JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr. R.G. Chaudhary with learned advocate Mr. Jasmin Vaddoriya for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondent. 2. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule on behalf of the respondent. 3. Having regard to the controversy involved which is in narrow compass, with the consent of the learned advocates for the parties, the matter is taken up for hearing. 4. By this petition under Article 227 of the Constitution of India, the petitioner has prayed for the following reliefs: “(B) This Hon’ble Court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, quashing and setting aside the notices issued by the Income Tax Department on the address of the petitioner. (C) This Hon’ble Court be pleased to direct the Income Tax Department not to issue demand notices in future on the address of the petitioner.” 5. Brief facts of the case are that the petitioner is grandson of late Karsanbhai Gagajibhai Padashala who expired on 13.03.2019. 6. Petitioner is residing at Una, District: Gir Somnath whereas his grandfather Late Karsanbhai was residing at Village: Khilavad, Tal. Gir-Gadhada, District: Gir-Somnath. 7. The respondent-Assessing Officer issued a notice under section 148 of the Income Tax Act,1961 [for short ‘the Act’] on the basis of the information that late grandfather of the petitioner deposited cash in State Bank of India of Rs. 14,50,000/- and had earned interest income of Rs. 31,839/- from Veraval Mercantile Co-operative Bank Ltd. during the Financial Year 2011-12 relevant to Assessment Year 2012-13 and he did not file return of income disclosing cash deposited in the bank account which had remained unexplained and on the basis of the same, notice dated 27.03.2019 was issued in the name of late grandfather of the assessee. 8. As the notice was issued at Village: Khilavad, no one could file any reply in response to the notice 02.08.2019 and subsequent notice dated 29.08.2019 issued under section 142(1) of the Act. Further, final show-cause notice dated 24.10.2019 and thereafter, assessment order dated 29.11.2019 was passed under section 144 read with section 147 of the Act assessing the total income of Rs. 17,31,839/-. Further, final show-cause notice dated 24.10.2019 and thereafter, assessment order dated 29.11.2019 was passed under section 144 read with section 147 of the Act assessing the total income of Rs. 17,31,839/-. A demand notice under section 156 of the Act was issued raising a demand of Rs. 9,86,200/-. Thereafter, notice under section 274 read with section 271F of the Act was also issued to levy the penalty. 9. Order under section 271F of the Act was passed on 03.01.2022 for levying the penalty of Rs. 5,000/-. 10. The petitioner, by letter dated 09.01.2020, informed the respondent- Assessing Officer that his grandfather had expired on 13.03.2019 prior to the issuance of notice for reopening in his name. It was further pointed out by learned advocate for the petitioner that no notice or any letter was received after death of his grandfather and requested the respondent-Assessing Officer to withdraw the assessment order passed by him along with letter. The petitioner also filed the death certificate of his grandfather. 11. Learned advocate Mr. R.G. Chaudhary for the petitioner submitted that issuance of notice for reopening under section 148 of the Act is bad in law as the same is issued in name of the deceased person and therefore, the consequential assessment order, the demand raised and the penalty order are required to be quashed and set aside. In respect of his submissions reliance was placed on the decision of this Court in case of Bhupendra Bhikhalal Desai vs. ITO, (2021) 130 Taxmann.com 196 and decision of Madras High Court in case of Estate of Late Rangalal Jajodia vs. Commissioner of Income Tax, Madras, (1971) 79 ITR 505 . 12. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent-Assessing Officer submitted that the petitioner ought to have challenged the impugned assessment order in the capacity of legal representative before the appellate authority and the petition should not be entertained. It was submitted that the Hon‘ble Apex Court in case of Commissioner of Income Tax and Ors. Karan Sanghani for the respondent-Assessing Officer submitted that the petitioner ought to have challenged the impugned assessment order in the capacity of legal representative before the appellate authority and the petition should not be entertained. It was submitted that the Hon‘ble Apex Court in case of Commissioner of Income Tax and Ors. vs. Chhabildas Agraval, (2013) 357 ITR 257 has held that only on the ground that the impugned notice was issued in the name of the deceased person and therefore the same is bad in law, is not tenable as the Assessing Officer has categorically recorded in the impugned order that the notices were served and therefore, it is presumed that the petitioner was aware about the notices issued by the Assessing Officer and the petitioner has failed to bring to the notice of the respondent-Assessing Officer about the death of his grandfather so as to initiate the proceedings against the legal heir. 13. It was therefore submitted that no interference be made while exercising extraordinary jurisdiction under Article 227 of the Constitution of India. 