The Allahabad High Court has held that a notice issued under Section 148 of the Income Tax Act, 1961 in the name of an assessee who was already dead on the date of its issuance is void ab initio, rendering every proceeding taken pursuant to it null and void. It held that the defect goes to jurisdiction and is not a mistake, defect or omission curable under Section 292B of the Act.

Section 148 of the Act requires the assessing officer to serve a notice on the assessee to reopen a past year's assessment upon credible evidence that taxable income has escaped assessment. Section 149 caps the window within which such a notice may be issued. Section 159 allows the department to continue proceedings against the legal representative of the deceased upon the death of the assessee.

Section 292B provides that no return, assessment, notice, summons or other proceeding shall be invalid merely by reason of a mistake, defect or omission, if it is in substance and effect in conformity with the intent and purpose of the Act. Section 292BB deems a notice to have been duly served where the assessee has appeared in the proceedings or cooperated in the inquiry without objecting to service.

The bench of Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary held

“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.”

Petitioner's husband, employed as Chief Management Officer in the U.P. Secretariat, purchased a residential flat in Grand Omaxe, Lucknow along with his son on October 15, 2020 for a total consideration of Rs. 82,83,353/-, of which he paid Rs. 55,52,954/- through banking channels. A search under Section 132 of the Act was conducted on the Omaxe group on April 1, 2021, in which a cash transaction of Rs. 25,97,000/- was alleged against him.

The assessee died on January 7, 2024. After completing the last rites, petitioner left for the United States and returned in September 2024, whereafter she instructed her chartered accountant to file her husband's return. The return was filed in the name of the deceased and verified through his Aadhaar OTP.

On the strength of a discrepancy of Rs. 27,44,000/- traced to the seized documents, and after approval from the Principal Commissioner of Income Tax, notice under Section 148 was issued on March 28, 2025 in the name of the deceased for Assessment Year 2021-22. A notice under Section 142(1) followed on January 7, 2026.

Petitioner replied on February 2, 2026 informing the department of her husband's death and objecting that proceedings against a dead person were void ab initio. The Department rejected the objections on February 20, 2026 on grounds that it had never been intimated of the death, and that the factum of death had been actively misrepresented by the filing of the return. The Department substituted the petitioner's name for that of the deceased, and directed compliance with the earlier notices.

The reassessment order under Section 147 and the consequential demand order under Section 156 were passed on March 24, 2026 in petitioner's name, assessing additional income of Rs. 69,06,520/- and a tax liability of Rs. 39,67,330/- on the unaccounted cash transaction. This was challenged by the petitioner before the High Court.

The Court held that Section 159 of the Income Tax Act cannot be pressed into service to continue such proceedings initiated in the name of the deceased against his legal heirs. It further held that the statute does not require the legal representative to intimate the department about the assessee's death. It held that proceedings under Section 148 ought to be initiated against the legal heirs only and not against the deceased.

The Court held that a notice issued to a dead person is not in substance in conformity with Section 148, which is the foundation for reopening an assessment and under which jurisdiction can be acquired only if the notice goes to the correct person.

Rejecting the plea of waiver of objections filed by the heirs, the Court held that Section 292BB applies only where the assessee has himself appeared or cooperated in the inquiry. It held that the primary condition for its invocation was absent because the assessee was dead when the notice was issued and it was his wife who responded.

“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 the assessee, he should not be allowed to take advantage of certain procedural defects.”, the court ruled.

It observed that the petitioner had objected to the validity of the notice from the inception and had at no stage produced documents in response to the Section 142 notice. The court held that participation by the legal representative could not confer jurisdiction where the statute itself did not.

Noting that the return had been filed contrary to Section 140 of the Act, the Court held that the revenue was at liberty to proceed against the petitioner in accordance with law, including for false verification under Section 277. It nonetheless held that this could not save the notice.

“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 notice which is void ab initio taking the plea that the petitioner had acted in an illegal manner.”

Holding that equity has little or no role in the interpretation of taxing statutes, particularly where the provision confers jurisdiction on the assessing authority, the Court held that reassessment must be tested solely against the statutory requirements and that non-fulfilment of the conditions precedent renders the proceedings void irrespective of the tax at stake.

The Court called the case an illustration of a lackadaisical attitude on the part of the department, which had initiated, pursued and concluded reassessment against a dead person despite categorical intimation of his death.

“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.”

Accordingly, the Court quashed the notice under Section 148 of the Act and set aside all proceedings, orders and demands consequential to it.

Case Title: Smt. Asha Dubey v. Union of India Thru. Secy. Ministry of Finance Deptt. Revenue Sectt. New Delhi and 2 others

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