T.palani,Legal Heir Of Late Mr.kanniappanthiruvengadam v. Assistant Commissioner Of Income Tax,Non-Corporate Circle-10(1),Nungambakkam, Chennai-34

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 30-07-2019CoramTHE HONOURABLE MR. JUSTICE M.SUNDARW.P.No.2531 of 2019AndW.M.P. Nos.2805 and 2806 of 2019 T.Palani,Legal heir of Late Mr.KanniappanThiruvengadam, No.11, Perambur High Road,Jamaliya,Chennai-600 012. ..Petitioner vs. Assistant Commissioner of Income Tax,Non-Corporate Circle-10(1),Nungambakkam, Chennai-34. .. Respondent PRAYER : Writ Petition filed under Article 226 of theConstitution of India praying for issuance of a Writ ofCertiorari, calling for the records pertaining to the order ofthe respondent dated 28.12.2018 Order No. ITBA/AST/S/143(3)/2018-19/1014624990(1) received on 28.12.2018 for assessment year2016-2017 and quash the same. For Petitioner : Mr.P.J.RishikeshFor Respondent : Mr.J.Narayanaswamy, Senior Standing Counsel (Income Tax). Mr.P.J.Rishikesh, learned counsel onrecord for writ petitioner and Mr.J.Narayanaswamy, learnedSenior Standing Counsel (Income Tax) on behalf of solerespondent are before this Court. 2. Sole respondent has filed a counter-affidavit dated 17.6.2019 and therefore, pleadings are complete. 3. Be that as it may, with consent of learnedcounsel on both sides, main writ petition itself is taken up,heard out and is being disposed of. https://hcservices.ecourts.gov.in/hcservices/ 4. The scope of this entire writ petition is verynarrow and in the light of submissions made in the Court in thehearing, it now turns on a narrower compass. 5. An assessment order made by respondent being'assessment order dated 28.12.2018 bearing Order No.ITBA/AST/S/143(3)/2018-19/1014624990(1) pertaining to PAN No. forthe assessment year 2016-2017' (hereinafter referred to as'impugned assessment order' for brevity) has been called inquestion in the instant writ petition. 6. Challenge to impugned assessment order ispredicated on the sole ground that it has been made in the nameof a dead person. There is no disputation or disagreement thatimpugned order has been made in the name of one KanniappanThiruvengadam and that said Kanniappan Thiruvengadam died on11.10.2015. To be noted, impugned assessment order is dated28.12.2018. 7. This Court is informed without any disputationor disagreement that writ petitioner before this Court i.e.,T.Palani is aforementioned Kanniappan Thiruvengadam's son andlegal heir. 8. Learned counsel for writ petitioner submitsthat returns for assessment year pertaining to impugnedassessment order namely, assessment year 2016-2017 was filed bywrit petitioner on 30.9.2016, post demise of assessee. Afterreturns were filed on 30.9.2016, the Income Tax Department hadsent a notice under Section 143(2) of Income Tax Act, 1962(hereinafter 'IT Act'). What is of utmost significance is, thisnotice sent by the IT Department under Section 143(2) of IT Act,pursuant to the returns filed for assessment year 2016-2017 isaddressed to the writ petitioner describing him as the legalheir of late Kanniappan Thiruvengadam, but ultimately, when theassessment was carried to its logical end and when it culminatedin the impugned assessment order, the same has been issued inthe name of deceased Kanniappan Thiruvengadam. On this basis, itis submitted by learned counsel for writ petitioner that theimpugned assessment order is a nullity. In other words, theentire writ petition is predicated on the pivotal and primordialground that impugned assessment order has been made in the nameof a dead person and is therefore a nullity. 9. In response to the aforesaid challenge to theimpugned assessment order, learned Revenue Counsel adverting tothe aforementioned counter-affidavit submitted that the responseof the respondent is of three fold and they are as follows:(a) Impugned assessment order is software generated and the respondentcannot change certain details which appearabove the caption 'assessment order'. 9. In response to the aforesaid challenge to theimpugned assessment order, learned Revenue Counsel adverting tothe aforementioned counter-affidavit submitted that the responseof the respondent is of three fold and they are as follows:(a) Impugned assessment order is software generated and the respondentcannot change certain details which appearabove the caption 'assessment order'. (b) Impugned assessment orderbeing issued in the name of a dead person orin other words in the name of an assesseepost demise, is only a curable defect andthe same is curable under Section 292-B ofIT Act. (c) Writ petitioner hasalternate remedy, as a statutory appeal tothe Commissioner of Income Tax Appeals(hereinafter 'CIT Appeals' for brevity) willlie under Section 246-A of the IT Act. submissions. 10. This Court has carefully considered the rival 11. The last of the threefold submissions made byRevenue Counsel, namely, alternate remedy pales intoinsignificance in the light of the trajectory the writ petitionhas taken at this stage. When this matter came up for admissionbefore a predecessor Hon'ble Single Judge, proceedings came tobe made on 30.1.2019 and the said proceedings read as follows: 'Mr.Naveen Durai Babu, learned standingcounsel takes notice for the respondent. 2. This writ petition is filedchallenging the order of assessment dated28.12.2018 passed under Section 143(3) ofthe Income Tax Act, 1961. 