14. Having considered the submissions made by learned advocates for both the sides, the issue with regard to issuance of notice for reassessment under section 148 of the Act on a dead person is no more res integra in view of the decision of Bhupendra Bhikhalal (supra) wherein notice issued under section 153C of the Act against a dead person is held to be defective and consequently quashed and set aside. This Court in the aforesaid decision has held as under: “22. A Coordinate Bench of this Court, in the case of Chandreshbhai Jayantibhai Patel vs. Income Tax Officer, (2019) 101 taxmann.com 362 (Gujarat), had the occasion to consider an identical issue but in context with Section 148 of the Act. We should look into the observations made by the Coordinate Bench in the judgment, which read thus: “5. Mr. Chintan Dave, learned advocate for the petitioner submitted that the issuance of a valid notice is the foundation for the validity of the assessment. It was contended that the defect in procedure will normally not amount to lack of jurisdiction, however, the notice prescribed under section 148 of the Act for the purpose of initiation of reassessment proceedings is not a mere procedural requirement, but is a condition precedent to the validity of the assessment. It was contended that the defect in procedure will normally not amount to lack of jurisdiction, however, the notice prescribed under section 148 of the Act for the purpose of initiation of reassessment proceedings is not a mere procedural requirement, but is a condition precedent to the validity of the assessment. If no notice is issued or if the notice issued is shown to be invalid, the proceedings initiated would be invalid and void. The notice issued in the name of a dead person is not a valid notice and in the absence of issuance of a valid notice, the proceedings initiated under section 147 of the Act cannot be said to be valid. 5.1 It was further submitted that in this case, the notice has been issued to a dead person and hence, such notice is null and void. To initiate proceedings under section 147 of the Act, issuance of notice under section 148 of the Act to the heirs and legal representatives of the deceased is mandatory, in the absence of which the proceedings cannot be continued by issuance of notices under section 142(1) of the Act against the heirs. Reliance was placed upon the decision of this court in Rasid Lala v. Income Tax Officer, (2017) 77 Taxman.com 39 (Guj.) wherein the notice under section 148 of the Act was issued to the assessee long after he had passed away. The heir of the deceased informed the Assessing Officer that the assessee has passed away and, therefore, the notice under section 148 of the Act is invalid, despite which the heir was told to file the return of income in compliance of the said notice. The court held that the notice issued in the name of a dead person was not valid and that despite being informed about the death of the original assessee, the assessee, instead of taking corrective measures as provided under section 292B of the Act and issuing fresh notice to the heirs of the deceased, continued with the reassessment proceedings against the dead person. The court further held that section 159 of the Act would not be applicable to the facts of that case, and that, even if section 159 is attracted, the notice was required to be issued in the name of the heirs of the deceased assessee. Mr. The court further held that section 159 of the Act would not be applicable to the facts of that case, and that, even if section 159 is attracted, the notice was required to be issued in the name of the heirs of the deceased assessee. Mr. Dave submitted that the aforesaid decision would be squarely applicable to the facts of the present case and that the impugned notice dated 28.03.2018 issued under section 148 of the Act having been issued against a dead person as well as the subsequent notices issued pursuant thereto, are invalid and are, therefore, required to be quashed and set aside.” 15. This Court in case of Pravinkumar Premchand Patel L/R of Late Hiraben Premchand Patel vs. Income Tax Officer referring to the decision in case of Chandreshbhai Jayantibhai Patel vs. Income Tax Officer, (2019) 101 Taxmann.com 362 (Guj.) wherein, similar issue was considered and held as under: “12. In the backdrop of the aforesaid facts, it is an admitted position that the notice under section 148 of the Act was issued to a dead person. The petitioner being the heir and legal representative of the deceased, upon receipt of the notice, immediately raised objection against the validity of the impugned notice and did not submit to the jurisdiction of the Assessing Officer by filing a return of income, but kept on objecting to the continuation of the assessment proceedings pursuant to the impugned notice. The Assessing Officer, however, instead of taking corrective steps under section 292B of the Act and issuing notice to the heirs and legal representatives, insisted on continuing with the proceedings pursuant to the impugned notice which was issued in the name of a dead person. The Assessing Officer, however, instead of taking corrective steps under section 292B of the Act and issuing notice to the heirs and legal representatives, insisted on continuing with the proceedings pursuant to the impugned notice which was issued in the name of a dead person. Since strong reliance has been placed by the learned counsel for the respondent on the provisions of section 2(7) and 2(29) read with sections 159 and 292B of the Act, reference may be made to the said provisions, which read as under: “Section 2(7) “assessee” means a person by whom any tax or any other sum of money is payable under this Act, and includes: (a) every person in respect of whom any proceeding under the Act has been taken for the assessment of his income or of the income of any other person in respect of which he is assessable, or of the loss sustained by him or by such other person, or of the amount of refund due to him or to such other person. (b) every person who is deemed to be an assessee under any provision of this Act. (c) every person who is deemed to be an assessee in default under any provision of this Act: “Section 2(29) “legal representative” has the meaning assigned to it in clause (11) of section 2 of the Code of Civil Procedure, 1908.” “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): (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. (c) all the provisions of this Act shall apply accordingly. (b) any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative. (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 undercharged, 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.” 