Wp(C)/1932/2020 Of Vineeth Varghese v. The Deputy Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941 WP(C).No.1932 OF 2020(N) PETITIONER: VINEETH VARGHESE, AGED 31,S/O. LATE P.A. VARGHESE, APARTMENT NO. 8A, DOOR NO. 61/181 A20, ASSET BELLEVUE APARTMENTS, PALLIMUKKU, ERNAKULAM, PIN-682 016. BY ADVS.SRI.EBIN MATHEWSRI.P.ROHIT PREMANANDAN SHENOY RESPONDENTS: THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON29.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ALEXANDER THOMAS, J. ------------------------------------- W.P.(C) No. 1932 of 2020 ------------------------------------- Dated this the 29[th] day of January, 2020 J U D G M E N T “ The prayers in the above Writ Petition (Civil) are as follows: (a)A Writ of certiorari quashing Ext.P7 notice and Exhibtis P12,P13, P15 and P16 orders/notice dated 28/12/2019 issued by the 3[rd] respondent.P12,P13, P15 and P16 orders/notice dated 28/12/2019 issued by the 3[rd] respondent. (b)Writ of certiorari quashing Ext.P5 and Ext.P7 notices issued in the name of a dead person and all consequential proceedings, Ext.P7, P12, P13 & P15 and 16 are illegal and null and void.in the name of a dead person and all consequential proceedings, Ext.P7, P12, P13 & P15 and 16 are illegal and null and void. (c)A writ of mandamus or any other appropriate writ, order ordirection, directing respondents not to resort to any further proceedings against the petitioner on the basis of Exhibits P12, P13, P15 and P16 order/notice.direction, directing respondents not to resort to any further proceedings against the petitioner on the basis of Exhibits P12, P13, P15 and P16 order/notice. (d)Such other reliefs as are deemed fit and proper in the facts and the circumstances of the case.”and the circumstances of the case.” 2.Heard Sri.Ebin Mathew, learned counsel appearing for the petitioner and Sri.Jose Joseph, learned Standing Counsel for theIncome Tax Department, Government of India, appearing for therespondents. 3. The main contention raised by the petitioner is that the assessee (who is the father of the petitioner) was dead even longprior to the issuance of the first notice as per Ext.P-5, etc.The respondents were directed to furnish instructions regarding thespecific plea made by the petitioner that the assessee was already W.P.(C) No. 1932 of 2020 dead even as on the date of the first notice as per Ext.P-5, as well as,prior to the issuance of Exts.P-12 to P-16 assessment orders,etc. 4.After hearing both sides it is seen that the assesseeconcerned has died on 16.3.2018 as evident from Ext.P-4 statutorydeath certificate dated 3.4.2018 issued by the statutory Registrarof Births and Deaths, attached to the Thrissur MunicipalCorporation, under the provisions of the Registration of Births andDeaths Act. In this regard, it is relevant to note that even the firstimpugned notice as per Ext.P-5 has been issued on 7.9.2018 andExt.P-12 Best of Judgment Assessment, and Ext.P-13 notice ofdemand, Ext.P-15 penalty notice, Ext.P-16 notice has been issuedon 28.12.2019. Therefore, even as on the date of the notice as wellas the impugned assessment order and the consequential orders,the assessee was dead long prior thereto, and hence the impugnedproceedings with a dead party on the array is a nullity, andnon-est. Position in that regard is too trite and elementary anddoes not require citation of any judicial authority in that regard.Hence it is ordered and declared that the abovesaid impugnedproceedings are in nullity, non-est in law. W.P.(C) No. 1932 of 2020 W.P.(C) No. 1932 of 2020 5.In that view of the matter it is ordered that, theimpugned Ext.P-5 notice and the consequential Ext.P-12assessment order, Ext.P-13 demand notice, P-15 penalty notice andExt.P-16 notice shall stand quashed and rescinded. However, it ismade clear that if the competent authority among the respondentsare of the considered view that the legal representatives/heirs ofthe deceased are stated to be proceeded against in the mannerknown to law, then it is for the said competent authority toascertain from the competent revenue officials in the State as towho all are the legal representatives/heirs of the deceased assessee,and who among them have inherited any of the estate of thedeceased assessee, etc, and then proceed against them, if it ispermissible in law. With the said liberty, the above Writ Petition (Civil) willstand disposed of. Sd/- ALEXANDER THOMAS, JUDGE ..5.. APPENDIX W.P.(C) No. 1932 of 2020 EXHIBIT P9TRUE PHOTOCOPY OF NOTICE UNDER SECTION142(1) OF THE INCOME TAX ACT 1961,DATED 14.11.2019 ISSUED BY THE 3RDRESPONDENT.142(1) OF THE INCOME TAX ACT 1961,DATED 14.11.2019 ISSUED BY THE 3RDRESPONDENT. EXHIBIT P10TRUE PHOTOCOPY OF LEGAL HEIRSHIPCERTIFICATE DATED 20.10.2018 OF LATEP.A. VARGHESE.CERTIFICATE DATED 20.10.2018 OF LATEP.A. VARGHESE. EXHIBIT P11TRUE PHOTOCOPY OF TRACK CONSIGNMENT INRESPECT OF REGISTERED POSTAL ARTICLENO. EL 430875057IN.RESPECT OF REGISTERED POSTAL ARTICLENO. EL 430875057IN. EXHIBIT P12TRUE PHOTOCOPY OF THE BEST OF JUDGMENTASSESSMENT ORDER PASSED UNDER SECTION143(3) OF THE INCOME TAX ACT, DATED28.12.2019 PASSED BY THE 3RDRESPONDENT.ASSESSMENT ORDER PASSED UNDER SECTION143(3) OF THE INCOME TAX ACT, DATED28.12.2019 PASSED BY THE 3RDRESPONDENT. EXHIBIT P13TRUE PHOTOCOPY OF NOTICE OF DEMANDDATED 28.12.2019.DATED 28.12.2019. EXHIBIT P14TRUE PHOTOCOPY OF CORRIGENDUM NOTICEDATED 28.12.2019 ISSUED BY THE 3RDRESPONDENT.DATED 28.12.2019 ISSUED BY THE 3RDRESPONDENT. EXHIBIT P15TRUE PHOTOCOPY OF PENALITY NOTICEUNDER SECTION 270A OF THE INCOME TAXACT ISSUED BY THE 3RD RESPONDENT.UNDER SECTION 270A OF THE INCOME TAXACT ISSUED BY THE 3RD RESPONDENT. EXHIBIT P16TRUE PHOTOCOPY OF NOTICE DATED28.12.2019.28.12.2019.