Madhya Pradesh High Court
Late Smt. Shakuntala Thakur Through L/H ... vs Income Tax Officer Shajapur on 27 February, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 27 th OF FEBRUARY, 2024
WRIT PETITION No. 8100 of 2022
BETWEEN:-
LATE SMT. SHAKUNTALA THAKUR THROUGH L/H SHRI
SANTOSH SINGH THAKUR S/O SHIVSINGH THAKUR,
AGED ABOUT 49 YEARS, OCCUPATION: BUSINESS NEAR
RADHA PETROL PUMP, A.B. ROAD, SHAJAPUR
(MADHYA PRADESH)
.....PETITIONER
(SHRI ASHISH GOYAL, LEARNED COUNSEL FOR THE PETITIONER)
AND
1. INCOME TAX OFFICER SHAJAPUR INCOME TAX
OFFICER INCOME TAX OFFICE, DHOBI
CHOURAHA, GANGA MARKET, SHAJAPUR
(MADHYA PRADESH)
2. JOINT COMMISSIONER INCOME TAX INCOME
TAX R1, UJJAIN 127, DEWAAS RD. NEAR LIC
OFFICE, BHARATPURI, UJJAIN (MADHYA
PRADESH)
3. UNION OF INDIA, THR. THE SECRETARY,
MINISTRY OF FINANCE GOVERNMENT OF INDIA.
MINISTRY OF FINANCE GOVERNMENT OF INDIA.
NORTH BLOCK NEW DELHI (DELHI)
.....RESPONDENTS
(MS VEENA MANDLIK, LEARNED COUNSEL FOR THE RESPONDENT)
This petition coming on for order this day, Justice Sushrut Arvind
Dharmadhikari passed the following:
Signature Not Verified
Signed by: SEHAR HASEEN
Signing time: 29-02-2024
10:25:27
2
ORDER
Heard, finally with the consent of both the parties.
The present petition under Article 226 of the Constitution of India
challenges the notice dated 30.03.2021 issued in case No.
ITBA/AST/S/148/2021-21/1031903099(1) u/S 148 of the Income Tax Act,
1961(referred to as 'the Act of 1961" hereinafter) seeking re-opening of
assessment for the assessment year 2016-17 being illegal, without jurisdiction,
arbitrary and in violation of principles of natural justice.
2 . Brief facts of the case are that the present petition has been filed
through Shivsingh Thakur S/O Late Smt. Shakuntala Thaku who had died on
18.01.2017. After her death, notice u/S 148 of the Act of 1961 dated 30.03.2021
was issued on 01.04.2021 whereby the assessement has been reopened u/S 148
of Act of 1961. The final assessment order dated 30.03.2022 was passed and
the assessed income of Rs. 2,23,21,390/- was notified. As a result of such
assessment, Rs. 84,19,415/- was demanded from the petitioner. Hence, the
present petition is filed.
3. Learned counsel for the petitioner contended that respondents could
not have issued notice u/S 148A(b) of the Act since Late Smt. Shakuntala
Thakur had died in the year 2017 itself. The said factum of death was very well
known to the respondents, therefore, the notice u/S 148 of the Act of 1961 has
been issued in the name of legal heirs of Smt. Shakuntala Devi. It is further
submitted that an essential condition to issue notice u/S 148 of the Act of 1961
is that the notice must be issued to the person who is alive and the same cannot
be issued to a dead person. Learned counsel for the petitioner has placed
reliance on the order passed by this Court in the case of Shri Kirankant Shah
Vs. Income Tax Officer & Another in W.P. No. 10206/2023 wherein this
Court has set aside the notice u/S 148A(b) issued on the ground that reopening
notice cannot be issued in the name of a dead assessee and the same is null and
void being without jurisdiction.
4. On the other hand, learned counsel for the respondents opposed the
petition and vehemently argued that the petitioner did not inform the department
in time that the original assessee had died and also did not produce her death
certificate. The petitioner had filed return in the name of Late Smt. Shakuntala
Thakur even after her death. However, it was the sole responsibility of the
petitioner to inform about death of the original assessee. The petitioner has filed
reply to Sec 148 proceedings before the Assessment Officer. Thereafter, final
assessment order has already been passed. Therefore, now at this stage,
challenging the show cause notice is inappropriate.
5. Learned counsel for the respondents further submitted that even
otherwise, final assessment order is appealable u/S 246 of the Act of 1961 and
the petitioner ought to have availed the said remedy instead of filing the present
petition. In support of her contention, learned counsel has relied upon the
judgment passed by co-ordinate Bench of this Court in the case of Neeraj
Mandloi Vs. Assistant Commissioner of Income Tax & Anr. reported in
(2017) 293 CRT Reports 245 , wherein it has been held as under:
"In the assessment order, detailed analysis of various
aspects of the matter has been done and the assessment has been
completed, that being so, at this stage when the assessment is
already over after notice u/S 148 was issued and when proceedings
under s. 147 have attained finality in view of the assessment order,
it is not appropriate for this Court to go into various aspects of the
matter and entertain the writ petition, merely because in some other
case, the writ petition is pending consideration. "
6. In view of the facts and circumstances of the present case as well as
in the light of the judgment passed in the case of Neeraj Mandloi(supra), the
present petition is liable to be dismissed.
7. Heard, learned counsel for the parties and perused the record.
8. It is not in dispute that the stage of show cause notice u/S 148 of the
Act of 1961 is already over. Thereafter, much water has flowed as assessment
proceedings have taken place and final assessment order has been passed.
Admittedly, the petitioner did not inform regarding death of the original assessee
alongwith death certificate to the department. When a statutory forum is created
for redressal of grievance, normally writ petition cannot be entertained ignoring
such statutory dispensation. In exceptional circumstances, there are deviation to
the aforesaid rule, but in this case, the proceedings u/S 148 had attained finality.
Now, at this stage, petitioner has an efficacious statutory alternative remedy to
challenge the same u/S 246 of the Act of 1961. Therefore, it is inappropriate
for this Court to take indulgence in the matter by-passing the statutory remedy
available.
9. Accordingly, the present petition is disposed off with liberty to the
petitioner to take recourse to statutory remedy of appeal available for
challenging the assessment order. However, the period spent by the petitioner in
prosecuting this petition shall not come in way while calculating the delay in
filing the appeal.
10. With the aforesaid liberty, petition stands disposed off. No order as
to cost.
(S. A. DHARMADHIKARI) (HIRDESH)
JUDGE JUDGE
sh
