respondent No.1 dated 23.06.2023. Consequent computation
2. In short, the case of the petitioner is that she is wife of
Mr.Mohammed Kaleemuddin. Assessment Year 2020-21
regarding income of Mr.Mohammed Kaleemuddin is under
dispute. Mr.Mohammed Kaleemuddin died due to COVID-19 on
21.05.2021. The death certificate is Ex.P-1. The petitioner filed
this petition being the wife and legal representative of the
aforesaid assessee. Respondent No.1 issued notice under Section
143(2) of the Act on 29.06.2021 (Ex.P-4) followed by other notices
under Section 142(1) on 22.10.2021 and 02.12.2021 (Exs.P-5 and
P-6). All the notices were issued in the name of original assessee.
Respondent No.1 issued notice under Section 142(1) on
24.03.2022 (Ex.P-7) followed by another show cause notice dated
03.08.2022 to the assessee.
3. In turn, the petitioner filed her reply dated 12.08.2022
(Ex.P-9) and informed about the death of her husband on
25.05.2021 and enclosed the death certificate. Without prejudice
to the above, she replied to the show cause notice on merits also
to some extent.
4. Thereafter, respondent No.1 issued a show cause notice
dated 30.08.2022 (Ex.P-10) and directed the petitioner to get
herself registered as legal heir of Mr.Mohammed Kaleemuddin.
The petitioner, in furtherance thereof, admittedly got herself
registered as legal representative. Thereafter, the petitioner filed
another response on 29.09.2022 (Ex.P-11). The petitioner again
informed that original assess is no more.
5. The Department issued yet another draft order under
Section 144C(1) of the Act and name of the petitioner was shown
below the name of the assessee in the capacity of legal heir.
Thereafter, impugned order dated 23.06.2023 was passed in the
same manner by reflecting the name of the assessee and below
that, the name of the petitioner as legal representative.
Contention of the Petitioner:
6. Sri P. Karthik Ramana, learned counsel for the petitioner,
submits that when the petitioner brought it to the notice of the
respondents by reply dated 12.08.2022 (Ex.P-9) that original
assessee is no more, the respondents ought to have substituted
the present petitioner as legal representative. Merely because the
petitioner has filed reply on merits to some extent, it cannot be
said that the petitioner is not prejudiced. Reliance is placed on a
Division Bench judgment of Gujarat High Court in Late
Bhupendra Bhikhalal Desai (Since Dead) Through Legal Heir
Raju Bhupendra Desai v. The Income Tax Officer 1. Thus, it is
submitted that the impugned order may be set aside and liberty
may be reserved to the respondents to bring the petitioner as legal
representative and then proceed afresh in accordance with law.
Lastly, it is informed that the aforesaid judgment of the Gujarat
High Court was unsuccessfully challenged by the Revenue in
Special Leave to Appeal (C) No.13061/2021 which was dismissed
in limine on 03.09.2021.
2021:GUJHC:10820-DB
Contention of the Respondents:
7. Sri Vijhay K Punna, learned Standing Counsel for the
Income Tax Department, submits that the petitioner did not file
any reply to the initial notices. When she filed reply on
12.08.2022 (Ex.P-9), on the first time itself, the Department was
informed about the death of original assessee. However, a careful
reading of this reply as well as reply dated 28.09.2022 (Ex.P-11)
shows that the petitioner submitted to the jurisdiction of the
respondents and put forth her defence on merits. In this
backdrop, no prejudice is caused to the petitioner and no
interference may be made. He placed reliance on the judgment of
the Delhi High Court in Vijay Garg v. Income-tax Officer 2 and
the judgment of the Supreme Court in Deputy Commissioner of
Income Tax (Exemption) and Another v. Kalinga Institute of
Industrial Technology 3.
8. No other point is pressed by both the parties. We have
heard the parties at length and perused the record.
Findings:
9. The admitted facts between the parties are that the husband
of the petitioner died and information thereof was given by the
[2023] 146 taxmann.com 231 (Delhi)
2023 SCC OnLine SC 820
petitioner to the Department vide her reply dated 12.08.2022
(Ex.P-9). In spite of the same, the Department continued to issue
notices in the name of the petitioner's deceased husband. The
petitioner was not officially substituted as legal representative.
This point was already considered by this Court in W.P.No.10339
of 2024, dated 29.04.2024 and the relevant portion reads as
under:
"8. It is not in dispute that the father of the petitioner i.e.,
the assessee died on 15.04.2021. The petitioner filed the death
certificate as well as the communication sent to respondents
dated 16.04.2022. Even assuming that the respondents have
right to proceed against the legal representatives in the teeth of
Section 159 of the Act, Sub-section 2 (a) of said Section makes it
clear that if proceedings were initiated against the deceased
before his death, the same shall continue under deeming
provision. This clause is not applicable because admittedly, the
proceedings were not taken up against the deceased before his
death.
9. So far, Section 159 (2) (b) is concerned, it makes clear
that any proceeding which could have been taken against the
deceased, if he survived, may be taken against the legal
representatives. Assuming for the sake of arguments that the
revenue is equipped with power to proceed against the petitioner
as per Clause (b) of Sub-section (2) of Section 159, for that the
petitioner should have been put to notice by treating him as
legal representative of the deceased, to enable him to effectively
file his reply and contest the matter. Admittedly, in the instant
case all the notices, correspondences and assessment order are
addressed to deceased i.e., Mahender Singh. The petitioner was
never put to notice in the capacity of legal representative of the
deceased. Thus, the petitioner could not have defended himself
in that view of the matter.
10. In this backdrop, we deem it proper to set aside the
impugned assessment order dated 27.02.2024 by reserving the
liberty to the department to proceed against the petitioner if law
so permits.
11. With the above observation, this Writ Petition is allowed
and the assessment order 27.02.2024 is set aside with a liberty
mentioned hereinabove."
(Emphasis Supplied)
10. The similar view is taken by the Gujarat High Court in the
case of Late Bhupendra Bhikhalal Desai (Since Dead) Through
Legal Heir Raju Bhupendra Desai (supra). So far judgment of
the Supreme Court cited by Sri Vijhay K Punna is concerned, it is
not dealing with the death of the assessee and continuance of
proceedings against the deponent without his/her impleadment.
Thus, the said judgment is of no assistance to the Department.
11. So far the judgment of the Delhi High Court in Vijay Garg
(supra) is concerned, in the said case, the assessment proceedings
were in continuance of an initial notice which was issued to the
deceased assessee during his life time. In this factual backdrop,
the Delhi High Court considered Section 159(2) of the Act and held
that since initial notice was issued when assessee was alive, the
Assessing Officer has rightly amended the details of addressee in
the consequential order under Section 148A(b) and notice under
Section 148 of the Act.
12. As noticed above, in the instant case, first notice was issued
in the name of the deceased after his death and thereafter despite
knowing that original assessee is no more, no steps were taken to
substitute the petitioner as legal representative. Thus, this matter
is covered by the order passed by this Court in W.P.No.10339 of
2024, dated 29.04.2024.
13. In the result, the Writ Petition is disposed of by setting
aside the impugned order dated 25.05.2023 passed by respondent
No.2 and also the assessment order passed by respondent No.1
dated 23.06.2023. Liberty is reserved to the respondents to
substitute the petitioner as the legal representative of
Mr.Mohammed Kaleemuddin and proceed in accordance with law.
There shall be no order as to costs. Miscellaneous applications, if
any, shall stand closed.
___________________
SUJOY PAUL, ACJ
___________________
RENUKA YARA, J
19th February, 2025.
TJMR
