Sh Hari Om Gupta v. Commissioner Of Income Tax, Alawar

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 19926/2019 Sh Hari Om Gupta S/o Shri Murari Lal, Aged About 70 Years,Kumher, Bharatpur. ----Petitioner Versus 1. Commissioner Of Income Tax, Alawar 2. The Income Tax Officer, Ward (3), Bharatpur. ----Respondents For Petitioner(s) : Mr. PK KasliwalFor Respondent(s): Mr. Anuroop Singhi withFor Respondent(s): Mr. Anuroop Singhi with Ms. Anushka Jain HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE PRAVEER BHATNAGAR Order 09/10/2023 Heard. The issue is only with regard to payment of balance amountof refund payable to the petitioner. Learned counsel for the petitioner referring to variousaverments made in the petition, orders passed by variousauthorities and also averments in the rejoinder would submit thatout of total refund amount of Rs.17,64,487/- payable to himunder various orders upon final adjudication between the parties,he has been paid Rs.3,85,770/- on 13.04.2011, Rs.4,82,910/- on14.06.2013 and a further amount of Rs.2,41,157/- on 08.05.2023thus total amount of refund which he has received isRs.11,09,837/-. According to the petitioner, balance amount ofRs.6,54,650/- is still outstanding. According to the learned counsel for the respondents,appropriate adjustment toward demand against Late Sh. MurariLal Gupta, both in individual and AOP capacity has been done withprior intimation to the petitioner. The only issue of fact, which arises for consideration as towhether demand was issued in respect of an assessment madeagainst Late Sh. Murari Lal Gupta in his capacity as individual andthen as AOP. In reply to averment in the writ petition para (5 (ii) ) it hasbeen stated that after carrying out the assessment in respect ofSh. Murari Lal Gupta under Section 158BD (158BC r.w.s. 158BD)in respect of the period 01.04.1986 to 12.09.1995 in the status ofindividual and then for period 13.09.1995 to 25.02.1997 in thestatus of AOP, demands were created. In the rejoinder there is nospecific denial to this fact. The stand taken by respondent is basedon the provision contained Section 159 of the IT Act. Section 159 of the IT Act reads as under: “159. Legal representatives.—(1) Where aperson dies, his legal representative shall beliable to pay any sum which the deceasedwould have been liable to pay if he had notdied, in the like manner and to the same extentas the deceased. (2) For the purpose of making an assessment(including an assessment, reassessment orrecomputation under section 147) of theincome of the deceased and for the purpose oflevying any sum in the hands of the legalrepresentative in accordance with theprovisions of sub-section (1),— (a) any proceeding taken against thedeceased before his death shall be deemed tohave been taken against the legalrepresentative and may be continued againstthe legal representative from the stage at which it stood on the date of the death of thedeceased; (b) any proceeding which could have beentaken against the deceased if he had survived,may be taken against the legal representative;and (c) all the provisions of this Act shallapply accordingly. (3) The legal representative of the deceasedshall, for the purposes of this Act, be deemedto be an assessee. (4) Every legal representative shall bepersonally liable for any tax payable by him inhis capacity as legal representative if, while hisliability for tax remains undischarged, hecreates a charge on or disposes of or parts withany assets of the estate of the deceased, whichare in, or may come into, his possession, butsuch liability shall be limited to the value of theasset so charged, disposed of or parted with. which it stood on the date of the death of thedeceased; (b) any proceeding which could have beentaken against the deceased if he had survived,may be taken against the legal representative;and (c) all the provisions of this Act shallapply accordingly. (3) The legal representative of the deceasedshall, for the purposes of this Act, be deemedto be an assessee. (4) Every legal representative shall bepersonally liable for any tax payable by him inhis capacity as legal representative if, while hisliability for tax remains undischarged, hecreates a charge on or disposes of or parts withany assets of the estate of the deceased, whichare in, or may come into, his possession, butsuch liability shall be limited to the value of theasset so charged, disposed of or parted with. (5) The provisions of sub-section (2) of section161, section 162, and section 167, shall, so faras may be and to the extent to which they arenot inconsistent with the provisions of thissection, apply in relation to a legalrepresentative. (6) The liability of a legal representative underthis section shall, subject to the provisions ofsubsection (4) and sub-section (5), be limitedto the extent to which the estate is capable ofmeeting the liability.” Obviously, if a demand has already been created after acompleted assessment, the department is entitled to carry outnecessary adjustments in view of provision contained Section 159of the IT Act. In view of the aforesaid legal position, the factual aspects ofthe matter need to be verified by the respondent authority. As thedate on which the demand was created as alleged in the pare 5.2of the reply, is not placed on record, the respondent authorityshall verify whether a demand was created against Sh. Murari Lal Gupta. If there was no demand created against Sh. Murari LalGupta, the provisions contained Section 159 of IT Act would notbe taken recourse to with the result that the balance amount ofrefund as stated by the petitioner in his rejoinder, i.e.Rs.6,54,650/- shall be liable to be paid to the petitioner along withinterest as payable under the law. The aforesaid exercise is required to be completed by therespondent No.2 within a period of 45 days from the date ofreceipt of copy of this order and the necessary order is required tobe passed forthwith. In case grievance is not redressed, it will beopen for the petitioner to take appropriate remedy available underthe law. The writ petition is disposed of. (PRAVEER BHATNAGAR),J(MANINDRA MOHAN SHRIVASTAVA),J 108- Mohit Kumar