Hemraj Soni Legal Heir Of Late Indramal Soni v. Income Tax Department, Ito Ward

[2025:RJ-JP:21981-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 10202/2023 Hemraj Soni Legal Heir Of Late Indramal Soni, Aged About 42Years, R/o 115, Shri Shri Mal Bhawan, Sabji Mandi, Bijainagar,Ajmer - 305624. ----Petitioner Versus 1. Income Tax Department, Ito Ward 1, Beawar, CourtCampus, Ajmer Road, Beawar, Rajasthan, 305901.Campus, Ajmer Road, Beawar, Rajasthan, 305901. 2. Central Board Of Direct Taxes, Through Chairperson Type-7, Bungalow No. 75, New Moti Bagh, New Delhi- 110021.7, Bungalow No. 75, New Moti Bagh, New Delhi- 110021. ----Respondents HON'BLE MR. JUSTICE AVNEESH JHINGAN HON'BLE MR. JUSTICE MUKESH RAJPUROHIT 26/05/2025 Order 1.This petition is filed challenging the order dated 30.05.2023passed under Section 148 and 148A(d) of the Income Tax Act,1961 (for short ‘the Act’). 2.One of the grievance raised is that the order has beenpassed against a dead person who died prior to initiation of theproceedings. 3.Learned counsel for the parties are at ad idem that the issueinvolved in the present petition is squarely covered by the order ofDivision Bench of this Court in DBCWP No.7882/2022 titled as Shri Radha Mohan Khandelawal vs. Assistant Commissioner ofIncome Tax wherein following order was passed:- “Heard. Mr. Amit Malani, Advocate, on instructions from Mr. NikhilSimlote, Advocate on advanced copy, appears on behalf ofthe respondents. The orders and proceedings under Section 148 of theIncome Tax Act, 1961 (hereinafter referred to as ‘the Act’)have been challenged on the ground that it was initiatedand passed against the dead person and in any case inview of the judicial pronouncement of the Hon’bleSupreme Court in the case of Union of India & Others Vs.Ashish Agarwal (Civil Appeal No. 3005/2022 and batch ofappeals), the notices which were issued under Section148 of the Act have been treated as Section148-A ofthe Act and proceedings may be drawn afresh. Asthe factual aspect of the case that even beforeissuing of notice dated 25.06.2021, Anguri DeviKhandelwal died on 10.03.2021, is admitted bycounsel for respondent, the notices and theproceedings drawn would be nullity. As far as the legal position with regard to applicabilityof judgment of Hon’ble Supreme Court in the case ofUnion of India & Others Vs. Ashish Agarwal (supra) isconcerned, the same is not disputed by the learnedcounsel for the respondent. Considering the above,we are inclined to dispose off the petition in terms ofthe order passed by the Hon’ble Supreme Court inthe case of Union of India & Others Vs. AshishAgarwal (supra). Following directions have been issued by the Hon’bleSupreme Court in the aforesaid case: “10. In view of the above and for the reasonsstated above, the present Appeals are ALLOWEDIN PART. The impugned common judgments andorders passed by the High Court of Judicature atAllahabad in W.T. No. 524/2021 and other alliedtax appeals/petitions, is/are hereby modifiedand substituted as under:- (i) The impugned section 148 notices issued to the respective assessees which were issuedunder unamended section 148 of the IT Act,which were the subject matter of writ petitionsbefore the various respective High Courts shall be deemed to have been issued under section148A of the IT Act as substituted by the FinanceAct, 2021 and construed or treated to be show-cause notices in terms of section 148A(b). Theassessing officer shall, within thirty days fromtoday provide to the respective assesseesinformation and material relied upon by theRevenue, so that the assessees can reply to theshow-cause notices within two weeksthereafter; (i) The impugned section 148 notices issued to the respective assessees which were issuedunder unamended section 148 of the IT Act,which were the subject matter of writ petitionsbefore the various respective High Courts shall be deemed to have been issued under section148A of the IT Act as substituted by the FinanceAct, 2021 and construed or treated to be show-cause notices in terms of section 148A(b). Theassessing officer shall, within thirty days fromtoday provide to the respective assesseesinformation and material relied upon by theRevenue, so that the assessees can reply to theshow-cause notices within two weeksthereafter; (ii) The requirement of conducting any enquiry,if required, with the prior approval of specifiedauthority under section 148A(a) is herebydispensed with as a one-time measure vis-à-visthose notices which have been issued undersection 148 of the unamended Act from01.04.2021 till date, including those which havebeen quashed by the High Courts. Even otherwise as observed hereinabove holdingany enquiry with the prior approval of specifiedauthority is not mandatory but it is for theconcerned Assessing Officer to hold any enquiry,if required; (iii) The assessing officers shall thereafter passorders in terms of section 148A(d) in respect ofeach of the concerned assessees; Thereafterafter following the procedure as required undersection 148A may issue notice under section148 (as substituted); (iv) All defences which may be available to theassessees including those available undersection 149 of the IT Act and all rights andcontentions which may be available to theconcerned assessees and Revenue under theFinance Act, 2021 and in law shall continue tobe available. 11. The present order shall be applicable PANINDIA and all judgments and orders passed bydifferent High Courts on the issue and underwhich similar notices which were issued after01.04.2021 issued under section 148 of the Actare set aside and shall be governed by thepresent order and shall stand modified to theaforesaid extent. The present order is passed inexercise of powers under Article 142 of theConstitution of India so as to avoid any further appeals by the Revenue on the very issue bychallenging similar judgments and orders, with aview not to burden this Court withapproximately 9000 appeals. We also observethat present order shall also govern the pendingwrit petitions, pending before various HighCourts in which similar notices under Section148 of the Act issued after 01.04.2021 areunder challenge. 12. The impugned common judgments andorders passed by the High Court of Allahabadand the similar judgments and orders passed byvarious High Courts, more particularly, therespective judgments and orders passed by thevarious High Courts particulars of which arementionedhereinabove,shallstandmodified/substituted to the aforesaid extentonly. All these appeals are accordingly partly allowed to the aforesaid extent. In the facts of the case, there shall be no orderas to costs.” Learned counsel for the respondent would submitthat he may be granted liberty to proceed against thelegal representative of the deceased in accordancewith the directions given by the Hon’ble SupremeCourt in the case of Union of India & Others Vs.Ashish Agarwal (supra), which learned counsel forthe petitioner does not dispute. In view of the above, this writ petition is finallydisposed off in terms of order dated 04.05.2022passed by the Hon’ble Supreme Court in the case ofUnion of India & Others Vs. Ashish Agarwal(supra), granting liberty to proceed against legalrepresentative of deceased Anguri Devi Khandelwal.” 4.The petition is disposed of in the same terms. (MUKESH RAJPUROHIT),J(AVNEESH JHINGAN),J