that being the case, the
judgment of the Supreme Court in Ashish Agarwal
Writ Tax No.571 of 2026 Page No.116 of 127
(Supra) cannot be used as a precedent. The aforesaid
judgment was passed to ensure continuity of the
substituted provisions of law in the Act and does not lay
down any ratio with regard to curing the jurisdictional
defect.
98. The Madras High Court in Alamelu Veerappan
(Supra), Delhi High Court in Savita Kapila (Supra), the
Bombay High Court in Devendra (Supra) and Sumit
Balkrishna Gupta (Supra) while quashing the notice
under Section 148 issued against the deceased assessee,
held that a notice issued to a dead person does not fulfill
the sine qua non for assumption of jurisdiction under
Section 148. The Court held that since the notice itself
was void and non est, there were no valid proceedings
before the court. In essence, although the courts did not
specifically deal with Section 150, therefore, no liberty
was given to issue a fresh notice.
99. A perusal of sub-section(1) of Section 150 of
the Act carves out an exception to the period of limitation
prescribed under Section 149. It provides that
notwithstanding anything contained in Section 149, an
assessment or reassessment may be made at any time
Writ Tax No.571 of 2026 Page No.117 of 127
for the purpose of giving effect to any finding or direction
contained in an order passed by a court in any
proceeding under any law, including by way of appeal,
reference, revision, or writ.
100. However, Section 150(2) imposes a critical
caveat, the benefit of Section 150(1) is expressly denied
if the relevant assessment year had already become
barred by limitation at the time when the ‘order’ (not the
notice) which was the subject matter of such proceeding
was itself made.
101. In essence, the revenue seeks to use the very
order of quashing passed in favour of the assessee as a
springboard to revive otherwise time-barred proceedings.
102. The legal position, as consistently affirmed by
the various High Courts and the Supreme Court, is that
where a notice under Section 148 is issued against a
deceased assessee and is quashed by a court as void ab
initio , the revenue cannot invoke Section 150(1) to issue
a fresh notice against the legal representatives beyond
the period of limitation.
103. At this point, we make it clear that the order of
quashing of the show cause notice by the High Court
Writ Tax No.571 of 2026 Page No.118 of 127
does not constitute a "finding or direction" within the
meaning of Section 150(1), because the notice itself
being void, no valid proceeding was ever pending before
the court. Furthermore, the correct course mandated by
Section 159(2)(b) was for the revenue to have initiated
fresh proceedings directly against the legal
representatives within the prescribed period of limitation,
which having not been done the entire reassessment
proceedings was foreclosed in law.
104. In view of the above, the argument of the
respondent that the bar of limitation can be lifted in view
of any ‘finding’ or ‘direction’ of any court by way of
appeal, reference or revision is unsustainable in law as
the order of the High Court observing the void initiation
of proceedings against the dead cannot ipso facto amount
to a ‘finding’ or ‘direction’ for the purpose of lifting bar of
limitation for reassessment. Ergo, the department
cannot, after the invalid initiation of reassessment
proceedings against a deceased assessee, circumvent the
statutory bar of limitation by issuing a fresh notice under
Section 148 to the legal representative by invoking
Section 150(1) of the Act. Furthermore, the argument of
the petitioner that the assessment order itself was passed
Writ Tax No.571 of 2026 Page No.119 of 127
beyond limitation cannot be countenanced by us as the
proviso to Section 150(2) provides that the assessment
order under Section 147 shall be made within 12 months
from the end of financial year of notice, if the notice was
served on or after April 1, 2019. In our view, Section
150(1) of the Act has no application whatsoever in the
present case wherein the reassessment notice has been
issued to a dead person and is accordingly a void
initiation of proceedings. Section 150(1) does not come
into operation at all as the same would come into
operation only when there is a finding or direction by an
authority by way of appeal, reference, or revision or by
any court in any proceeding under any other law. In the
present case, there is no such order passed by any
authority whatsoever and the present order of the High
Court is simpliciter a reassertion of the fact that the
initiation of the reassessment proceedings were void ab
initio . This order is definitely not a finding or direction
that would require a reassessment or recomputation in
consequence of the finding that the issuance of the
notice is invalid. Where the time prescribed under Section
149 for issuance of a notice under Section 148 has
expired, the Department cannot revive a time-barred
Writ Tax No.571 of 2026 Page No.120 of 127
proceeding merely on equitable considerations or by
relying upon Section 150(1). Consequently, if the
limitation prescribed under Section 149 has lapsed, the
issuance of a fresh notice to the legal representative is
impermissible in law and the reassessment proceedings
are barred by limitation. Hence, the fifth issue is also
answered in the negative.
CONCLUSION
105. Upon sifting through the ratios laid down in
multifarious views of various High Courts and the
Supreme Court, the following principles can be culled
out:-
I. A notice under Section 148 for reopening
past years assessment is a jurisdictional notice
that must be issued in the name of the correct
person and not against the dead and such
issuance of notice against a dead person is void
ab initio rendering all the consequential
proceedings as null and void.
II. The department can continue reassessment
proceedings against the legal representative of the
deceased assessee invoking Section 159 if the
Writ Tax No.571 of 2026 Page No.121 of 127
notice at the very first instance was issued on the
assessee when he was alive [Section 159(2)(a)];
and after his death against the legal
representative/heir of the deceased assessee
within the prescribed limitation under Section 149
of the Act [Section 159(2)(b)].
III. The fact of issuance of notice against a dead
person is a jurisdictional error that cannot be
cured resorting to Section 292B of the Act.
