Thakkar v. Income Tax Officer, (2018) 401 Itr

IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 18 DAY OF FEBRUARY, 2020. BEFORE THR HON'BLE MR. JUSTICE KRISHNA S.DIXIT| ;WRIT PETITION NO. 27792 OF 2020 (IT) BRTWEHRE HIRKBMAGALUR NARASIMHAIYRBRNGAR JAYAR(DEAD)REP SMT. SHANTHA JAYARAM (WIFE)AGED 76 YEARS,R/AT 100, GREY BARN ROAD,JACKSONVILLE, NC-28540NOW AT NO.959 /29NAGHASIMHA#[‘T]MAIN, 2 BLOCK,JAYANAGAR,BANGALORE - 560 O11 _.. PHTITIONER (BY SRI. M V SHESHACHALA, SENIOR COUNSEL FORSRI. ARAVAIND V CHAVAN, ADVOCATE)SRI. ARAVAIND V CHAVAN, ADVOCATE) AND: 1,ASSISTANT COMMISSIONER.OF INCOME TAXINTERNATIONAL TAXATION, CIRCLE-1(2)BMTC BUILDING80 FEET ROAD,KORAMANAGALA|BENGALURU - 560 O95. oDDEBPUTY COMMISSIONEROF INCOME TAXINTERNATIONAL TAXATION, CIRCLE-1(2)BMTC BUILDING,|80 FEET ROAD,KORAMANAGALA,BENGALURU - 560 O95. 3)COMMISSIONER OF INCOME TAXINTERNATIONAL TAXATION,BMTC BUILDING80 FEET ROAD,KORAMANAGALA,BENGALURU - 560 O95.INTERNATIONAL TAXATION,BMTC BUILDING80 FEET ROAD,KORAMANAGALA,BENGALURU - 560 O95. _ RESPONDENTS. (BY SRI. JEEVAN J NEERALGI, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &|ID7 OF THR CONSTITUTION OF INDIA PRAYING TO DECLARE.THAT THR SALK CONSIDERATION RISING FROM THR SALE.DATED 17.02.2011 HAVING BEEN SEKLF-ASSEKESSED IN THANDS OF M/S DAFFODIL DESIGNERS AND DEVELOPERS|PVT LTD., WHO RECEIVED THE CONSIDERATION AMOUNTCANNOT BRK BROUGHT TO TAX IN THR HANDS OF THEPRTITIONBR WHO HAS NOT RBECKIVED THERE CONSIDBRATIAMOUNT FOR ASSESSMENT YEAR 2011-12.) THISPRTITION|COMINGON|KOR|PRELIMINARYHEARING IN ‘B’ GROUP|THIS DAY, THE COURT MADE THE.RKOLLOWING:- ORDER Petitioner claiming to be the widow of deceased|assessee Sri H.N.Jayaram is knocking at the doors of WritCourt for assailing the order dated 11.12.2019, made bythe first respondent, a copy whereof is at Annexure-M,wherebyex partere-assessment of income of the deceased|has been done u/s.144 r/w Sec.147 of the Income Tax Act,1961, after re-opening the concluded proceedings. 2. Aiter service of notice, the respondents having|entered appearance through their Senior Panel Counsel resist the writ petition making submission in justificationof the impugned orders. 3. Having heard the learned counsel for the partiesand having perused the petition papers, relief needs to beeranted to the petitioner because: (a) re-opening of the assessment being a seriousmatter, the procedure prescribed by law needs to bestrictly adhered to; Section 142 (1) of the Act prescribesissuance of notice to the assessee as Qfsine qua nonforreopening the assessment proceedings; (ob) the original assessee Sri H.N.Jayaram having)died on 07.02.2015, which fact is evidenced by a copy ofthe Death Certificate now placed on record by a memo, thenotice dated 31.03.2018 could not have reached thedeceased, is not in dispute; legal personality of a naturalperson comes to an end with his death, says ‘salmond’sJurisprudence’; thus apparently there was no notice eitherto the assessee or those who represent his estate, after thedemise;however, theimpugnedordershavebeenstructured on a wrong premise that notice has duly beenserved on the assessee, when apparently it was not; and, (Cc) the Division Bench of Hon’ble High Court of)Gujarat in the case ofJAYDEEPKUMAR DHIRAJLAL THAKKAR vs. INCOME TAX OFFICER, (2018) 401 ITR| 0302 (GUJ)|in more or less a simular set of facts has heldthat the notice u/s.148 of the Act having been issuedagainst a dead person being incompetent, the proceedingsthat have been tounded on such a notice are a nullity andtherefore cannot be sustained. | In the above circumstances, this writ petition|succeeds; a Writ of Certiorari issues quashing theimpugned order dated 11.10.2019; however, it is open tothe respondents to proceed against the estate of thedeceased by issuing notice to his legal representatives, inaccordance with law. All contentions of the parties are otherwise kept!Ope?nl. No costs. snb/| Sd/-|JUDGE