3. The petitioner before thisCourt is the son of one KanniappanThiruvengadam, who is the assessee beforethe respondent. The main ground, ofchallenge is that the assessment order waspassed in the name of a dead person. It isthe specific case of the petitioner thateven the notice issued under Section 143(2)dated 27.11.2018 was also on the deadperson, when the assessee, viz., thepetitioner'sfatherhadexpiredon11.10.2015, much earlier to the issuance ofthe said notice. It is further contendedthat even though the said factum of death ofthe assessee was brought to the notice ofthe Assessing Officer on very many occasionscommencing from the reply dated 19.12.2018and last of such reply dated 26.12.2018, theAssessing Officer has chosen to pass theimpugned order on 28.12.2018 erroneously once again in the name of dead person only.Therefore, it is contended that the impugnedassessment order cannot be sustained in theeye of law. 4. The learned counsel for thepetitioner further contended that eventhough a statutory appeal was filed on07.01.2019 against the assessment order,since the very order of assessment cannot besustained on the sole reason that the samewas passed against the dead person, pursuingsuch appeal on merits of the assessmentbefore the Appellate will be futile andtherefore, the petitioner is willing towithdraw the said appeal. 5. Perusal of the notice dated27.11.2018 and the reply submitted by thepetitioner, more particularly, the one dated26.12.2018, which was duly acknowledged bythe Department on 26.12.2018 itself, wouldshow that the Assessing Officer hasproceeded with the assessment proceedingsagainst the dead person and consequently,passed the assessment order also on28.12.2018 in the name of such dead person.Hence, this Court prima facie finds thatsuch order passed on the dead person cannotbe sustained. Therefore, this Court isinclined to examine the said issue further.Since the petitioner has undertaken towithdraw the appeal already filed before theAppellate Authority, the said submission isrecorded and the respondent is directed tofile counter within a period of three weeks.6. Considering the above stated factsand circumstances, there will be an order ofinterim stay of the impugned proceedings,pending further orders.' (Underlining made by this Court tosupply emphasis and highlight) 12. To be noted, vide the aforesaid proceedings ofthis Court, interim order has also been granted. (Underlining made by this Court tosupply emphasis and highlight) 12. To be noted, vide the aforesaid proceedings ofthis Court, interim order has also been granted. 13. Owing to the aforesaid proceedings,particularly, the underlined portion, writ petitioner counselsubmits that the writ petitioner withdrew the statutory appealby filing a memo dated 25.2.2019 and the CIT Appeals acceptedthe same on 28.2.2019. It was pointed out that the counter-affidavit of the respondent has been filed only on 17.6.2019. https://hcservices.ecourts.gov.in/hcservices/ Therefore, withdrawal of the statutory appeal by the writpetitioner is pursuant to the orders and proceedings of thisCourt made by predecessor Hon'ble Judge and therefore, thealternate remedy plea pales into insignificance. 14. With regard to the first of the threefoldsubmissions pertaining to software, suffice to say that it isfor the Income Tax Department to update data software to makeallowance for such situations. In the considered view of thisCourt, such situations may not be infrequent and isolated. Inother words, situations wherein returns are filed post demise ofthe assessee by legal heir are common situations and therefore,it is for the Income Tax Department to ensure that adequateupdation is made in the software in this regard. That puts anend to the first of the threefold submissions pertaining tosoftware. 15. This leaves us with the second of thethreefold submissions i.e., that which turns on Section 292-B ofIT Act on the basis of which learned Revenue Counsel submitsthat it is a curable defect. 16. Learned counsel for writ petitioner pressedinto service some orders to say that this Court has held thatproceedings against a dead person are nullity, but learnedRevenue Counsel says that these orders are distinguishable onfacts as they pertain to notices whereas the instant writpetition is one assailing an assessment order made under Section143(3) of IT Act. In the considered view of this Court, it maynot be necessary to delve into those aspects of the matterfurther and it would serve the purpose to direct the respondentto redo the assessment in the name of the writ petitioner onmerits of the returns and in accordance with law. 17. In the considered opinion of this Court, thiswill safeguard the interest of the writ petitioner (assessee'slegal heir) as well as protect the interest of the Revenue. 18. It was contended by learned Revenue Counselthat all that needs to be done is, the impugned assessment is tobe made in the name of the writ petitioner or in other wordsaccording to learned Revenue Counsel in impugned assessmentorder name of late assessee Kanniappan Thiruvengadam has to bereplaced with the name of the writ petitioner, namely, T.Palani.This Court is of the considered view that this is untenable asit would lead to a proposition that a decree can be obtainedagainst a dead person and the name of the judgment-debtor alonecan be changed to that of the legal heir. No elucidation orelaboration is required to highlight that such a proposition isclearly not tenable. 19. Therefore, in the light of the narrative thusfar, this Court deems it appropriate to set aside the impugnedassessment order being assessment order dated 28.12.2018 bearingOrder No.ITBA/AST/S/143(3)/2018-19/1014624990(1) pertaining toPAN No.ABNPT3323R for the assessment year 2016-2017 and therespondent is directed to redo the assessment after putting thewrit petitioner on notice. Respondent so redoing the assessmentshall be on merits of the returns filed on 30.9.2016 andobviously in accordance with law. To be noted, the impugnedassessment order is set aside without expressing any opinion onmerits of the matter or in other words, the impugned assessmentorder is set aside on the sole ground that it has been made inthe name of a dead person, for the limited purpose offacilitating the respondent to redo the matter. 20. Writ petition is disposed of with the abovedirections. However, there shall be no order as to costs.Consequently, connected miscellaneous petitions are closed. Sd/- Assistant Registrar(CCC) //True Copy// Svn Sub Assistant Registrar ToAssistant Commissioner of Income Tax,Non-Corporate Circle-10(1),Nungambakkam, Chennai-34. +1cc to Mr.P.J.Rishikesh, Advocate sr.65271 ks(co)nr 18/09/2019