Commissioner of Income Tax vs Suresh Chandra Jaiswal

The substantial question of law referred to this Income Tax Reference reads as under:

Whether, on the facts and circumstances of the case, the Tribunal was right in holding that the defects in the notice u/s 148 were not cured by Section 292B of the Income Tax Act, 1961?

We have heard both sides.

In the case of Commissioner of Income Tax Vs. Shital Prasad Kharag Prasad, a Division Bench of this Court has held that the notice contemplated u/s 148 of the Income Tax Act, 1961, is a jurisdictional notice and is not curable u/s 292B of the Act, if it was not served in accordance with the provisions of the Act.

In the present case, the notice u/s 148 was addressed to an assessee who was already dead even on the date of issue of notice. The notice was issued on March 28, 1985, while the assessee, Ganga Prasad Jaiswal had died on March 20, 1985. The notice was not served upon the legal representatives of Ganga Prasad Jaiswal but it was served on one Keshav Ram, munim. Even the name of the deceased assessee was not correctly mentioned in the notice. The notice was addressed to Ganga Prasad Jaiswal while the correct name of the assessee was Ganga Ram Jaiswal.

From the side of the respondents a decision of a learned single judge of the Calcutta High Court in the case of Mulchand Rampuria Vs. Income Tax Officer and Another, has been relied upon.

We have examined the said judgment of the Calcutta High Court. However, we are unable to agree with the reasoning of the said judgment. On the other hand, we agree with the reasoning given by the Division Bench of this Court in the case of Commissioner of Income Tax Vs. Shital Prasad Kharag Prasad,

Accordingly, the question referred in answered in favour of the assessee and against the Department.