Calcutta High Court
Kripa Shankar Mahawar vs The Principal Chief Commissioner Of on 18 November, 2025
OD-4
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
WPO/408/2025
KRIPA SHANKAR MAHAWAR
VS
THE PRINCIPAL CHIEF COMMISSIONER OF
INCOME TAX-1, ROOM NO. 6, KOLKATA AND ORS
BEFORE:
The Hon'ble JUSTICE OM NARAYAN RAI
Date: 18th November, 2025.
APPEARANCE:
Mr. Anirban Banerjee, Adv.
Mr. Deep Agarwal, Adv.
Mr. B.C. Halder, Adv.
...for the petitioner
Mr. Soumen Bhattacharjee, Adv.
Mr. Ankan Das, Adv.
Ms. Shradhya Ghosh, Adv.
...for the respondents
1. This writ petition assails an assessment order dated March
28, 2025 passed in respect of assessment year 2019-2020, inter-alia on
the ground that the assessment proceeding had been initiated by
issuing notice against a dead person.
2. The case run in the writ petition is that a notice under
section 148A (b) of the Income Tax Act, 1961 (hereinafter referred to as
'the 1961 Act') dated March 29, 2023 was issued in the name of one
Laxmi Kant Mahawar. The said Laxmi Kant Mahawar breathed his last
on January 12, 2025. The notice under section 148A (b) of the Income
Tax Act, 1961 was thus issued in the name of a dead person. The
petitioner filed a reply thereto, thereby bringing to the notice of the
authorities that the original noticee Laxmi Kant Mahawar had died on
January 12, 2020. By the said reply, it was contended that the
proceeding had become null and void and should be discontinued.
3. The respondent/Income Tax Authorities, however, concluded
the proceeding by issuing subsequent notices in the name of the writ
petitioner. Ultimately, the impugned assessment order was passed on
March 28, 2025. The same contains the name of Laxmi Kant Mahawar
as the assesse and in the address column the name of the petitioner
has been recorded by describing him as "Legal Heir Kripa Shankar
Mahawar".
4. It is submitted by Mr. Banerjee appearing on behalf of the
petitioner that the entire assessment proceeding deserves to be set at
naught in view of the fatal and incurable defect of the same having been
initiated in the name of a dead person. It is further submitted that the
other legal representatives of the deceased assesse have not been served
with any notice and such defect has also vitiated the assessment
proceedings. In support of his submission, he relies on a judgment of
the High Court of Gujrat rendered in the case of Bhupendra Bhikhalal
Desai Vs Income Tax Officer reported at 2021 SCC Online Guj 3074.
5. Mr. Bhattacharjee appearing for the respondents supports
the assessment order. He however submits that in any case the defects
as pointed out by the petitioner, if any, would not nullify the
proceeding. In support of his contention he relies on the judgment of
the Hon'ble Supreme Court in the case of Commissioner of Income
Tax vs Jai Prakash Singh reported at (1996)85 Taxman 407.
6. Heard the learned Advocates appearing for the respective
parties and considered the material on record.
7. Once it was brought to the notice of the
respondent/Revenue Authorities that the original assessee had expired,
it was incumbent for the department to re-initiate the proceeding in the
name(s) of the legal representative(s) of the deceased assessee.
8. The material on record reveals several inconsistencies. The
notice under section 148A(b) of the said Act of 1962 has been issued in
the name of the deceased asessee (Laxmi Kant Mahawar). The order
under section 148A(d) and the consequential notice under section 148
of the said Act of 1962 have been issued in the name of the writ
petitioner without referring to his status as the legal representative of
the deceased assesse. The order granting approval for issuance of the
said order under section 148A(d) and the consequential notice under
section 148 of the said Act of 1962 has also been issued in the name of
the writ petitioner without referring to his status as the legal
representative of the deceased assesse. The assessment order has,
however, been issued in the name of the deceased asessee.
9. In view of the fact that the proceeding has been initiated in
the name of a dead person and in view of the several discrepancies as
aforesaid, the assessment order impugned dated 28 th March, 2025 and
the preceding notice of re-opening under section 148 of 1961 Act dated
24th April, 2023 pertaining to the assessment year 2019-2020 are set
aside.
10. However, in view of the binding declaration of law by the
Hon'ble Supreme Court in the case of Jai Prakash Singh (supra), this
order shall not prevent the respondent authorities from re-initiating
assessment proceedings in accordance with law, by issuing fresh notice
under section 148 of 1961 Act upon observing the statutory formalities
prior to the issuance thereof to the legal representatives of the deceased
assesee. The petitioner shall remain obliged to furnish to the
respondent/Income Tax Authorities the names of the other legal
representatives of the deceased assesse, if any, upon the department
writing to the petitioner and seeking information about the same. It is
clarified that in case the petitioner does not respond to the request
made by the revenue for furnishing the names of the legal heirs of the
deceased assessee, the department shall be free to proceed against the
petitioner alone treating the petitioner to be the sole legal representative
of the deceased assesse and the proceeding shall not be assailable on
the ground of non-impleadment of all legal representatives.
11. WPO/408/20205 stands disposed of with the above
observations.
(OM NARAYAN RAI, J.)
S. Mandi
A.R (CR)
