Chittewan v. The Income-Tax Offcer 24(3)(1)Mumbai, Having His Offce At Room

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.4871 OF 2022 Prakash Tatoba Toraskar Through Legal Heir Kiran Toraskar815, Adarsh Nagar, New Link Road,Opp. Lokhandwala Complex,Andheri (West), Mumbai-400 058Maharashtra PAN : …Petitioner Versus 1. The Income-tax Offcer 24(3)(1)Mumbai, having his offce at Room No.303,3[rd] Floor, Kautiya Bhavan, C-41 to C-43,G-Block, Bandra Kurla Complex,Bandra (East), Mumbai-400 051. 2. Principal Commissioner of Income Tax-20, Mumbai having his offce at AayakarBhavan, M.K. Road, Chuchgate,Mumbai-400 020 3. National Faceless Assessment Centre,having its offce at National e-AssessmentCentre, Delhi 4. The Union of IndiaThrough the Secretary,having offce at Aayakar Bhavan,M.K. Road, Churchgate,Mumbai-400 020…Respondents*** Mr. Yahya Ghoghari a/w Mr. Mustafa Shabbir Shamim i/b Shamaim& Co. for the Petitioner.Mr. Suresh Kumar for the Respondents. *** CORAM : DHIRAJ SINGH THAKUR & KAMAL KHATA, JJ. RESERVED ON : 20 JANUARY 2023 PRONOUNCED ON : 10 FEBRUARY 2023 O R D E R Per DHIRAJ SINGH THAKUR, J. .The Petitioner challenges notices issued under Section 148 ofthe Income Tax Act, 1961 (“the Act”) dated 30 June 2021 and 20June 2022 and the Order under Section 148A(d) dated 30 June2022 on the ground that the the re-assessment proceedings havebeen initiated against a dead person. 2It is stated that the Respondents have issued a notice underSection 148 dated 30 June 2021, in the name of the father of thePetitioner, namely, Prakash Tatoba Toraskar, who had alreadyexpired on 4 November 2019. The death certifcate issued byMunicipal Corporation of Greater Mumbai is also placed on recordto support this fact. It is stated that the said notice had not beenchallenged in any writ proceedings before the Court and ordinarilythe matter should have rested there. However, pursuant to thejudgment of the Apex Court in the case of Union of India Vs. AshishAgarwal[1], the Respondents then vide communication dated 20 May2022 acting in purported compliance of the said judgment treatedthe earlier notice issued under Section 148 of the Act to be a notice 12022 SCC Online SC 543 Chittewan under Section 148A(b) provided information to the deceasedPrakash Tatoba Toraskar and sought reply thereto, so thatnecessary Order in terms of Section 148A(d) could be passed. SincePrakash Tatoba Toraskar had already expired, his legal heir KiranToraskar submitted a response informing the assessing offcerabout the factum of death of the assessee. A copy of the deathcertifcate was also furnished along with the response. It is also notout of place to mention that since the communication dated 20 May2022 purporting to be a notice under Section 148A(b) had beenaddressed in the name of the deceased, the legal heir of thedeceased, therefore, did not consent to participate in theassessment proceedings. 3Not withstanding the above mentioned objection having beentaken by the legal heir of the deceased, an Order under Section148A(d) came to be passed on 30 June 2022. From the facts asthey emerge from the record, thus, make it clear that initial noticeunder Section 148 was in the name of the deceased and so was thesubsequent communication dated 20 May 2022 purporting to be anotice in terms of Section 148A(b), it is settled law that noticeissued under Section 148 of the Act against a dead person would beinvalid, unless the legal representatives submit to the jurisdiction of the Assessing Offcer without raising any objection. Reference inthis regard can be made in the case of Income Tax Ward 1(3)(7),Surat Vs. Durlabhbhai Kanubhai Rajpara[2]. 4Be that as it may, the Petition is allowed. Notices issuedunder Section 148 of the Income Tax Act, 1961 (“the Act”) dated 30June 2021 and 20 June 2022 and the Order under Section 148A(d)dated 30 June 2022 are set aside. the Assessing Offcer without raising any objection. Reference inthis regard can be made in the case of Income Tax Ward 1(3)(7),Surat Vs. Durlabhbhai Kanubhai Rajpara[2]. 4Be that as it may, the Petition is allowed. Notices issuedunder Section 148 of the Income Tax Act, 1961 (“the Act”) dated 30June 2021 and 20 June 2022 and the Order under Section 148A(d)dated 30 June 2022 are set aside. (KAMAL KHATA, J.) (DHIRAJ SINGH THAKUR, J.) Digitally signed byRAJESHRAJESH VASANTVASANTCHITTEWANCHITTEWANDate: 2023.02.1019:12:22 +0530