Chittewan v. The Income Tax Offcer-Ward 27(3)(1),Room

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.3651 OF 2022 Shailesh Shah, Legal Heir ofLate Shri Ramniklal Harilal Shah,Vistavan, 502, The Address Wadhwa,LBS Marg, Ghatkopar (West), Mumbai-400 086(Assessment Year 2014-15)…Petitioner Versus 1. The Income Tax Offcer-Ward 27(3)(1),Room No.422, 4[th] Floor, Tower No.6,Vashi Railway Station, Vashi,Navi Mumbai-400 706. 2. The National Faceless AssessmentCentre, Delhi Government of India,North Block, New Delhi-110 001. 3. Union of India,Through the Secretary, Department of Revenue, Ministry of Finance,Government of India,North Block, New Delhi-110 001.…Respondents *** Mr. Ratan Samal i/b Mr. Manohar Samal for the Petitioner.Mr. Suresh Kumar for the Respondent. *** CORAM : DHIRAJ SINGH THAKUR & VALMIKI SA MENEZES, JJ. DATE : 23 SEPTEMBER 2022 : ORDER : (PER DHIRAJ SINGH THAKUR, J.) .The notice under Section 148 of the Income Tax Act, 1961(“the Act), dated 30 March 2021 for the relevant assessment year Chittewan 2014-15, came to be issued against the Petitioner’s fatherShri Ramniklal Harilal Shah. Reply to the notice was submitted bythe Petitioner informing the assessing offcer that the assessee hassince passed away on 3 February 2016. A copy of the deathcertifcate was also submitted to said offcer. The stand of thePetitioner before the assessing offcer was that no proceeding couldbe initiated or permitted to be continued against a dead person. 2The objection was considered by the assessing offcer, butrejected in the following terms : “The assessee has objected to the re-openingproceedings stating that Mr. Ramniklal H. Shahhas passed on 03.02.2016 and that the proceedingagainst the assessee is invalid. In this regard, it isstated that notice u/s 148 of the I.T. Act was issuedon 30.03.2021 and at the time of issue of notice,there was no information available in the offce toestablish that Ramniklal H. Shah was alive, unlessthe same was informed by the LH/AR to theDepartment in view of the above, the notice u/s148 is valid and the proceedings is being continuedthrough the Legal Heir Shailesh R. Shah.” 3The assessing offcer fnally proceeded to pass the order ofassessment dated 31 March 2022 against the deceased assessee.The said Order is unsustainable as the entire reassessmentproceedings were initiated and the Order impugned passed againsta dead person, which makes the Order invalid and non est in theeyes of law. 4This Court in the case of Dipak Tanna Vs. Income Tax Offcer[1], has held that the notice issued to a dead person is not valid.Reliance in this regard can also be placed in the case of Income TaxOffcer Ward 1(3)(7), Surat Vs. Durlabhbhai Kanubhai Rajpara.[2] Inthis case, it was held that a notice issued under Section 148 of theAct against a dead person would be invalid, unless the legalrepresentatives submit to the jurisdiction of the Assessing Offcerwithout raising any objection. Consequently, where the legalrepresentatives do not waive their right to a notice under Section148 of the Act, it cannot be said that the notice issued against thedead person is in conformity with and with intent and purpose ofthe Act. 5Be that as it may, the Order of assessment impugned in thepresent Petitions dated 31 March 2022 and the notice of demanddated 30 March 2021 are quashed and Writ Petition are allowedaccordingly. (VALMIKI SA MENEZES, J.) (DHIRAJ SINGH THAKUR, J.) RAJESHDigitally signed byRAJESH VASANTVASANTCHITTEWANCHITTEWANDate: 2022.09.2811:49:22 +0530 2[2020] 114 taxman.com 482 (SC)