Gotru Lakshmi Devi Vs Assistant Commissioner (Andhra Pradesh High Court)
Summary: The Andhra Pradesh High Court allowed Gotru Lakshmi Devi’s writ petition challenging the assessment order dated 20.04.2023 concerning M/s. Mithraya Communications, a proprietary concern of her late father, Gotru Dharmaiah. The petitioner submitted that a contract had been awarded to her father on 09.04.2019, but he died on 18.06.2019 during its execution. Bills relating to the work were subsequently paid in 2020-21, and the authorities relied on those payments to issue a show cause notice and pass the assessment against the deceased proprietor. She stated that her father had managed the business’s financial activities and that she was unaware of the proceedings. The Revenue sought to sustain the assessment and objected to the delay in filing the petition. Considering the death certificate dated 02.07.2019, the Court found that the proprietor had died well before the assessment order and held that an order passed against a dead person has no legal efficacy.
The Court relied on Baratam Satish v. Joint Commissioner of Central Tax, which explained that although Section 93 of the GST Act permits recovery of a deceased person’s dues, assessment must involve the representative or person carrying on the business, or the legal representative holding the estate where the business is discontinued. The quoted precedent also restricted recovery against the legal representative to the deceased’s estate available with that representative. Applying the decision, the Court declared the assessment dated 20.04.2023 invalid, set it aside and revoked all consequential proceedings. It nevertheless permitted the first respondent to issue an appropriate notice to Gotru Lakshmi Devi and proceed with assessment after giving her a due opportunity of hearing. The period from the date of the impugned assessment order until receipt of the Court’s order was directed to be excluded for limitation purposes. No costs were awarded, and pending miscellaneous petitions were closed.
Cases Discussed
- Baratam Satish v. Joint Commissioner of Central Tax, 113 GST 719/105 GSTL 273 (Andhra Pradesh High Court), W.P. No.6029 of 2025 — Relied upon to invalidate the assessment against the deceased proprietor. The reproduced decision required assessment involving the appropriate representative after notice and restricted recovery against the legal representative to the deceased’s estate available with that representative.
FULL TEXT OF THE ORIGINAL JUDGMENT/ORDER GSTAT
Heard learned counsel for the petitioner and Mr. S.A.V. Sai Kumar, learned Assistant Government Pleader for Commercial Tax, representing respondent Nos.1 to 3. With their consent, the writ petition is disposed of at the stage of admission.
2. Aggrieved by the impugned order of assessment dated 20.04.2023 against proprietary concern M/s. Mithraya Communications, the present writ petition is filed.
3. As per the averments made in the affidavit, the father of the deponent was proprietor of the said concern and he expired on 18.06.2019 due to critical illness. Respondent authorities passed impugned assessment dated 20.04.2023 against the proprietor, since the father of the petitioner being proprietor was looking after the financial activities of the business, initiation of proceedings by the respondents was not within the knowledge of the deponent. Be that as it may.
4. Learned counsel for the petitioner submits that petitioner’s father Mr. Gotru Dharmaiah is running proprietary concern by name M/s. Mithraya Communications and on 09.04.2019 a work was awarded, that during the course of execution of the said contract, he died on 18.06.2019. Thereafter bills were paid in the year 2020-21 in respect of the said works and taking the same as basis, the 1st respondent had issued Show-Cause-Notice and passed impugned assessment order against the dead person. Making the said submissions, he seeks to allow the writ petition by setting aside the impugned order. He also placed reliance on the decision of a Co-ordinate Bench.
5. Per contra, learned Assistant Government Pleader sought to sustain the impugned order. He submits that the writ petition is filed with a delay and the same is liable to be dismissed.
6. This Court has considered the submissions made and perused the material on record.
7. Death certificate dated 02.07.2019 (Ex.P.3) indicates that Gotru Dharmaiah purportedly the proprietor died on 18.06.2019, i.e., much prior to passing of the impugned order dated 20.04.2023. It is settled position that any order passed against a dead person does not have legal efficacy.
8. At this stage, it may be appropriate to refer to the relevant portion of decision in Baratam Satish v. Joint Commissioner of Central Tax 113 GST 719/105 GSTL 273 (Andhra Pradesh)/W.P.No.6029 of 2025, which is applicable to the present facts:-
“6. It is settled law that the assessments and other proceedings can only be initiated against the persons who are living and such proceedings against death person would not be valid. However, the fact remains that, under Section 93 of the GST Act, the dues of the death person can be recovered either from the business he had set up or from his estate. In such circumstances, in the absences of any provision, this Court would have to be hold that the only practicable way of settling the affairs of the death person would be to direct the assessment being carried out by involving either the representative or person carrying on the business of a death person or which such business is not being carried on, by involving the legal representative who be holding the estate of the deceased person.
7. In the said circumstances, since the petitioner is the legal representative of the deceased person, being his son, it would be appropriate to set aside the impugned Order, dated 25.01.2024, with a direction to carry out a fresh assessment after involving the petitioner herein, by issuing a notice to the petitioner. Needless to say, any recovery that may be initiated, after an Order of assessment, shall be only against the estate of a deceased person and against the petitioner to the extent of the estate of his deceased father, which is available to the petitioner.”
9. In the light of above said decision and the conclusion arrived at supra, the impugned assessment order dated 20.04.2023 is declared invalid and the same is set-aside.
10. In the result, the writ petition is allowed. However, the 1st respondent is at liberty to issue appropriate notice to the petitioner and proceed with the assessment proceedings after giving due opportunity of hearing to the deponent of the affidavit herein Smt. Gotru Lakshmi Devi.
11. In view of setting aside the impugned assessment order, all consequential proceedings shall stand revoked.
12. Needless to say that the period from the date of passing of the impugned order till the date of receipt of this order shall be excluded for the purpose of limitation.
13. There shall be no order as to costs. Miscellaneous petitions, if any, shall stand closed.
