A notice under section 148 can only be issued in the name of an alive person. In case the assessee is dead and notice is issued in his or her name, then the same is non est in the eyes of law. An order passed in continuity of such a notice is also invalid and liable to be annulled. An alternative statutory remedy does not act as a bar on maintainability of a writ petition, where the order or notice or proceedings are wholly without jurisdiction to initiate assessment proceedings. The mere fact that subsequent orders have already been passed would not render the challenge to jurisdiction infructuous.
The sin qua non for acquiring jurisdiction to reopen an assessment is that notice under section 148 should be issued to a correct & alive person and not to a dead person. Consequently, the jurisdictional requirement under section 148 of the Income Tax Act 1961 of service of notice in case if not fulfilled renders the entire proceedings null and void.
There is no statutory liability on legal heir to intimate the death of the assessee to Income Tax Department. Section 159 does not apply in such cases when notice under section 148 is issued in the name of dead person. It was also held that Section 292BB is applicable to an assessee and not to a legal representative. The honorable Delhi High Court in the case of Mrs Sripathi Subbaraya Manohara L/H Late Sripathi Subbaraya Gupta versus PCIT, Delhi in writ petition no. WP(C) 2678/2020 & CM 9286/2020 has held that notice issued in the name of dead person is invalid. The honorable court has followed its own order in the case of Mrs Savita Kapila v. ACIT (WP(C) 3258/2020.
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What would be the fate of notice u/s 148 issued to a Partnership Firm which got compulsorily dissolved upon death of a partner. Whether a dissolved firm shall be at par with a deceased person, and consequently notice issued to the firm would be treated as illegal. Kindly advise. Thanks