Rupa Shyamsundar Dhumatkar v. Asst. Commissioner Of Income Tax & Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.404 OF 2019 Rupa Shyamsundar Dhumatkar .... Petitioner versus Asst. Commissioner of Income Tax & Ors.... Respondents….... Mr.Vipul Shah, Advocate for Petitioner.Mr.Vipul Shah, Advocate for Petitioner. Mr.Sham Walve, Advocate for Respondent.Mr.Sham Walve, Advocate for Respondent. CORAM : AKIL KURESHI & SARANG V. KOTWAL, JJ.DATE: 05[th] APRIL, 2019. P.C. : 1. Heard learned Counsel for the parties for final disposalof the Petition. This Petition is filed by the widow of Late ShriShyamsundar Pundalik Dhumatkar. Late Shri ShyamsundarDhumatkar was engaged in his individual business. He filedreturn of his income till the year 2007-2008. According toPetitioner, however, since thereafter he had no taxable income,he had stopped filing returns of income. The Assessing Officerissued a notice dated 27/03/2018 in the name of Late Shri 2 / 3 08-WP-404-19.odtShyamsundar Dhumatkar under section 148 of the Income TaxAct, 1961 (for short ‘the Act’) reopening the assessment for theassessment year 2011-2012. Shri Shyamsundar PundalikDhumatkar expired on 14/10/2016. Thus, the notice dated27/03/2018 was issued on a dead person. The Petitioner as awidow and legal heir of the deceased Shri ShyamsundarDhumatkar brought these facts to the notice of the income taxdepartment. Despite this, the Assessing Officer issued a noticeunder section 142(1) of the Act on 29/08/2018 and thereforethe Petitioner has filed this Petition challenging the said noticedated 27/03/2018. 2. The facts are not seriously in dispute. The Petitionerhad produced the death certificate of Shri ShyamsundarDhumatkar before the Income Tax authorities, indicating that hedied on 14/10/2016. Thus, the impugned notice of reopening ofassessment was issued on a dead person. There are severaljudgments of different High Courts holding that the notice orreopening of assessment is invalid in law. A reference in this 3 / 3 08-WP-404-19.odtrespect can be made to a decision of Gujarat High Court in thecase of Chandreshbhai Jayantibhai Patel Vs The Income Tax Officer (Special Civil Application No.15172 of 2018, decidedon 10/12/2018). As also the decision of Madras High Court in the case of Alamelu Veerappan Vs. Income Tax Officer, Non- corporate Ward-2(2), Chennai, reported in (2018) 257 Taxman 72 (Madras). It is not necessary to refer to all thejudgments on the point. Suffice it to say, as per the settled law,notice for reopening of assessment against a dead person isinvalid. 3. In the result, the impugned notice is set aside. Petition is disposed of accordingly. Consequentially, the order ofassessment dated 31/12/2018 also stands annulled. (SARANG V. KOTWAL, J.) (AKIL KURESHI, J.)