D.Pitchairajan Vs Assistant Commissioner(ST)(FAC) (Madras High Court)
Summary: The Madras High Court considered writ petitions filed by D. Pitchairajan challenging assessment orders dated 22.06.2023 passed by the respondent for the assessment years 2017-18, 2018-19 and 2019-20.
The petitioner stated that his mother, D. Parvatham, was the proprietrix of M/s. Parvathaa Exports and had died on 13.05.2023. Despite her death, the impugned assessment orders dated 22.06.2023 were passed in her name in respect of the relevant assessment years. The petitioner contended that assessment orders passed against a deceased person were a nullity, relying upon the decision of the Hon’ble Supreme Court in Shabina Abraham vs. the Collector of Central Excise and Customs, reported in (2015) 322 ELT 372 (SC). Shabina Abraham & Others Vs Collector of Central Excise
The petitioner further submitted that he was unaware of the assessment orders and came to know about them only after a notice of attachment was issued on 29.02.2024 under Section 79(1)(c) of the TNGST Act, 2017 read with Rule 145(1) of the TNGST Act, 2017 in GST DRC-13. GST Recovery: Law & Procedure for Unpaid Dues, Interest, Penalties, Late Fees
On the merits of the underlying dispute, the petitioner submitted that the dispute arose from mismatches between the regular returns filed in GSTR 01 and the returns filed in GSTR 3B, as well as the information captured in the GSTR 3B return and the auto-populated credit in GSTR 2A. It was submitted that, if an opportunity were granted, the petitioner would be able to explain the discrepancies on merits and produce relevant records to substantiate his position.
The petitioner therefore contended that the assessment orders were nullity and without merits in view of Section 93 of the TNGST Act, 2017. GST Notice to Deceased Person Invalid: Section 93 of CGST Act, 2017
The learned Government Advocate opposed the writ petitions and submitted that they were devoid of merits. It was also submitted that the petitioner had taken over the business carried on in his mother’s name and, therefore, the writ petitions were liable to be dismissed.
The Madras High Court observed that, particularly in the light of Section 93 of the TNGST Act, 2017, it was not open to the petitioner to contend that he could wash away the liability incurred by his mother. However, the Court noted that the impugned orders had been passed after the petitioner’s mother died on 13.05.2023 and that the respondent was unaware of her death when the assessment orders for the respective assessment years were passed. The Court also observed that the petitioner might have a cause to substantiate his case on merits.
Considering these circumstances, the Madras High Court quashed the impugned assessment orders and remitted the matter back to the respondents for passing fresh orders, subject to the petitioner depositing 10% of the disputed tax with the respondent.
Accordingly, the writ petitions were allowed with the above directions. No costs were imposed and the connected miscellaneous petitions were closed.
Cases Discussed:
Shabina Abraham vs. the Collector of Central Excise and Customs — (2015) 322 ELT 372 (SC). Shabina Abraham & Others Vs Collector of Central Excise
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
The petitioner is before this Court in these Writ Petitions against the impugned assessment orders, dated 22.06.2023 passed by the respondent for the assessment years 2017-18, 2018-19 and 2019-20.
2. It is the case of the petitioner that the petitioner’s mother namely, D.Parvatham, was proprietrix of M/s.Parvathaa Exports and that she died on 13.05.2023. However, the impugned orders have been passed on 22.06.2023 in the name of the petitioner’s mother, who was carrying on the business under the name and style of ‘M/s.Parvathaa Exports’ in these assessment years.
3. It is submitted that the assessment orders passed against the person, who died is nullity, as per the decision of the Hon’ble Supreme Court in Shabina Abraham vs. the Collector of Central Excise and Customs reported in (2015) 322 ELT 372 (SC).
4. The learned counsel for the petitioner further submitted that the petitioner was unaware of the assessment orders and came to know about the impugned assessment orders only after the notice of attachment was issued on 29.02.2024 under Section 79(1)(c) of TNGST Act, 2017 read with Rule 145(1) of the TNGST Act, 2017 in GST DRC-13.
5.The learned counsel for the petitioner further submitted that the 4/8 dispute is raised on account of the mismatch between the regular returns filed by the petitioner in GSTR 01 and the returns filed in GSTR 3B and also the information captured in GSTR 3B Return and the Auto-Populated Credit in GSTR 2A. It is submitted by the petitioner that if the respondent gives an opportunity to the petitioner, he will be able to explain the discrepancies on merits, as he may be in possession of the relevant records to substantiate the same.
6. The learned counsel for the petitioner submits that the assessment orders are nullity and without any merits in the light of Section 93 of the TNGST Act, 2017.
7. The learned Government Advocate for the respondent submits that these Writ Petitions are devoid of merits and therefore, liable to be dismissed. That apart, the petitioner has taken over the business that was carrying on in the name of the petitioner’s mother and therefore, these Writ Petitions are liable to be dismissed.
8. Having considered the arguments advanced by the learned counsel for the petitioner and the learned Government Advocate for the respondent, I am of the view that it is not open for the petitioner to state that the petitioner can wash away the liability incurred by the petitioner’s mother, particularly, in the light of Section 93 of the TNGST Act, 2017. However, the facts remain that the impugned orders have been passed after the petitioner’s mother died on 13.05.2023 and thus, the respondent was unaware of the same and proceeded to pass impugned orders for the respective assessment years. The petitioner may have the cause to substantiate it on merits.
9. Considering the same, the impugned orders are quashed and the case is remitted back to the respondents to pass fresh orders, subject to the petitioner depositing 10% of disputed tax to the respondent.
Accordingly, these Writ Petitions are allowed, with above directions. No costs. Consequently, connected miscellaneous petitions are closed.
