Gujarat High Court

Late Pravinkumar B Talaviya ... vs Income Tax Officer Ward 3(1)(4) on 16 January, 2023

Bench: Sandeep N. Bhatt

    C/SCA/5414/2021                                 ORDER DATED: 16/01/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 5414 of 2021

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     LATE PRAVINKUMAR B TALAVIYA (SINCE DECD) THROGH LH
              RAMBHABEN PRAVINKUMAR TALAVIYA
                           Versus
               INCOME TAX OFFICER WARD 3(1)(4)
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Appearance:
DARSHAN R PATEL(8486) for the Petitioner(s) No. 1
MRS KALPANAK RAVAL(1046) for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3
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 CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
       and
       HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                             Date : 16/01/2023

                          ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. Petitioner is before this Court seeking to challenge the

action of the respondent authorities with following

prayers:

"(A) Issue a writ of certiorari and/or a writ of mandamus and/or any other writ direction or order to quash and set aside the impugned notices under Section 153C for A.Y. 2013-14 to A.Y. 2019-2020 dated 15.12.2020 under Section 153C annexed at Annexure-'A colly', to quash and set aside the intimation letter dated 01.02.2021 annexed at B Annexure-'E' and to quash and set aside the intimation u/s 142(1) dated 04.02.2021 annexed at Annexure-'F'.

(B) Pending admission, hearing, and disposal of this petition, ad-interim relief granted and the Respondent be ordered to restrain.

(BB) Issue a writ of certiorari and/or a writ of mandamus and/or any other writ direction or order to quash and set aside the impugned Order u/s 144 dated 29/09/2021 annexed at Annexure-'I' and the Notices under Section

C/SCA/5414/2021 ORDER DATED: 16/01/2023

274 read with Section 270A of the Income Tax Act, 1961 on 29/09/2021 and 07/10/2021 as Annexure-'J'(Colly), penalty order u/s. 271(1)(b) along with demand notice u/s.156 for A.Y. 2013-14 to 2019-20 date 05/01/2022 as Annexure-'K' (Colly), and the Notices for Recovery of outstanding demand for A.Y. 2014-15, A.Y.2015-16 and A.Y.2019-20 as Annexure-'L' (Colly).

(BC) Pending admission, hearing, and disposal of this petition, ad-interim relief be granted and the Respondent be ordered to restrain from enforcing compliance of the impugned Order u/s 144 dated 29/09/2021 annexed at Annexure-'I' B and the Notices under Section 274 read with Section 270A of the Income Tax Act, 1961 on 29/09/2021 and 07/10/2021 as Annexure-'J'(Colly) penalty order u/s.271(1)(b) alongwith demand notice u/s.156 for A.Y. 2013-14 to 2019-20 date 05/01/2022 as Annexure-'K' (Colly) and Notices for Recovery of outstanding demand for A.Y. 2014-15, A.Y.15-16 and A.Y. 2019-20 as Annexure-'L' (Colly) from enforcing compliance of the impugned notices under Section 153C for A.Y. 2013-14 to A.Y. 2019-2020 dated 15.12.2020 under Section 153C annexed at Annexure-'A Colly', the intimation letter dated 01.02.2021 annexed at Annexure-'E' and the intimation u/s 142(1) dated 04.02.2021 annexed at Annexure-'F'.

         (C)       Award the cost of this petition.

         (D)     Grant such other and further reliefs as this Hon'ble
         Court deems fit."

2. The short question is as to whether notice under

section 153C of the Income Tax Act ("The Act" for

short) issued against deceased Pravinkumar B.

Talaviya for the Assessment Year 2013-14 to

Assessment Year 2019-20.

3. Relying on the decision of Bhupendra Bhikhalal Desai vs. Income Tax Officer, Ward 1(2)(1) , [2021] 130 taxmann.com 196 (Gujarat), where the Court has

C/SCA/5414/2021 ORDER DATED: 16/01/2023

decided identical issue and disapproved the issuance of notice on the deceased relying on the following paragraphs:

"21. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the proceedings initiated by the Assessing Officer pursuant to the notice issued under section 153C of the Act to a dead person are sustainable in law.

22. A Coordinate Bench of this Court, in the case of Chandreshbhai Jayantibhai Patel v. ITO [2019] 101 taxmann.com 362/261 Taxman 137/413 ITR 276, had the occasion to consider an identical issue but in context with section 148 of the Act. We should look into the observations made by the Coordinate Bench in the judgment, which read thus :

'5. Mr.Chintan Dave, learned advocate for the petitioner submitted that the issuance of a valid notice is the foundation for the validity of the assessment. It was contended that the defect in procedure will normally not amount to lack of jurisdiction, however, the notice prescribed under section 148 of the Act for the purpose of initiation of reassessment proceedings is not a mere procedural requirement, but is a condition precedent to the validity of the assessment. If no notice is issued or if the notice issued is shown to be invalid, the proceedings initiated would be invalid and void. The notice issued in the name of a dead person is not a valid notice and in the absence of issuance of a valid notice, the proceedings initiated under section 147 of the Act cannot be said to be valid.

5.1 It was further submitted that in this case, the notice has been issued to a dead person and hence, such notice is null and void. To initiate proceedings under section 147 of the Act, issuance of notice under section 148 of the Act to the heirs and legal representatives of the deceased is mandatory, in the absence of which the proceedings cannot be continued by issuance of notices under section 142(1) of the Act against the heirs. Reliance was placed upon the decision of this court in Rasid Lala v. Income Tax Officer, Ward-1(3)(6), [2017] 77 taxmann.com 39 (Guj.), wherein the notice under section 148 of the Act was issued to the assessee long after he had passed away. The heir of the deceased informed the Assessing Officer that theassessee has passed away and, therefore, the notice under section 148 of the Act is invalid, despite which the heir was told to file the return of income in compliance of the said notice. The court held that the notice issued in the name of a dead person was not valid and that despite being informed about the death of the original

C/SCA/5414/2021 ORDER DATED: 16/01/2023

assessee, the assessee, instead of taking corrective measures as provided under section 292B of the Act and issuing fresh notice to the heirs of the deceased, continued with the reassessment proceedings against the dead person. The court further held that section 159 of the Act would not be applicable to the facts of that case, and that, even if section 159 is attracted, the notice was required to be issued in the name of the heirs of the deceased assessee. Mr. Dave submitted that the aforesaid decision would be squarely applicable to the facts of the present case and that the impugned notice dated 28-3-2018 issued under section 148 of the Act having been issued against a dead person as well as the subsequent notices issued pursuant thereto, are invalid and are, therefore, required to be quashed and set aside. 5.2 The learned advocate for the petitioner also placed reliance upon the decision of the Madras High Court in the case of Alamelu Veerappan v. Income-tax Officer, Non-corporate Ward- 2(2), Chennai, [2018] 257 Taxman 72 (Madras), wherein the court held thus:

"16. The settled legal principle being that a notice issued in the name of the dead person is unenforceable in law. If such is the legal position, would the Revenue be justified in contending that they, having no knowledge about the death of the assessee, are entitled to plead that the notice is not defective. In my considered view, the answer to the question should be definitely against the Revenue."

4. In view of the above decision, this writ application succeeds and is hereby allowed. The impugned notice dated 15.12.2020 is hereby quashed and set aside. All consequential proceedings pursuant thereto also stand terminated.

5. Petition stands disposed of accordingly.

(MS. SONIA GOKANI, J. )

(SANDEEP N. BHATT,J) SUDHIR