Case Law Details
S. M. Sarveswaran (HUF) Vs ITO (Madras High Court)
The petitioner’s father by name V.Maruthachalam was not an assessee to his knowledge and did not file income tax return either for the financial year 2011-12 /Assessment year 2012-13 or for the earlier years. His father was an agriculturist and possessed only agricultural lands. He did not have any other income except the agricultural income. Therefore, there was no need to file any return of income under the Income Tax Act. He died on 02.08.2012, leaving behind the petitioner and his two sisters viz., Pushparagini and J.Nirmala, as his legal heirs. The petitioner’s mother predeceased the petitioner’s father. Whileso, after six years of the petitioner’s father’s demise, the respondent issued the impugned notice under Section 148 of the Income Tax Act in the name of the petitioner’s deceased father represented by the legal heirs, out of whom, the first person was shown as M/s. S. M. Saraveswaran (HUF). The notice issued on the dead person is a nullity and void. A HUF cannot be legal heir of a person. The present notice is barred by limitation, since the notice is issued after lapse of four years from the end of the said assessment year.
The writ petition is not maintainable challenging the notice issued under Section 148 of the Income Tax Act. The Hon’ble Supreme court in GKN Drive Shafts’ case reported in 259 ITR 19 (SC), clarified the procedure to be followed, when notice is issued under Section 148. Therefore, the petitioner has to follow such procedure including by asking the reasons for reopening the assessment. Upon the request so made, the reasons can be furnished and the petitioner can file objections and the Officer thereafter has to pass a speaking order before proceeding with the assessment. In this case, the writ petitioner has not filed the return and on the other hand filed the present writ petition straightaway.
Accordingly, this writ petition is disposed of, by granting liberty to the petitioner to follow the procedures laid down after issuance of Section 148 notice as explained/clarified in GKN Drive Shaft’s case. Accordingly, the petitioner shall file the return, as required in the impugned notice within a period of 15 days from the date of receipt of a copy of this order and ask for the reasons for reopening. No costs. The connected miscellaneous petition is closed.
FULL TEXT OF THE HIGH COURT ORDER / JUDGEMENT
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