Madhya Pradesh High Court
Rohit Baveja vs Principal Commissioner Of Income Tax on 15 January, 2025
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:1671
1 WP-35859-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 15th OF JANUARY, 2025
WRIT PETITION No. 35859 of 2024
ROHIT BAVEJA
Versus
PRINCIPAL COMMISSIONER OF INCOME TAX AND OTHERS
Appearance:
Shri Sapan Usrethe - learned counsel for the petitioner.
Shri Siddharth Sharma - learned counsel for the respondents.
ORDER
Per: Justice Sushrut Arvind Dharmadhikari
With the consent of parties, the matter is heard finally.
2. This petition under Article 226 of the Constitution of India has been
filed by the petitioner assailing the legality, validity and propriety of
impugned orders dated 24.4.2023, annexure P/1, 20.3.2024, annexure P/2,
21.3.2024, annexure P/3, 23.3.2024, annexure P/4 passed by respondent no.3
and 6.7.2022, annexure P/10 passed by respondent no.2 whereby the
respondents have passed the assessment orders against dead person in
pursuance to notice issued under section 148 of the Income Tax Act, 1961
(hereinafter referred to as 'the Act').
3. Learned counsel for the petitioner submitted that the petitioner had
informed with regard to the death of his father during the assessment
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proceedings in compliance of notice under section 142(1) of the Act.
Learned counsel for the petitioner contended that his father died on
29.4.2021, therefore, a fresh notice ought to have been issued in the name of
the petitioner (son), since no proceedings under section 142(1) can continue
against a dead person. The petitioner had timely informed the Department
regarding the death of his father. In spite of the aforesaid, no action was
taken to implead him as LRs, as envisaged under section 159(2)(a) of the
Act. Learned counsel for the petitioner contended that the effect of section
159 was not considered in the order. It is further contended that similar issue
arising out of the issuance of notice under section 142(1) is no more res
integra and the same has been dealt with by a Division Bench of this Court at
Indore in the case of Meet Lalwani, L/h of late Mrs.Amita Lalwani Vs.
Income Tax Officer, (2024) 337 CTR (MP) 602, wherein it is held that notice
issued in the name of dead person is unenforceable in the eyes of law.
4. Per contra, learned counsel for the Revenue opposed the prayer and
contended that the judgment in the case of Meet Lalwani (supra) is different
and cannot be applied in the facts and circumstances of the present case. The
petition deserves to be dismissed on this ground alone.
5. Heard the learned counsel for the parties.
6. Taking into consideration the fact that this Court has already taken a
decision in the case of Meet Lalwani (supra) wherein it is held that issuance
of notice under Section 148 of the Act in the name of deceased cannot be
sustained. The issue of notice under Section 148 of the Act is a foundation
for reopening of assessment. The sine qua non for acquiring jurisdiction to
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reopen an assessment is that such notice should be issued in the name of
correct person meaning thereby the same should not have been issued in the
name of dead person. Admittedly, the provisions of Section 159 A of the Act
of 1961 has not been taken into consideration in the case of Meet Lalwani
(supra).
7. In view of the fact that the issue involved in the present petition being
covered by the judgment of Meet Lalwani (supra) , this Court has no
hesitation in quashing the impugned orders dated 24.4.2023, annexure P/1,
20.3.2024, annexure P/2, 21.3.2024, annexure P/3, 23.3.2024, annexure P/4
passed by respondent no.3 and 6.7.2022, annexure P/10 passed by
respondent no.2.
8. Accordingly, the impugned notices dated 24.4.2023, annexure P/1,
20.3.2024, annexure P/2, 21.3.2024, annexure P/3, 23.3.2024, annexure P/4
passed by respondent no.3 and 6.7.2022, annexure P/10 passed by
respondent no.2 are hereby quashed and set aside. However, looking to the
fact that the effect of Section 159 of the Act has not been considered in the
case of Meet Lalwani (supra) , the respondents/Department would be at
liberty to proceed against the petitioner in accordance with law.
9. This petition is allowed to the extent indicated herein above.
10. No order as to cost.
(SUSHRUT ARVIND DHARMADHIKARI) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
HS
