Ramesh Khimji Patel And L/R Of Late ... vs Income Tax Officer Ward 3, ...
2022 Latest Caselaw 8468 Guj

      C/SCA/16930/2022                                ORDER DATED: 27/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 16930 of 2022

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       RAMESH KHIMJI PATEL AND L/R OF LATE KHIMJI HARJI PATEL
                              Versus
      INCOME TAX OFFICER WARD 3, GANDHIDHAM (BHUJ 1) OR HIS
                            SUCCESSOR
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Appearance:
MR SN DIVATIA(1378) for the Petitioner(s) No. 1
MRS. KALPANA RAVAL (1046) for the Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                              Date : 27/09/2022

                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

Having regard to the compass of the case involved in the petition

and on the request made by the learned advocates appearing for the

parties, the petition is taken up for final consideration.

1.1 Rule, returnable forthwith. Learned advocate Mr. Nikunt

Raval waives service of Rule for the respondent authorities .

1.2 Heard learned advocate Mr. S. N. Divatia for the petitioner and

learned advocate Mr. Nikunt Raval for the respondent authorities.

C/SCA/16930/2022 ORDER DATED: 27/09/2022

2. The petitioner Ramesh Khimji Patel-legal heir of deceased Khimji

Harji Patel by filling present petition under Article 226 of the

Constitution has prayed to set aside notice dated 26.7.2022 issued by the

Assessing Officer under section 148 of the Income Tax Act, 1961 in

respect of the Assessment Year 2013-2014 stating that for the reasons to

believe, the income chargeable to tax for the Assessment Year under

consideration has escaped assessment within the meaning of section 147

of the Income Tax Act, 1961 (hereinafter referred to as 'the Act').

3. Therefore, the Assessing Officer has proposed to assess/re-assess

the income of the addressee of the notice. The notice was issued in the

name of Khimji Harji Patel.

4. Learned advocate for the petitioner invited attention of the Court to

the impugned notice issued under section 148 of the Income Tax Act,

1961 to point out that the same has been issued in the name of Khimji

Harji Patel, who died on 29.11.2019. Learned advocate further invited

attention of the court that notice under section 148 of the Act for the

Assessment Year 2013-2014 under the old regime was also issued on

22.4.2021, to which the petitioner replied by addressing a communication

dated 6.6.2022. In the said communication, the petitioner intimated the

C/SCA/16930/2022 ORDER DATED: 27/09/2022

authority concerned that the noticee had died on 29.11.2019. The death

certificate is produced on record of this petition.

4.1 It was submitted that even after the communication dated

6.6.2022, the Assessing Officer issued notice under section 148 of the

Act to the petitioner under the new regime. It was submitted that the

impugned notice, having been issued against a dead person, was invalid

and that pursuant to the notice issued to the dead person, any assessment

order could not have been passed against the legal heir-the petitioner

herein.

5. The question whether the income tax authorities can subject a dead

person to the assessment proceeding, is no longer res integra.

5.1 The Division Bench of this Court in Urmilaben Anirudhhasinji

Jadeja Vs. Income Tax Officer, Ward 7(1)(3) [(420) ITR 226],

addressed the very issue. The Court considered various decisions of the

Supreme Court and the High Court, touching the aspects of the issue, and

held that there cannot be any assessment against a dead person. In that

case also, notice was issued to the dead assessee under Section 148 of the

Income Tax Act, 1961.

5.2     While holding that the proceedings would be nullity against the




     C/SCA/16930/2022                                            ORDER DATED: 27/09/2022

dead assessee, the rider was provided that in cases where legal

representatives participate in the assessment or re-assessment

proceedings, the proceedings may be maintained and continued. It was at

the same time held that mere intimation by the legal representative to the

assessing officer that the noticee is dead, would not amount the heir

participating in the proceedings. In Urmilaben Anirudhhasinji Jadeja

(supra), while the revenue raised various contentions seeking a

proposition that the proceedings against the dead assessee would be

maintained, the Court negatived them all.

5.2.1 One of the contentions was based on Section 292BB of the Act.

The said provision contemplates that the notice shall be deemed to be

valid in certain circumstances. It mentions that where an assessee has

appeared in any proceedings or cooperated in any inquiry relating to

assessment or re-assessment, it shall be deemed that a notice required to

be served under the Act has been duly served upon him. Such assessee, it

is provided, shall be precluded from taking any objection about the

service of the service of the notice and manner of the service.

5.2.2 The Division Bench held that the said provision would not apply in

cases where notices are gone to the dead assessee and the proceedings are

started against a dead assessee. It was observed and held in paragraph 23

C/SCA/16930/2022 ORDER DATED: 27/09/2022

thus,

"The purport of Section 292BB of the Act is that in the event of any mistake, defect or omission in the notice or other proceedings, if the same is in conformity with or according to the intent and purpose of the Act, the notice cannot be termed as invalid. To put it in other words, the notice should be in conformity with and in accordance with the intent and purpose of the Act. In our opinion, a case in which notice is issued to a dead person could be termed as nullity. It is something like a safeguard passing a decree against a dead person which cannot be executed through the legal representatives of the judgment-debtor."

5.3 Similar view was taken by the co-ordinate Bench of this court in

Chandreshbhai Jayantibhai Patel vs. Income Tax Officer [(2019) 101

taxmann.com 362 (Gujarat)].

5.4 The facts of the case do not offer any fact or circumstances to

suggest that the legal representative of the deceased assessee in any

manner submitted to the jurisdiction of the income tax authorities or in

any way participated in the proceedings so as to persuade the court to

hold otherwise.

6. In view of the above, the present petition deserves to be allowed. It

is hereby allowed by holding that the impugned notice, which was against

the dead assessee could not be sustained.

       C/SCA/16930/2022                            ORDER DATED: 27/09/2022




6.1     Resultantly, the notice dated 26.07.2022 issued in the name of

Khimji Harji Patel, as a dead person, by the income tax department, is

held to be illegal.

7. The Notice dated 26.07.2022 issued by the income tax authorities

is set aside. Rule is made absolute.

(N.V.ANJARIA, J)

(BHARGAV D. KARIA, J) C.M. JOSHI