Uttarakhand High Court
Unknown vs The State Of Uttarakhand on 21 May, 2025
2025:UHC:4295-DB
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI G. NARENDAR
AND
HON'BLE SRI JUSTICE ALOK MAHRA
WRIT PETITION (M/B) No. 261 OF 2025
21st May, 2025
Kailash Singh Rawat (Deceased) ...... Petitioner
Versus
The State of Uttarakhand
and Others ...... Respondents
Presence:-
Dr. Govind Singh Latwal and Mr. Pankaj Tiwari, learned counsel for
the petitioner.
Ms. Pooja Banga, learned Brief Holder for the State.
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JUDGMENT:
(per Hon'ble Justice Sri Alok Mahra)
This petition is directed against order dated
16.08.2024 passed under Section 73 of the Goods and
Services Tax Act, 2017 (for short 'the Act') wherein a
demand of Rs. 1,77,390/- has been raised in the name of
Kailash Singh Rawat.
2. The petitioner Laxmi Devi Rawat, wife of
deceased Kailash Singh Rawat has filed the petition inter
alia with the submissions that Kailash Singh Rawat had
died on 12.09.2020 and on account of his death, the GST
registration of the proprietorship firm M/s. Rawat
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Furniture and Electronics, which was in the name of
deceased Kailash Singh Rawat, was cancelled by order
dated 14.08.2021. Whereafter a show cause notice dated
29.04.2024 was issued in the name of deceased Kailash
Singh Rawat under Section 73 of the Act.
3. Submissions have been made that once,
proprietor of the firm has already died and the registration
of the firm has already been cancelled, there was no
occasion for issuing a show cause notice in the name of
the deceased and as the proceedings have been
conducted in the name of the deceased Kailash Singh
Rawat, the same are void ab initio and, therefore, the
order impugned deserves to be quashed and set aside.
4. Learned counsel for the respondents supported
the order impugned with the aid of provisions of Section
93 of the Act. Submissions have been made that under
the provisions of Section 93, the recovery can be made
from the legal representatives even after the
determination has been made after the death of the
proprietor of the firm.
5. We have considered the submissions made by
counsel for the parties and have perused the material
available on record.
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6. Undisputed facts are that the show cause notice,
reminders and determination of tax have been made after
the death of the proprietor of the firm. Provisions of
Section 93 of the Act, insofar as relevant, reads as under:
"93. Special provisions regarding liability to pay
tax, interest or penalty in certain cases:
"(1) Save as otherwise provided in the Insolvency
and Bankruptcy Code, 2016 (31 of 2016), where a
person, liable to pay tax, interest or penalty under
this Act, dies, then -
(a) if a business carried on by the person is
continued after his death by his legal representative
or any other person, such legal representative or
other person, shall be liable to pay tax, interest or
penalty due from such person under this Act; and
(b) if the business carried on by the person is
discontinued, whether before or after his death, his
legal representative shall be liable to pay, out of the
estate of the deceased, to the extent to which the
estate is capable of meeting the charge, the tax,
interest or penalty due from such person under this
Act,
whether such tax, interest or penalty has been
determined before his death but has remained
unpaid or is determined after his death."
7. A perusal of the above provision would reveal
that the same only deals with the liability to pay tax,
interest or penalty in a case where the business is
continued after the death, by the legal representative or
where the business is discontinued, however, the
provision does not deal with the fact as to whether the
determination at all can take place against a deceased
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person and the said provision cannot and does not
authorise the determination to be made against a dead
person and recovery thereof from the legal representative.
8. Once the provision deals with the liability of a
legal representative on account of death of the proprietor
of the firm, it is sine qua non that the legal representative
is issued a show cause notice and after seeking response
from the legal representative, the determination should
take place.
9. Hon'ble Supreme Court in the case of N. Binoj
and Ors. Vs. Income Tax officer, Ward-2, Tirur and
Others, has observed as hereunder:-
"15. The Apex Court in Sheela Devi v. Principal
Commissioner of Income Tax [MANU/ID/0285/2022]
held that, notice issued against a dead person is null and
void and all consequent proceedings/orders being equally
tainted, are liable to be set aside.
16. In Shabina Abraham and Others v. Collector
Central Excise and Customs [MANU/SC/0801/2015:
2015: INSC : 528 :(2015)10 SCC 770] the Apex Court
had occasion to discuss about the tax liability of the dead
person. In Shabina Abraham's case (supra) the Apex
Court would observe that "nothing is certain, except
death and taxes". To tax the dead is a contradiction in
terms. Tax laws are made by the living to tax the living."
10. In view thereof, the determination made in the
present case wherein the show cause notice was issued
and the determination was made against the dead person
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without issuing notice to the legal representative, cannot
be sustained.
11. Consequently, the writ petition is allowed. The
order dated 16.08.2024 is quashed and set aside. The
respondents would be free to take appropriate
proceedings in accordance with law.
________________
G. NARENDAR, C.J.
____________
ALOK MAHRA, J.
Dt: 21st May, 2025
Ujjwal
