Income Tax Officer, Ward-47(1), Kolkata v. Gita Devi Goenka And Others

OD-8 APOT/142/2023IA NO: GA/2/2023IN THE HIGH COURT AT CALCUTTACIVIL APPELLATE JURISDICTIONORIGINAL SIDE INCOME TAX OFFICER, WARD-47(1), KOLKATAVSGITA DEVI GOENKA AND OTHERS BEFORE : THE HON’BLE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 17[th] July, 2023 Appearance :Mr. Om Naraian Rai, Adv.Mr. Amit Sharma, Adv.Mr. Suprovat Banerjee, Adv.… for the appellantMr. Arun Kumar Upadhyay, Adv.Ms. Shobha Upadhyay, Adv.…for respondents The Court : This intra-Court appeal by the department isdirected against the judgement and order dated November 22, 2022,by which the learned Single Bench quashed the entire re-assessmentproceedings on the ground that the re-assessment cannot beproceeded against a dead person. It is submitted by Mr. Om Narain Rai, learned standing Counselappearing for the appellant, that the first notice issued under Section 148 of the Act dated 30[th] July, 2022 was served on the assessee andthe assessee was alive at the relevant point of time. Thereafter, whenthe amendment was made to the statute and Section 148A wasinserted, fresh notice was served on the assessee, who was alive at therelevant point of time. It is thereafter, the assessing officer has passedan order under Section 148A(d) of the Act dated 28[th] July, 2022 andissued consequential notice under Section 148, dated 30[th] July, 2022,which was impugned in the writ petition. In our considered view, if the Court had to grant relief on theground that re-assessment proceedings cannot proceed against a deadperson, facts needs to be gone into. More so, the department takes astand that both notices, issued under Section 148 as well as Section148A(d) of the Act were served on the assessee who was alive at therelevant time. Therefore, we are of the view that the writ petitionshould be heard on merits after giving an opportunity to thedepartment to file their affidavit-in-opposition. For the above reason alone, the order impugned before us isinterfered. In the result, the appeal is allowed. The order passed in thewrit petition is set aside and the writ petition is restored to file of thelearned Single Bench with a direction to the appellant department tofile their affidavit-in-opposition within three weeks from date andreply, if any, within two weeks thereafter. Let the writ petition be listed before the appropriate learnedSingle Bench on 23[rd] August, 2023. Till then the re-assessmentproceedings shall remain stayed. The respondent assessee is at liberty to canvass all points in thewrit petition and also is at liberty to file reply to the affidavit-in-opposition, which has been directed to be filed by the department. The application accordingly also is disposed of. (T.S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.)