Nagpur Bench, Nagpur v. Pr. Commissioner Of Income Tax-1, Nagpur, Aaykar Bhawan, Civil Lines, Nagpur 440 001

IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH, NAGPUR. WRIT PETITION NO. 3285 OF 2021 PETITIONER:-Bandu Shambharkar Legal Heir ofMahadev Shambharkar, aged about 56years, R/o Plot No. 171, Kamptee Road,Nagpur-441002.Mahadev Shambharkar, aged about 56years, R/o Plot No. 171, Kamptee Road,Nagpur-441002. ...VERSUS... RESPONDENTS:- 1.Pr. Commissioner of Income Tax-1,Nagpur, Aaykar Bhawan, Civil Lines,Nagpur 440 001.Nagpur, Aaykar Bhawan, Civil Lines,Nagpur 440 001. 2.Income Tax Officer, Ward 1(1), MECL Building, Seminary hills, Civil Lines,Nagpur.Nagpur. 3. Income Tax Officer, Ward 3(4), MECLBuilding, Seminary hills, Civil Lines,Nagpur.Building, Seminary hills, Civil Lines,Nagpur. -------------------------------------------------------------------------------------------- Mr. Ram D. Heda, counsel for the petitioner. Mr. Anand Parchure, counsel for respondents. --------------------------------------------------------------------------------------------- CORAM : SUNIL B.SHUKRE & ANIL S.KILOR, JJ. DATE : 09.09.2021. O R A L J U D G M E N T (Per :Sunil B.Shukre, J.) Heard. 2. Rule. Rule made returnable forthwith. Heard finallyby consent of the learned counsel appearing for the parties. 3.There can be no dispute about the principle of Lawthat when there is a re-assessment or assessment is opened underSection 148 of the Income Tax Act, 1961 (herein after referred toas ‘the Act of 1961’) as required under Section 159 of the Act of1961, the proceedings can be continued against the legalrepresentatives only when the notice has been issued in the nameof the person, who is dead and that if the notice is issued to theassessee after his death, the proceedings could not be continuedagainst the legal representatives. This is the view taken by a Co-ordinate Division Bench of this Court at Principal Seat at Mumbaiin the case of Rupa Shyamsundar Dhumatkar Vs. AssistantCommissioner of Income Tax reported in Writ Petition No. 404 of2019 decided on 5[th] April 2019, by relying upon several judgmentsof different High Courts, in particular the judgments rendered byGujarat High Court in the case of Chandreshbhai Jayantibhai PatelV. ITO[2019]101 taxmann.com 362/261 Taxman 137/413 ITR 276 and Madras High Court in the case of Alamelu Veerappan V.ITO[2018]95 taxmann.com 155/257 Taxman 72. 4.In the present case also, the notice, under Section133(6) of the Act,1961 had been issued to the father of thepetitioner Mahadeo Janbaji Shambharkar on 18.01.2019. On thatday, the father of the petitioner, the assessee was alive. Father ofthe petitioner died on 27.01.2019. Therefore, notice under Section133(6) of the Act, 1961 issued on 18.01.2019 was valid. So, asheld in the aforesaid cases, the proceedings based upon a validnotice could be continued and taken forward against the legalrepresentatives in view of the provisions made under Section 159of the Income Tax Act. Of course, for that matter fresh notice willhave to be issued to the legal representatives. As of now, whathas emerged on record is that it is only the petitioner, who is thelegal representative and if there are any more legalrepresentatives, the petitioner would be at liberty to inform theirnames and addresses to the Income-Tax Department for theirbeing brought on record as legal representatives, as per law. 5. In view of above, the present notices can not surviveand they deserve to be quashed and set aside with appropriateliberty given to the Income Tax Department. 6.The Writ Petition is allowed. The impugned noticesare hereby quashed and set aside. Liberty is granted to therespondent No.3 to issue fresh notice to the legal representativesincluding the petitioner, as per law for re-assessment. 7. The petitioner is at liberty to disclose names of otherlegal representatives, apart from him to the Income TaxAuthorities, if any. 8.Rule accordingly. No costs. (ANIL S. KILOR,J) (SUNIL B. SHUKRE,J)