IV. The estoppel created under Section 292BB
applies to original assessee and not to other
individuals as the estoppel created under the
statute operates within the fringes of its jargon
and not beyond it for conferring jurisdiction.
IV. In interpreting taxing statutes equitable
considerations should be entirely out of place and
cannot be interpreted on any presumption or
assumption and have to be interpreted in light of
what is clearly expressed; it cannot imply
anything which is not expressed; it cannot import
provisions in the statute so as to supply any
deficiency.
Writ Tax No.571 of 2026 Page No.122 of 127
V. Equity and tax are strangers to each other. If a
particular income is exigible to tax under the
taxing statute, then the individual may be taxed
and if inexigible, then cannot be taxed.
VI. The order of this court quashing the show
cause notice under Section 148 holding the same
as void ab initio does not amount to ‘finding’ or
‘direction’ within the meaning of Section 150(1) of
the Act so as to lift the bar of limitation as
provided under Section 149 of the Act.
106. Before parting with this matter, this Court
deems it apposite to observe that the present case is an
illustration of lackadaisical attitude of the department.
The Income Tax Department, armed with the vast
machinery of the State and entrusted with the solemn
responsibility of administering a complex fiscal statute,
proceeded to initiate, pursue, and conclude reassessment
proceedings initiated against a dead person undeterred
by categorical intimations of his death, and apparently
oblivious to the foundational legal principle that a dead
person is not a legal entity and cannot be subjected to
reassessment proceedings.
Writ Tax No.571 of 2026 Page No.123 of 127
107. It would be an act of audacity if I miss to quote
Benjamin Franklin: “ nothing is certain except death and
taxes. ” To tax the dead is a contradiction in terms. Tax
laws are made by the living to tax the living. What
survives the dead person is what is left behind in the
form of such a person's property.
108. To tax the dead is, in the rudimentary sense, a
contradiction in terms, for taxation, as a statutory
exercise of sovereign power, operates upon living persons
possessed of legal personality, capacity to respond, and
ability to participate in proceedings. A dead man can do
none of these things. He can neither receive a notice, nor
file a reply, nor appear before an authority, nor challenge
an order. The impugned proceedings in the present case
were, therefore, not merely void ab initio in the technical
sense but were void in the most profound and elementary
sense and furthermore such an order of a High Court
quashing a notice under Section 148 issued to a deceased
assessee as void ab initio does not constitute a ‘finding’
or ‘direction’ within the meaning of Section 150(1) for
reassessment. Ergo, the revenue is not allowed to derive
benefit from its own jurisdictional transgression.
Writ Tax No.571 of 2026 Page No.124 of 127
109. This Court, accordingly, quashes the impugned
notice dated March 28, 2025 under Section 148 of the
Act, and all proceedings, orders, and demands
consequential thereto are quashed and set aside.
Accordingly, writ petition is allowed .
110. This court would like to put on record its
appreciation with regard to the arguments placed by the
counsel appearing on behalf of both the parties and the
diligent spadework in preparation of notes of arguments.
I would also like to thank my Research Associate Ms.
Saumya Patel for the painstaking and assiduous dexterity
in the research carried out by her.
(Shekhar B. Saraf, J.)
I agree
(Abdhesh Kumar Chaudhary, J.)
EPILOGUE
111. The ticklish and complex issues that have
arisen in the present writ petition, makes one fathom the
intricacies of the law applicable in the present case.
Article 265 of the Constitution of India categorically
Writ Tax No.571 of 2026 Page No.125 of 127
states that “No tax shall be levied or collected except by
authority of law”. In the present case, we have held that
the revenue authorities cannot proceed against the
petitioner as the show cause notice issued for
reassessment was issued on the deceased-husband of the
petitioner. The facts have clearly revealed that the
petitioner by filing return in the name of the late
deceased husband by using the authentication of the
deceased person has also acted in an illegal manner.
However, taxing statutes require a strict interpretation of
the law and for the various reasons discussed above, the
notice has been held to be void ab initio and the
proceedings taken thereunder have been quashed by us.
112. The arguments raised by the department have
to be negated by the Bench simpliciter, due to a lacuna in
the law that proscribed proceedings against the estate of
the deceased in the manner discussed above. There is no
doubt that the loophole in the law has caused prejudice
to the department and possibly loss to the public
exchequer. However, keeping in view the general
principles of separation of powers under the Constitution
of India, this Court has not ventured into reading down
any provision and/or adding to a provision of a taxing
Writ Tax No.571 of 2026 Page No.126 of 127
statute keeping in mind the principles established in law
by the Hon’ble Supreme Court with regard to the
interpretation of taxing statutes.
113. We are of the view that the present loophole
that exists is one that is required to be plugged by the
Parliament with regard to the Act and other taxing
statutes, where similar provisions have been enacted.
114. In light of the same, we direct transmission of
the judgment to the Ministry of Finance, Government of
India, so that the Government of India may make
elaborate deliberations on this loophole and if they
consider it necessary, the Parliament may step in, to
remove the lacuna by appropriate amendments to the
law.
115. Accordingly, the Senior Registrar of this Court is
directed to send a copy of this judgment to the Ministry
of Finance, Government of India.
(Shekhar B. Saraf, J.)
I agree
(Abdhesh Kumar Chaudhary, J.)
July 21, 2026
Chandra Kant Singh
Writ Tax No.571 of 2026 Page No.127 of 127
Digitally signed by :-
CHANDRA KANT SINGH
High Court of Judicature at Allahabad,
Lucknow Bench