JUDGMENT 1. This reference has been made by the Income-tax Appellate Tribunal, Jaipur Bench, Jaipur in R.A. No. 46/JP/1987 arising out of I.T.A. No. 1178/JP/85 pertaining to the assessment year 1972-73 to this court referring the following questions of law for the opinion of this court : "1. Whether the learned Tribunal was right in law in not annulling the assessment order and the notice of demand for the assessment year 1972-73 when the assessment order and the notice of demand were made in the name of a dead person ? 2. Whether the learned Tribunal was right in law in not following the decision of the Supreme Court in CIT v. Amarchand N. Shroff [1963] 48 ITR (SC) 59 cited at the time of hearing ? 3. Whether the learned Tribunal was right in not annulling the assessment order and the notice of demand on account of insertion of section 292B in the Income-tax Act, 1961 ? 4. Whether the learned Tribunal was right in law in not annulling the assessment order because of not bringing on record all the four legal representatives by the Income-tax Officer particularly when the Income-tax Officer was aware of there being four legal representatives of the deceased, Shri Jagannath Sharma ?" 2. So far as question No. 4 is concerned, we have already deliberated the question in D.B. Income-tax Reference No. 93 of 1987 titled as-Smt. Kesar Devi v. CIT (No. 1) [2010] 321 ITR 341 (Raj) and three other connected references in the cases of the assessee pertaining to the assessment years 1975-76, 1976-77 and 1977-78 and to that extent the said judgment relating to these assessment years shall be applicable for the purpose of answer to this question. 3. So far as question No. 3 is concerned, learned counsel for the assessee has submitted that the Tribunal in application of the law contained in section 292B of the Income-tax Act, 1961 was not correct, therefore, he does not press this question. 4. Questions Nos. 1 and 2 are interdependent questions. The authorities under the Income-tax Act while deciding the assessment of the assessee pertaining to the assessment year 1972-73, the judgment of the Supreme Court cited in paragraph 2 has not been properly applied. Therefore, questions Nos. 1 and 2 shall be answered conjointly. 5. We have heard learned counsel for the parties and perused the record of the case. 6. Therefore, questions Nos. 1 and 2 shall be answered conjointly. 5. We have heard learned counsel for the parties and perused the record of the case. 6. The assessee Jagannath Sharma filed his Income-tax return pertaining to the assessment year 1972-73. The Assessing Officer passed final order on the assessment. The assessee thereafter died. On July 1, 1978, notice under section 148 of the Income-tax Act was served for reopening the assessment to the assessee while he was dead on March 30, 1981. 7. Learned counsel for the petitioner has submitted that the assessment could be reopened only within a period of 8 years in terms of section 149 of the Income-tax Act by serving a notice under section 148 of the Income-tax Act. The notice was sent to the deceased Jagannath Sharma on March 30, 1981, whereas the notice on the legal representatives of the deceased was served certainly thereafter. 8. It is necessary to observe here that for the assessment years 1975-76, 1976-77 and 1977-78, the notice was served upon Ramakant Shama, son of the deceased, by the assessing authority and final assessment order was passed on March 28, 1981. The widow of the assessee Smt. Kesar Devi filed an appeal before the Assistant Commissioner (Appeals), who decided the appeal vide his order dated February 17, 1982, remanding the matter back to the Assessing Officer. Against the order of the Assessing Officer, again an appeal was filed by Smt. Kesar Devi, which came to be rejected observing that the appeal is not maintainable as the tax can be recovered from any of the legal representatives of the deceased assessee. Further appeal was preferred before the Appellate Tribunal against the order of the Assistant Commissioner (Appeals). The Tribunal vide its order dated December 17, 1986, while remanding the matter, set aside the order passed by the Assessing Officer and directed him to decide the matter afresh after hearing all the legal representatives of the deceased, providing them opportunity of being heard and to the Income-tax Officer as well. 9. The Tribunal vide its order dated December 17, 1986, while remanding the matter, set aside the order passed by the Assessing Officer and directed him to decide the matter afresh after hearing all the legal representatives of the deceased, providing them opportunity of being heard and to the Income-tax Officer as well. 9. The point in issue, raised by learned counsel for the petitioner, is that the Assessing Officer has no jurisdiction to reopen the assessment in terms of section 148 of the Income-tax Act as the period prescribed for reopening the assessment is only 8 years whereas the notice on the legal representatives of the deceased was issued after the expiry of the statutory period for the assessment year 1972-73. For convenience sections 148 and 149 are extracted below and reads as : "148. Issue of notice where income has escaped assessment.- (1)Before making the assessment, reassessment or recomputation under section 147, the Income-tax Officer shall serve on the assessee a notice containing all or any of the requirements which may be included in a notice under sub-section (2) of section 139 ; and the provisions of this Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that sub-section. (2) The Income-tax Officer shall, before issuing any notice under this section, record his reasons for doing so." "149. Time limit for notice.-(1) No notice under section 148 shall be issued- (a) in cases falling under clause (a) of section 147- (i) for the relevant assessment year, if eight years have elapsed from the end of that year, unless the case falls under sub-clause (ii) ; (ii) for the relevant assessment year, where, eight years, but not more than sixteen years, have elapsed from the end of that year, unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to rupees fifty thousand or more from that year ; (b) in cases falling under clause (b) of section 147, at any time after the expiry of four years from the end of the relevant assessment year. (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151. (2) The provisions of sub-section (1) as to the issue of notice shall be subject to the provisions of section 151. (3) If the person on whom a notice under section 148 is to be served is a person treated as the agent of a non-resident under section 163 and the assessment, reassessment or recomputation to be made in pursuance of the notice is to be made on him as the agent of such non-resident, the notice shall not be issued after the expiry of a period of two years from the end of the relevant assessment year." 10. It is not in dispute that the income chargeable to tax which escaped assessment amounts is less than Rs. 50,000 for the relevant assessment year. Therefore, the period of limitation of 8 years is relevant in the present case. We find that the notice could not be rebutted by the learned counsel for the respondent-Revenue by producing the record. We feel that it could be established from the record that the notice was issued within the statutory period of 8 years to the legal representatives. The appeal was decided by the Tribunal vide order dated December 17, 1986, and pursuant to the same, notice was issued to the legal representatives. Therefore, this position is admitted by learned counsel for the respondent that the notice, if any, issued to the legal representatives has been issued after the judgment of the Income-tax Tribunal. This factual position has not been rebutted. 11. Taking into consideration the relevant provision of law and the facts of the case, we find that the Assessing Officer has wrongly exercised the jurisdiction under sections 148 and 149 of the Income-tax Act in issuing the notice to the legal representatives, reopening the assessment after the expiry of limitation period. Accordingly, the orders of the appellate authority and the Tribunal are set aside and the assessment order passed by the Assessing Officer on September 27, 1972, holds water and is maintained. 12. So far as the question framed that notice to the dead person has been issued, is concerned, notices have no doubt been issued to the dead person. It is settled principle of law that the case cannot be decided in the absence of the affected party. Therefore, notice to the dead person was illegal. 13. For the aforesaid reasons, we answer the reference in favour of the assessee. It is settled principle of law that the case cannot be decided in the absence of the affected party. Therefore, notice to the dead person was illegal. 13. For the aforesaid reasons, we answer the reference in favour of the assessee. The reference is accordingly disposed of. *******