Delhi High Court
Attarkali vs Income Tax Officer on 22 September, 2021
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 22.09.2021
+ W.P.(C) 17/2021
ATTARKALI ..... Petitioner
Through: Mr.Nitesh Banka, Adv.
versus
INCOME TAX OFFICER ..... Respondent
Through: Mr.Abhishek Maratha, Sr.
Standing Counsel.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MR. JUSTICE NAVIN CHAWLA
NAVIN CHAWLA, J. (Oral)
The petition has been heard by way of video conferencing.
1. This petition has been filed by the petitioner challenging the
notice dated 30.03.2019 issued under Section 148 of the Income Tax
Act, 1961 (hereinafter referred to as the 'Act') in the name of Sh.
Maharaj Singh, deceased husband of the petitioner.
2. The petitioner asserts that Late Sh.Maharaj Singh expired on
26.07.2014 and therefore, the impugned notice, having been issued in
the name of a dead person, is invalid.
3. The petitioner in support of her submission has also placed on
record the death certificate of Late Sh.Maharaj Singh.
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
27.09.2021 17:21:52
4. Notice of this petition was issued to the respondent on
04.01.2021. Further time to file the counter affidavit was granted to
the respondent vide orders dated 10.05.2021 and 04.08.2021.
However, the counter affidavit has not been filed till date.
5. The learned counsel for the petitioner places reliance on the
judgment dated 16.07.2020 of this Court in Savita Kapila vs. Assistant
Commissioner of Income Tax, Circle 43(1) Delhi, W.P.(C)
No.3258/2020 in support of the submission that notice having been
issued in favour of a dead person is invalid and is in fact non est.
6. On the other hand, the learned counsel for the respondent places
reliance on sub-Section 3 of Section 159 of the Act to submit that for
the purposes of the Act, a legal representative of the deceased assessee
is deemed to be an assessee and therefore, the notice is valid and can
be proceeded against the legal heirs of Late Sh.Maharaj Singh.
7. We find no merit in the submission made by the learned counsel
for the respondent.
8. In Savita Kapila (supra), this Court has held that the sine qua
non for acquiring jurisdiction to reopen an assessment is that notice
under Section 148 of the Act should be issued to a correct person and
not to a dead person. This Court further held that Section 159 of the
Act applies to a situation where the proceedings are initiated/pending
against the assessee when he is alive.
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
27.09.2021 17:21:52
9. Section 159(3) of the Act can come to the aid of the respondent
only if the notice is issued in the name of the legal representative of
the deceased as an assessee.
10. In the present case, notice is admittedly issued only in the name
of the deceased person and not in the name of the legal representatives
and therefore, no reliance can be placed by the respondent on Section
159(3) of the Act.
11. Accordingly, the impugned notice dated 30.03.2019 is quashed
and set aside. All proceedings consequent to the impugned notice are
also set aside.
12. The petition is allowed in the above terms. There shall be no
order as to costs.
13. The order be uploaded on the website forthwith. Copy of the
order be also forwarded to the learned counsel through e-mail.
NAVIN CHAWLA, J
MANMOHAN, J
SEPTEMBER 22, 2021/rv/U.
Signature Not Verified
Digitally Signed
By:SHALOO BATRA
27.09.2021 17:21:52
