Section 148 notice issued to a dead assesse is notice without jurisdiction

Arunaben Kanaiyalal Patel L/R of Late Kanaiyalal Dalsukh Patel Vs ACIT (Gujarat High Court)

The subject matter of challenge in the present writ application is to the notice of reopening issued under Section 148 of the Act for the A.Y. 2017-18, essentially on the ground that the same is without jurisdiction as the impugned notice has been issued to a dead assessee.

The issue raised in the present writ application is no longer res integra in view of the decision of this High Court in the case of Bhupendra Bhikhalal Desai Vs. Income Tax Officer reported in (2021) 320 CTR(Guj.) 289. We are informed that the aforesaid decision of this Court has been affirmed by the Hon’ble Supreme Court with the dismissal of Special Leave Petition filed by the Revenue vide order dated 27.09.2021.

In view of the aforesaid, this writ application succeeds and is hereby allowed.

FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT

1. By this writ application under Article 226 of the Constitution of India, the writ applicant (since deceased) through her legal heir has prayed for the following prayers:

“10.0 The petitioner, therefore, prays that this Hon’ble Court be pleased

(a) to issue a writ of certiorari or in the nature of certiorari or any other appropriate writ, orders or directions quashing and setting aside the impugned notice dated 13.03.2021 [ANNEXURE-A] issued by the Respondent proposing to reopen the completed assessment of the Petitioner for A.Y. 2017-18.

(b) to issue a writ of certiorari or in the nature of certiorari or any other appropriate writ, orders or directions to furnish the copy of reasons recorded for reopening.

(c) To allow the Petitioner to amend the Petition in view of the reasons recorded and order that may be passed, if any, by the Respondent disposing off the objections.

(d) 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 and order.

(e) Pending the hearing and final disposal of this petition to maintain status quo in the matter and ask the Respondent and its subordinates not to take any action or to do anything in furtherance and pursuance of this impugned notice.

(f) To allow this petition with cost.

(g) To pass any further or other orders as the Hon’ble Court may deem proper in the interest of justice and in the circumstances of the case.”

2. The subject matter of challenge in the present writ application is to the notice of reopening issued under Section 148 of the Act for the A.Y. 2017-18, essentially on the ground that the same is without jurisdiction as the impugned notice has been issued to a dead assessee.

3. We have heard Mr. S.N. Divatia, learned advocate appearing for the petitioner and Mr. M.R. Bhatt, learned senior advocate appearing for the Revenue.

4. The issue raised in the present writ application is no longer res integra in view of the decision of this High Court in the case of Bhupendra Bhikhalal Desai Vs. Income Tax Officer reported in (2021) 320 CTR(Guj.) 289. We are informed that the aforesaid decision of this Court has been affirmed by the Hon’ble Supreme Court with the dismissal of Special Leave Petition filed by the Revenue vide order dated 27.09.2021.

5. In view of the aforesaid, this writ application succeeds and is hereby allowed. The impugned notice is hereby quashed and set aside. All consequential proceedings pursuant thereto also stand terminated.