The Bombay High Court allowed the present petition and set aside the notices issued on the ground that the re-assessment proceedings have been initiated against a dead person.
A division bench of this Court comprising Hon’ble Justice Dhiraj Singh Thakur and Kamal Khata held that notice issued under Section 148 of the Income Tax Act, 1961 (“the Act”) against a dead person would be invalid unless the legal representatives submit to the jurisdiction of the Assessing Officer without raising any objection.
Brief Facts:
The Petitioner challenged the notice issued under Section 148 of the Act dated 30 June 2021 and 20 June 2022 and the Order under Section 148A(d) dated 30 June 2022 on the ground that the re-assessment proceedings have been initiated against a dead person. It was stated that the Respondents had issued a notice under Section 148 dated 30 June 2021 in the name of the father of the Petitioner, namely, Prakash Tatoba Toraskar, who had already expired on 4 November 2019. As evidence, a death certificate issued by the Municipal Corporation of Greater Mumbai was also placed on record.
The Respondents treated the earlier notice issued under Section 148 of the Act to be a notice under Section 148A(b) and sought a reply thereto, so that necessary Order in terms of Section 148A(d) could be passed. However, the legal heir of the deceased did not consent to participate in the assessment proceedings. Notwithstanding the above-mentioned objection having been taken by the legal heir of the deceased, an Order under Section 148A(d) came to be passed on 30 June 2022.
Observations of the Court:
It was clear to the Court that the initial notice under Section 148 was in the name of the deceased, and so was the subsequent communication dated 20 May 2022 purporting to be a notice in terms of Section 148A(b). Further, the reference was made to the case of Income Tax Ward 1(3)(7), Surat Vs. Durlabhbhai Kanubhai Rajpara [2020} 114 taxman.com 482 (SC), to held that notice issued under Section 148 of the Act against a dead person would be invalid, unless the legal representatives submit to the jurisdiction of the Assessing Officer without raising any objection. Therefore, the present petition was allowed, and notices issued under Section 148 of the Act dated 30 June 2021 and 20 June 2022 and the Order under Section 148A(d) dated 30 June 2022 were set aside.
The decision of the Court:
The Bombay High Court set aside the notices issued under Section 148 of the Income Tax Act, 1961 (“the Act”) dated 30 June 2021 and 20 June 2022 and the Order under Section 148A(d) dated 30 June 2022.
Case Title: Prakash Tatoba Toraska vs The Income-tax Officer and others
Coram: Hon’ble Justice Dhiraj Singh Thakur and Kamal Khata
Case no.: WRIT PETITION NO.4871 OF 2022
Advocate for the Petitioner: Mr. Yahya Ghoghari a/w Mr. Mustafa Shabbir Shamim i/b Shamaim & Co.
Advocate for the Respondents: Mr. Suresh Kumar
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