Bombay High Court
Geeta Amol Tapadia Legal Heir Of Amol ... vs The Principal Commissioner Income Tax ... on 8 August, 2024
Author: Ravindra V.. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:17717-DB
(1) 930 wp 8291.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8291 OF 2024
Geeta w/o Amol Tapadia
Legal heir of Amol Ramkishan Tapadia
(Deceased Assessee PAN No.ACXPT0795N)
Age: 41 years, Occu: Business,
R/o. Near Siddhi Vinayak Mandir,
Hatte Nagar, Latur,
Tq. & Dist. Latur. ... PETITIONER
V/s.
1. The Principal Commissioner,
Income Tax-4, Pune,
Having its office at Aykar Bhavan,
Sadhu Waswani Chowk,
Near Pune Station, Pune.
2. The Income Tax Officer,
Central Ward-13 (1), Pune,
Having its office at Aykar Bhavan,
Sadhu Waswani Chowk,
Near Pune Station, Pune.
3. The Assessing Officer,
National Faceless Assessment Centre,
Jawaharlal Nehru Stadium, Ramp No.3,
New Delhi. ... RESPONDENTS
...
Mr. Raviraj R. Chandak, Advocate for the Petitioner
Mr. Alok Sharma, Advocate for the Respondents
...
CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
DATE : 8th August, 2024
(2) 930 wp 8291.24
ORAL JUDGMENT (Per: Ravindra V.. Ghuge, J.):-
1. Rule. Rule made returnable forthwith and heard finally with the
consent of the parties.
2. The Petitioner has put-forth prayer clause-C and D as under:
"C] By issuing appropriate writ or direction like in nature the
impugned notice dated 31.01.2024 U/Section 148-A (b) of Income Tax
Act and order dated 16.03.2024 passed U/Section 148A (d) and
consequential notice dated 16.03.2024 U/sec. 148 of Income Tax Act,
by the respondent no.2 for the assessment year 2020-21 may kindly
quash and set aside.
D] Pending the hearing and final disposal of this writ petition, the
effect, execution, implementation and further proceeding in pursuance to
the impugned order dated 16.03.2024 passed U/Section 148A(d) and
consequential notice dated 16.03.2024 U/sec. 148 of the Income Tax
Act, for assessment year 2020-21 by the respondent no. 2 may kindly be
stayed."
3. By this present Petition, the Petitioner widow seeks to challenge
the show cause notice dated 31.01.2024, issued under Section 148-A (b) of the
Income Tax Act regarding re-opening of assessment for the assessment year
2020-2021 and the consequential order dated 16.03.2024 passed under Section
148-A (d) and so also, the notice dated 16.03.2024 issued under Section 148 of
the Income Tax Act. All these notices are issued by Respondent No.2. The
grievance of the widow is that the entire proceeding is vitiated since the first
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notice for re-opening of the assessment is issued in the name of a dead person
and the same obviously could not have been served on such a dead person. The
Petitioner's husband died on 01.05.2021, due to the Covid-19 pandemic. The
Petitioner is the widow. Two minor children are residing with her. The
deceased assessee was assessed by Respondent No.2, who is under Respondent
No.1-Authority, for the purpose of Section 151 of the Income Tax Act.
Respondent No.3 is the Assessing Officer who is supposed to pass the
assessment order.
4. Respondent No.2 has issued the notice dated 11.01.2024, after the
demise of the Petitioner's husband on 01.05.2021.
5. Considering the order that we intend to pass, we are not required
to look into the other aspects of the case. Suffice it to say, we need to consider
the effect of a notice issued to a dead person.
6. The learned advocate representing the Department submits that
there is no specific provisions under the Act which would enable the Authority
which has issued such notice, to withdraw the notice. The learned advocate for
the Petitioner submits that the Central Board for Direct Taxes (CBDT) can issue
certain instructions under Section 119 of the Income Tax Act by way of
instructions for ensuring the effective administration of the Department.
(4) 930 wp 8291.24
7. The learned advocate for the Petitioner refers to a judgment
delivered by the Delhi High Court in Savita Kapila, LR V/s. Assistant
Commissioner of Income Tax; (2020) 108 CHH 0049 Del. HC, wherein it has
been concluded that as there is an absence of a statutory provision casting a
duty upon a legal representative to intimate the factum of death of an asessee
to the Income Tax Department, the legal representative is not under any
statutory obligation to convey the death of the assessee. In Alamelu Veerappan
V/s. Income Tax Officer; (2018) 102 CCH 0118 Madras HC, it was held that
there is no provision which casts a statutory obligation on the part of the legal
representatives of the deceased to immediately intimate the death of the
assessee or take steps to cancel the PAN registration.
8. It cannot be debated upon that it is the duty of the Department to
ensure that it's notice is issued and executed on a person to whom it is
intended to be served. If the Department gets knowledge after issuance of such
a notice that the concerned assessee has passed away, there must be a
mechanism to recall such a notice since, it would be a wasteful exercise to
spend time for attempting to serve such a notice on a dead person, in as much
as, it would not advance the case of either of the parties since a dead person
would not be answerable to or respond to the notice and the legal heirs, unless
served with a notice, would have no authority to reply to the said notice.
(5) 930 wp 8291.24
9. Since we are informed that the CBDT has the scope of issuing
instructions under Section 119 of the Income Tax Act for ensuring effective and
proper administration, we would advice the CBDT, if there is no other legal
impediment, to issue appropriate instructions to the concerned Departments to
recall or withdraw such a notice, once it is brought to the knowledge of the
Authority that the addressee has passed away. There must be a provision to
withdraw such notice, lest every legal representative will be compelled to file a
Petition in this Court and pray for an order for quashing the said notice. We
trust that the CBDT would consider this observation for issuing an instruction
under Section 119 for the purpose of recalling a notice which is issued to a
dead person.
10. In view of the above, this Writ Petition is allowed in terms of
prayer clause-C. The impugned notice dated 16.03.2024, stands quashed and
set aside for having been issued to a dead person. Needless to state, the
Department is at liberty to issue an appropriate notice in place of the earlier
notice, to the appropriate legal representative and proceed with the matter. In
the peculiar facts of this case, since a fresh notice would actually be a
replacement of the earlier notice, which was inadvertently issued to a dead
person, as the Department did not have any knowledge and the widow did not
(6) 930 wp 8291.24
intimate the Department of the said event, contentions of the parties with
regard to such notice are kept open.
11. Since we have requested the CBDT to issue instructions as
observed above, we request Respondent No.1 to place this order before the
CBDT for compliance.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