13. Thus, the expression “assessee” includes every person who is deemed to be an assessee under any provision of the Act. Sub-Section (3) of section 159 of the Act, postulates that the legal representative of the deceased shall, for the purposes of the Act, be deemed to be an assessee. Thus, the expression “assessee” includes every person who is deemed to be an assessee under any provision of the Act. Sub-Section (3) of section 159 of the Act, postulates that the legal representative of the deceased shall, for the purposes of the Act, be deemed to be an assessee. Sub-Section (2) of section 159 of the Act says that 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): (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. (c) all the provisions of the Act shall apply accordingly. 14. Thus, clause (a) of Sub-Section (2) of section 159 of the Act provides for the eventuality where a proceeding has already been initiated against the deceased before his death, in which case such proceeding 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. In the present case, the proceeding under section 147 of the Act had not been initiated against the deceased before his death, and hence, clause (a) would not be applicable in the facts of this case. 15. Clause (b) of Sub-Section (2) of section 159 of the Act provides that any proceeding which could have been taken against the deceased if he had survived may be taken against the legal representative. The present case would, therefore, fall within the ambit of section 159(2)(b) of the Act and, hence, the proceeding can be taken against the legal representative. Clause (b) of Sub-Section (2) of section 159 of the Act provides that any proceeding which could have been taken against the deceased if he had survived may be taken against the legal representative. The present case would, therefore, fall within the ambit of section 159(2)(b) of the Act and, hence, the proceeding can be taken against the legal representative. Now, it cannot be gainsaid that a proceeding under section 147 of the Act of reopening the assessment is initiated by issuance of notice under section 148 of the Act, and as a necessary corollary, therefore, for taking a proceeding under that section against the legal representative, necessary notice under section 148 of the Act would be required to be issued to him. In the present case, the impugned notice under section 148 of the Act has been issued against the deceased assessee. In the opinion of this court, since this is not a case falling under clause (a) of sub-section (2) of section 159 of the Act, the proceeding pursuant to the notice under section 148 of the Act issued to the dead person, cannot be continued against the legal representative. 16. On behalf of the revenue, it has been contended that issuance of the notice to the dead assessee is merely a technical defect which could be corrected under section 292B of the Act. Reliance has been placed on the above referred decisions of the Supreme Court as well as the High Courts for contending that the proceedings would not be null and void merely because the notice has been issued against a dead person as the legal representative had received the notice and has objected to the validity of the notice and further continuation of the proceedings. In the opinion of this court, here lies the distinction between those cases and the present case. In the opinion of this court, here lies the distinction between those cases and the present case. In the relied upon cases, the legal representative, in response to the impugned notice, filed return of income and participated in the proceeding and then raised an objection to the validity of the proceeding and, therefore, the court held that this was a case of waiver and that a technical defect can be waived; whereas in this case, right from the inception the petitioner has objected to the validity of the notice and thereafter to the continuation of the proceeding and has at no point of time participated in the proceeding by filing the income tax return in response to the notice issued under section 148 of the Act. Had the petitioner responded to the notice by filing return of income, he could have been said to have participated in the proceedings, however, merely because the petitioner has informed the Assessing Officer about the death of the assessee and asked him to drop the proceedings, it cannot, by any stretch of imagination, be construed as the petitioner having participated in the proceedings.” 16. The Hon’ble Supreme Court by order dated 03.09.2021 passed in Special Leave to Appeal No. 13061/2021 dismissed the SLP confirming the order passed by this Court in case of Bhupendra Bhikhalal (supra). 17. In view of the above conspectus of law, the petition succeeds and is accordingly allowed. Impugned notice dated 27.03.2019 issued under section 148 of the Act and consequential assessment order dated 29.11.2019 passed under section 144 read with section 147 of the Act as well as the order dated 23.01.2022 passed under section 271F levying penalty of Rs. 5000/- are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No order as to costs.