Wp/26574/2023 Of Smt. Tejal Milan Parikh v. The Deputy Commissioner Of Income Tax

Digitally signed byVANDANA SLocation: HighCourt of Karnataka IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16 DAY OF JANUARY, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR -WRIT PETITION NO.26574 OF 2023 (TIT) BETWEEN: SMT. TEJAL MILAN PARIKH AGED ABOUT 43 YEARS, LEGAL HEIR OF LATE MILAN M PARIKH R/AT NO.1081/31, 1 FLOOR, GOLDEN BLOSSOM 18 A MAIN, 5 BLOCK, RAJAJINAGAR, BANGALORE-560 010. …PETITIONER (BY SRI. R. CHANDRASHEKAR AND SRI. KASHINATH KALMATH, ADVOCATES) AND: THE DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE SHARADHA BUILDING, SARAF COLONY, KHANAPUR ROAD, TILAKWADI BELAGAVI-590 006. …RESPONDENT (BY SRI.M. DILIP, ADVOCATE) THIS W.P IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF EX-PARTE ASSESSMENT MADE FOR THE ASSESSMENT YEAR 2015-16 ON 22.06.2021 U/S. 153C R.W.S. 144 OF THE ACT VIDE DIN ITBA/AST/S/153C/2021-22/1033247083(1) (ANNEXURE-D). THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: - 2 - ORDER In this petition, petitioner seeks quashing of the impugned assessment order at Annexure – D dated 02.06.2021 in relation to the assessment year 2015-16 passed by the respondent. 2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record. 3. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on record, learned counsel for the petitioner submits that during the course of assessment proceedings and prior to passing of the impugned ex-parteassessment order dated 02.06.2021, petitioner’s husband late Milan M Parikh expired on 08.05.2021 and consequently, the impugned ex-parte assessment order passed against a dead / deceased person was null, void, ab initioand the same deserves to be set aside particularly in the light of the similar order passed by this Court in relation to the very same petitioner and her deceased husband in W.P.No.26161/2023 and connected matters dated 21.12.2023. It is therefore submitted that the impugned order passed by the respondent deserves to be set aside and the matter remitted back to the respondent for reconsideration afresh in accordance with law. 4. Per contra, learned counsel for the respondent would support the impugned order and submits that there is no merit in the petition and that the same is liable to be dismissed. 5. As rightly contended by learned counsel for the petitioner, in W.P.No.26161/2023 and connected matters pertains to the very same petitioner and her husband late Milan M Parikh, and this Court in the said petitions has held as under: “These petitions are filed by Sri Milan M. Parikh’s wife as his Class – I legal heir. The petitioner has impugned the different assessment orders under Section 153C read with Section 144 of the Income Tax Act, 1961 [for short, ‘the IT Act’]. The details of the impugned Assessment Orders in these writ petitions are as follows: 2. It is undisputed that, on 28.04.2018, a search was conducted on Sri Nasiruddin P. Baghwan and notice under Section 153C of the IT Act is issued on Sri Milan N. Parikh on 09.02.2021. This notice is followed by the notice under Section 142(1) of the IT Act and the impugned ex-parte Assessment Orders under Section 144 of the IT Act on 15.03.2021, 04.06.2021/ 07.06.2021/ 22.06.2021 respectively. However, Sri Milan M. Parikh has died before completion of the assessment proceedings on 08.05.2021. The petitioner’s grievance essentially is because the assessment proceedings are completed without bringing the petitioner on record as the legal heirs of the deceased Milan M. Parikh and as such, the impugned Assessment Orders are in violation of the principles of natural justice. 2. It is undisputed that, on 28.04.2018, a search was conducted on Sri Nasiruddin P. Baghwan and notice under Section 153C of the IT Act is issued on Sri Milan N. Parikh on 09.02.2021. This notice is followed by the notice under Section 142(1) of the IT Act and the impugned ex-parte Assessment Orders under Section 144 of the IT Act on 15.03.2021, 04.06.2021/ 07.06.2021/ 22.06.2021 respectively. However, Sri Milan M. Parikh has died before completion of the assessment proceedings on 08.05.2021. The petitioner’s grievance essentially is because the assessment proceedings are completed without bringing the petitioner on record as the legal heirs of the deceased Milan M. Parikh and as such, the impugned Assessment Orders are in violation of the principles of natural justice. 3. Sri R. Chandrashekar, the learned counsel for the petitioner, and Sri M. Dilip, the learned counsel for the respondent, are heard for final disposal of the petition in the light of the aforesaid circumstances. Sri Chandrashekar, while reiterating the petitioner’s grievance in the light of the circumstances as aforesaid, also submits that the petitioner is entitled to dispute the very assumption of jurisdiction to issue notice under Section 153C of the IT Act because the petitioner is categorical that initiation of proceedings is not because of a search on Sri Milan M. Parikh. 4. In response, Sri M Dilip submits that his instructions are that there was no search on Sri.Milan M. Parikh, but Sri Milan M. Parikh’s premise was also searched as part of search on Sri.Nasiruddin P. Baghwan, and therefore, issuance of notice under Section 153C of the IT Act to assume jurisdiction for the assessment is justified. Sri. M. Dilip also submits that this aspect could be left open to be considered with due opportunity to the petitioner as the respondent cannot controvert that the assessment proceedings are completed without the petitioner being brought on record upon the demise of Sri Milan M. Parikh on 08.05.2021. In the light of these submissions, the following: ORDER a) The petitions are allowed in part and the impugned Assessment Orders are quashed. Assessment Orders are quashed. b) The proceedings are restored to the stage of the notice under Section 142(1) of the IT Act with liberty to the petitioner to file appropriate reply with necessary documents. notice under Section 142(1) of the IT Act with liberty to the petitioner to file appropriate reply with necessary documents. c) The petitioner shall be at liberty to file their reply with necessary documents with the respondent on or before 29.02.2024.” with necessary documents with the respondent on or before 29.02.2024.” 6. It is an undisputed fact that the impugned order relates to the assessment year 2015-16 while the aforesaid order passed by this Court was in relation to different assessment years. Under NC: 2024:KHC:2257 these circumstances, in the light of the aforesaid order passed by this Court in W.P.No.26161/023 and connected matters dated 21.12.2023, and on the ground of parity, I am of the considered opinion that the present petition also deserves to be allowed and similar order deserves to be passed in the present petition also. 7. In the result, I pass the following: ORDER (i) The petition is allowed-in-part and the impugned Assessment Order is quashed. (ii) The proceedings are restored to the stage of the notice under Section 142(1) of the IT Act with liberty to the petitioner to file appropriate reply with necessary documents. (iii) The petitioner shall be at liberty to file her reply with necessary documents with the respondent on or before 29.02.2024. (iv) Upon receipt of reply, documents, etc., from the petitioner, the respondent is directed to proceed further and pass appropriate orders, in NC: 2024:KHC:2257 WP No. 26574 of 2023 accordance with law, after providing an opportunity of personal hearing to the petitioner. SD/- JUDGE SV List No.: 2 Sl No.: 37