Wp/23440/2018 Of M.kasthuri v. The Income Tax Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.12.2018 CORAM THE HON'BLE MR. JUSTICE K.RAVICHANDRABAABUWrit Petition No.23440 of 2018and W.M.P.No.27353 of 2018M.Kasthuri ...Petitionervs. The Income Tax Officer,Non-Corporate Ward-12(4)Room No.223, No.16,BSNL Building,Greams Road,Chennai – 600 006. ....Respondent Prayer :Writ Petition filed under section 226 of theconstitution to issue a Writ of Certiorari calling for therecords of the respondent in impugned order dated 29.12.2017together with the consequential notice of demand dated29.12.2017 and the consequential proceedings for penalty dated18.05.2018 and quash the same.For Petitioner : Mr.S.Raveekumar For Respondent : Mr.Raj Jhabak, Standing Counsel(IT) O R D E R The petitioner has approached this Court and challenged theimpugned proceedings namely, the order of assessment dated29.12.2017 passed in respect of assessment year 2010-11 and thedemand notice issued under section 156 of the Income Tax Act,1961, calling upon the petitioner and 14 others to pay a sum ofRs.32,11,010/- being the tax arrears. 2. The case of the petitioner before this Court is that she https://hcservices.ecourts.gov.in/hcservices/ is not an assessee under the respondent and the impugnedproceedings issued by treating the petitioner as one of thelegal heirs of the deceased assessee, namely one SadagopanSulochana was also on a mistaken impression as though thepetitioner is one of the legal heirs of the said deceasedassessee. Therefore, she contended that the impugned proceedingsissued, insofar as against the petitioner, cannot be sustained.The petitioner has specifically stated in the affidavit filed insupport of the writ petition that the deceased assessee, namelySulochala, is the sister-in-law of the petitioner's mother-in-law. She further stated that the petitioner is neither a partyto the Testamentary Original Suit nor the beneficiary under theWill claimed to have been executed by the said Sulochana. Shefurther stated that she does not come within the purview ofrelative as defined under section 2(41) of the Income Tax Act. 3. A counter affidavit is filed by the respondent wherein itis stated that the petitioner is residing in the same propertywhere the deceased assessee Sadagopan Sulochana was residing atthe time of her death. Therefore, it is contended by therespondent that the petitioner has clear nexus with theproperties of the deceased and therefore, the initiation of theproceedings and also passing the order of assessment are inaccordance with law. 4. Heard both sides. 5. Admittedly, the petitioner herein is not the assessee andon the other hand, one Sulochana was the assessee, who also wasno more at the time of passing the impugned proceedings. It isstated by the petitioner that the said deceased assessee is thesister-in-law of the petitioner's mother-in-law. Section 2(41)of the Income Tax Act, 1961 defines the term relative as follows:“relative”, in relation to an individual,means the husband, wife, brother or sister or anylineal ascendant or descendant of thatindividual; 6. Certainly, the definition of the term relative, asdefined under section 2(41), does not include the relationshipbetween the petitioner and the deceased assessee. Therefore, Ifind that the order of assessment and the consequential demandissued on the petitioner by treating the petitioner as therelative of the deceased cannot be sustained in the eye of law.Merely because the petitioner is residing in the same propertywhere the deceased assessee was living before her death, cannotbe a reason to conclude as if the petitioner is also one of thelegal heirs of the deceased. If such presumption is permitted,it would go against the definition of “relative” as definedunder section 2(41). Therefore, I find that the impugned order https://hcservices.ecourts.gov.in/hcservices/ 6. Certainly, the definition of the term relative, asdefined under section 2(41), does not include the relationshipbetween the petitioner and the deceased assessee. Therefore, Ifind that the order of assessment and the consequential demandissued on the petitioner by treating the petitioner as therelative of the deceased cannot be sustained in the eye of law.Merely because the petitioner is residing in the same propertywhere the deceased assessee was living before her death, cannotbe a reason to conclude as if the petitioner is also one of thelegal heirs of the deceased. If such presumption is permitted,it would go against the definition of “relative” as definedunder section 2(41). Therefore, I find that the impugned order https://hcservices.ecourts.gov.in/hcservices/ cannot be sustained, insofar as the petitioner is concerned.Accordingly, the Writ Petition is allowed and both theproceedings are quashed only insofar as the petitioner isconcerned. No costs. Consequently, connected miscellaneouspetition is closed. Sd/-Assistant Registrar(CO) //True copy//Sub Assistant RegistrarvsiToThe Income Tax Officer,Non-Corporate Ward-12(4)Room No.223, No.16,BSNL Building,Greams Road,Chennai – 600 006.+1cc to Mr.Rajkumar Jhabhak, Advocate SR.No.84123+1cc to Mr.S.Raveekumar, Advocate SR.No.83281W.P.No.23440 of 2018SSV(CO)GMY(28/12/2018) https://hcservices.ecourts.gov.in/hcservices/