Bombay High Court

Bombay High Court: The Division Bench of K.R. Shriram and N.J. Jamdar, JJ., reiterated that notice under Section 148 of the Income Tax Act, 1961 to a dead person cannot be issued.

In the present matter, the petitioner was the legal heir of Khimji Karamshi Patel, who died on or about 2-3-2021. The death of the assessee Khimji Karamshi Patel was communicated to the respondent.

Yet, the respondent had issued a notice under Section 148 of the Income Tax Act, 1961 dated 30-6-2021 for A.Y. 2103-15 stating that there were reasons to believe that Khimji Karamshi Patel’s income chargeable to tax for A.Y. 2014-15 had escaped assessment.

In another petition, an identical notice had been issued for A.Y. 2013-14. With the present decision, both the petitions are disposed of.

The crux in the matter was the petitioner’s challenge to the notice itself.

Petitioner impugned the said notice on the grounds that notice issued in the name of dead person for assessment was null and void along with this, the notice having been issued on 30-6-2021 had been issued without following mandatory provisions of law that came into force on 1-4-2021.

This Court in Sumit Balkrishna Gupta v. Assistant Commissioner of Income Tax, Circle 16(2), Mumbai; [2019] 103 188 (Bombay) held that notice issued in the name of a dead person for re-opening of assessment is null and void in law.

Many other Judgments including one of the Gujarat High Court in case of Bhupendra Bhikhalal Desai v. ITO Ward 1 (2)(10, [2021] 131 40 (SC), where also the Court held that notice issued to a dead person is not valid. The said decision was also upheld by the Supreme Court in Income Tax Officer v. Bhupendra Bhikhalal Desai, [2021] 131 40 (SC).

Hence, the Court while quashing the notice as not maintainable having been issued to a dead person, did not consider the other aspect as to whether the respondent was correct in issuing notice without following the mandatory provisions of law. [Raniben Khimji Patel v. Asst. Commr. Of Income Tax, 2022 SCC OnLine Bom 342, decided on 15-2-2022]

Advocates before the Court:

Mr. Dharan V. Gandhi for Petitioner.

Mr. Suresh Kumar for Respondents.

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