Prakashchandra Gamanlal Kantliwala Vs ITO (Gujarat High Court)
Summary: The Gujarat High Court allowed the petition challenging a notice under Section 148 issued to a deceased assessee for Assessment Year 2021-22. The notice dated 29.03.2025 was addressed to Nilima Kantilal Surti, who had died on 12.05.2024, and was issued after obtaining approval from the specified authority under Section 151 on 27.03.2025. The petitioner subsequently requested registration as her legal heir on the income-tax portal on 05.05.2025, and the Department accepted the request on 08.05.2025. Relying on Chandreshbhai Jayantibhai Patel vs. Income Tax Officer, the petitioner argued that the notice was non-est because it had been issued to a dead person. The Revenue opposed the petition, contending that it had no knowledge of the assessee’s death until receipt of the Court’s interim order dated 10.07.2025, which restrained it from passing a final assessment order. The Court noted that the notice had admittedly been issued after the assessee’s death.
It reiterated that such a notice is invalid unless the legal representative submits to the Assessing Officer’s jurisdiction without raising objections. Although the petitioner’s registration as legal heir had been accepted, no notice had been issued to him in that capacity. Referring to Urmilaben Anirudhhasinhji Jadeja vs. Income Tax Officer, the Court explained that merely informing the Assessing Officer of the assessee’s death does not constitute participation in assessment proceedings. It therefore quashed the notice dated 29.03.2025 and allowed the petition. However, the respondent authority remained free to reopen or re-initiate proceedings against the petitioner if permissible under Section 159 of the Income Tax Act, 1961.
Cases Discussed
- Urmilaben Anirudhhasinhji Jadeja vs. Income Tax Officer, [2020] 117 Taxmann.com 504 (Gujarat High Court) — Relied upon by the Court for the distinction between merely intimating the assessee’s death and participating in reassessment proceedings.
- Chandreshbhai Jayantibhai Patel vs. Income Tax Officer, (2019) 101 taxmann.com 362 (Gujarat High Court) — Relied upon by the petitioner to contend that a Section 148 notice issued to a dead person is non-est in law.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. Heard Mr.Manish J. Shah, learned advocate appearing for the petitioner and Mr.Rutvij R. Patel, learned Senior Standing Counsel appearing for the respondents.
2. By way of the present petition, the petitioner herein has prayed for the following reliefs: “
A) this Hon’ble Court be pleased to call for the records of the proceedings, look into them and be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing the impugned notice u/s 148 dated 29.03.2025 at Annexure-C.
B) this Hon’ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction asking the respondent not to proceed further in pursuance of the Notice u/s 148 dated 29.03.2025 at Annexure-C.
C) Pending the hearing and final disposal of this application, this Hon’ble Court be pleased to grant the stay of further proceedings in pursuance of notice issued u/s.148 dated 29.03.2025 at Annexure-C.
D) This Hon’ble Court be pleased to grant any further or other relief as this Hon’ble Court deems just and proper in the interest of justice, and
E) This Hon’ble Court be pleased to allow this application with costs against the respondent.”
3. At the outset, it is submitted that the impugned notice dated 29.03.2025 for Assessment Year 2021-22 was issued by the respondent herein under Section 148 of the Income Tax Act, 1961, (for short, “the Act”) to late Nilima Kantilal Surti, who expired on 12.05.2024 after obtaining prior approval of specified authority under Section 151 of the Act on 27.03.2025 and asked her to file return of income in response to notice under Section 148 of the Act. The petitioner registered himself as legal heir on the income-tax portal by making a request on 05.05.2025, which was ultimately accepted by the income tax authority on 08.05.2025.
4. Mr.Manish J. Shah, learned advocate for the petitioner has placed reliance on the ratio laid down in the case of Chandreshbhai Jayantibhai Patel vs. Income Tax Officer, (2019) 101 taxmann.com 362 (Gujarat) and submitted that the impugned notice having been issued to a dead person is non-est in the eyes of law. It is submitted that the present petition is required to be allowed on the aforesaid ground by setting aside the impugned notice dated 29.03.2025.
5. Mr.Rutvij R. Patel, learned Senior Standing Counsel has relied on the affidavit-in-reply and submitted that petitioner herein registered himself as legal heir of late Nilima Kantilal Surti on 05.05.2025, which was approved on 08.05.2025. The Department did not have knowledge of assessee’s death until for the first time upon receipt of the order dated 10.07.2025 passed by the Coordinate Bench of this Court in the present petition whereby direction was issued restraining the respondents from passing of any final order in the assessment proceeding. Hence, this Court may not entertain the present petition.
6. Having heard learned advocates appearing for the respective parties, undisputedly the show-cause-notice under Section 148 of the Act was issued on 29.03.2025 to deceased assessee i.e. Nilima Kantilal Surti, who expired on 12.05.2024. Though the petitioner herein registered himself as legal heir on income-tax portal by making request on 05.05.2025, which was duly accepted by the income tax authority on 08.05.2025, the notice dated 29.03.2025 is issued to a dead person. 6.
6.1 It is pertinent to note that notice issued under Section 148 of the Act to a dead person is invalid unless a legal representative submits to the jurisdiction of the Assessing Officer without raising any objections. Though name of the legal representative i.e. petitioner herein is accepted by the respondent authority, as referred to hereinabove, on 08.05.2025, no notice is issued to the petitioner herein in his capacity as legal heir.
7. At this stage, it is apposite to refer to the decision rendered in the case of Urmilaben Anirudhhasinhji Jadeja vs. Income Tax Officer, [2020] 117 Taxmann.com 504 (Gujarat), more particularly, paragraph no. 18 which reads thus:
“118. We are not impressed by the submissions canvassed on behalf of the Revenue that the writ-applicant having participated in the proceedings cannot turn around and submit that the proceedings cannot continue as the notice was issued to a dead person. This argument of the learned counsel needs to be considered in light of the materials on record. We take notice of the fact that in fact the writ-applicant cannot be said to have participated in the proceedings in any manner. All that the writ-applicant did was, she informed the Assessing Officer that the notice was issued in the name of her husband who was already dead and gone. In our opinion, such intimation to the Assessing Officer cannot be termed as participating in the proceedings. We could have appreciated this argument canvassed on behalf of the Revenue if the writ-applicant would have filed her return accordingly. If that would have been the position, we could have very well accepted the argument that having participated in the proceedings, such issue could not have been raised.”
8. Considering the aforesaid position of law and the facts of the present case, for reasons referred hereinabove, the impugned notice dated 29.03.2025 is required to be quashed and set aside, the same having been issued to a dead person and the same is hereby quashed and set aside.
9. The present petition is allowed. It is open for the respondent authority to reopen or re-initiate proceedings against the petitioner if permissible in accordance with provision of Section 159 of the Act.
