Bombay High Court
Bandu Shambharkar Lrs Of Mahadev ... vs Pr. Commissioner Of Income Tax-1, ... on 9 September, 2021
Bench: S.B. Shukre, Anil S. Kilor
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 3285 OF 2021
PETITIONER :- Bandu Shambharkar Legal Heir of
Mahadev Shambharkar, aged about 56
years, R/o Plot No. 171, Kamptee Road,
Nagpur-441002.
...VERSUS...
RESPONDENTS :- 1. Pr. Commissioner of Income Tax-1,
Nagpur, Aaykar Bhawan, Civil Lines,
Nagpur 440 001.
2. Income Tax Officer, Ward 1(1), MECL
Building, Seminary hills, Civil Lines,
Nagpur.
3. Income Tax Officer, Ward 3(4), MECL
Building, Seminary hills, Civil Lines,
Nagpur.
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Mr. Ram D. Heda, counsel for the petitioner.
Mr. Anand Parchure, counsel for respondents.
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CORAM : SUNIL B.SHUKRE &
ANIL S.KILOR, JJ.
DATE : 09.09.2021.
ORAL J U D G M E N T (Per :Sunil B.Shukre, J.)
Heard.
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2. Rule. Rule made returnable forthwith. Heard finally
by consent of the learned counsel appearing for the parties.
3. There can be no dispute about the principle of Law
that when there is a re-assessment or assessment is opened under
Section 148 of the Income Tax Act, 1961 (herein after referred to
as 'the Act of 1961') as required under Section 159 of the Act of
1961, the proceedings can be continued against the legal
representatives only when the notice has been issued in the name
of the person, who is dead and that if the notice is issued to the
assessee after his death, the proceedings could not be continued
against the legal representatives. This is the view taken by a Co-
ordinate Division Bench of this Court at Principal Seat at Mumbai
in the case of Rupa Shyamsundar Dhumatkar Vs. Assistant
Commissioner of Income Tax reported in Writ Petition No. 404 of
2019 decided on 5th April 2019, by relying upon several judgments
of different High Courts, in particular the judgments rendered by
Gujarat High Court in the case of Chandreshbhai Jayantibhai Patel
V. ITO[2019]101 taxmann.com 362/261 Taxman 137/413 ITR
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276 and Madras High Court in the case of Alamelu Veerappan V.
ITO[2018]95 taxmann.com 155/257 Taxman 72.
4. In the present case also, the notice, under Section
133(6) of the Act,1961 had been issued to the father of the
petitioner Mahadeo Janbaji Shambharkar on 18.01.2019. On that
day, the father of the petitioner, the assessee was alive. Father of
the petitioner died on 27.01.2019. Therefore, notice under Section
133(6) of the Act, 1961 issued on 18.01.2019 was valid. So, as
held in the aforesaid cases, the proceedings based upon a valid
notice could be continued and taken forward against the legal
representatives in view of the provisions made under Section 159
of the Income Tax Act. Of course, for that matter fresh notice will
have to be issued to the legal representatives. As of now, what
has emerged on record is that it is only the petitioner, who is the
legal representative and if there are any more legal
representatives, the petitioner would be at liberty to inform their
names and addresses to the Income-Tax Department for their
being brought on record as legal representatives, as per law.
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5. In view of above, the present notices can not survive
and they deserve to be quashed and set aside with appropriate
liberty given to the Income Tax Department.
6. The Writ Petition is allowed. The impugned notices
are hereby quashed and set aside. Liberty is granted to the
respondent No.3 to issue fresh notice to the legal representatives
including the petitioner, as per law for re-assessment.
7. The petitioner is at liberty to disclose names of other
legal representatives, apart from him to the Income Tax
Authorities, if any.
8. Rule accordingly. No costs.
(ANIL S. KILOR,J) (SUNIL B. SHUKRE,J)
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