Case Note & Summary
The petitioner, Kiran Toraskar, as legal heir of Prakash Tatoba Toraskar, challenged reassessment notices issued under Section 148 of the Income Tax Act, 1961 dated 30 June 2021 and 20 June 2022, and an order under Section 148A(d) dated 30 June 2022. The primary ground was that the reassessment proceedings were initiated against a dead person, as Prakash Tatoba Toraskar had expired on 4 November 2019, well before the issuance of the first notice. The respondents initially issued a notice under Section 148 on 30 June 2021 in the name of the deceased. This notice was not challenged. Subsequently, following the Supreme Court's judgment in Union of India v. Ashish Agarwal, the respondents treated the earlier notice as a notice under Section 148A(b) and issued a communication dated 20 May 2022 to the deceased, seeking a reply. The legal heir responded, informing the assessing officer of the death and furnishing a death certificate. Despite this, the respondents passed an order under Section 148A(d) on 30 June 2022 and issued a fresh notice under Section 148 on 20 June 2022, still in the name of the deceased. The court considered whether such proceedings could be sustained. The court held that the initial notice under Section 148 issued to a dead person is void ab initio and cannot be cured by any subsequent proceedings under Section 148A. The court emphasized that a notice to a dead person is a nullity and the legal representative cannot be substituted without proper notice under Section 159 of the Act. Consequently, the court quashed the impugned notices and order, allowing the writ petition.
Headnote
A) Income Tax - Reassessment - Notice to Dead Person - Section 148, 148A Income Tax Act, 1961 - Reassessment proceedings initiated against a deceased person are void ab initio - The court held that a notice under Section 148 issued in the name of a person who had died prior to the issuance is invalid and cannot be validated by subsequent proceedings under Section 148A, as the initial notice itself is a nullity (Paras 1-5).
B) Income Tax - Legal Heir - Substitution - Section 159 Income Tax Act, 1961 - Liability of legal representative - The court noted that under Section 159, a legal representative can be made liable only if proper notice is issued to them, not by addressing notices to the deceased (Para 5).
Issue of Consideration
Whether reassessment proceedings initiated under Section 148 of the Income Tax Act, 1961 against a person who had already expired are valid and can be cured by subsequent proceedings under Section 148A?
Final Decision
The court allowed the writ petition and quashed the impugned notices under Section 148 dated 30 June 2021 and 20 June 2022 and the order under Section 148A(d) dated 30 June 2022.
Law Points
- Reassessment proceedings against dead person are void ab initio
- Notice under Section 148 issued to deceased is invalid
- Subsequent proceedings under Section 148A cannot cure initial defect
- Legal heir cannot be substituted without proper notice
Case Details
2023 LawText (BOM) (01) 70
WRIT PETITION NO.4871 OF 2022
DHIRAJ SINGH THAKUR, KAMAL KHATA
Mr. Yahya Ghoghari a/w Mr. Mustafa Shabbir Shamim i/b Shamaim & Co. for the Petitioner, Mr. Suresh Kumar for the Respondents
Prakash Tatoba Toraskar Through Legal Heir Kiran Toraskar
The Income-tax Officer 24(3)(1), Mumbai; Principal Commissioner of Income Tax-20, Mumbai; National Faceless Assessment Centre, Delhi; The Union of India
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Nature of Litigation
Writ petition challenging reassessment notices and order under Income Tax Act, 1961 on ground that proceedings were initiated against a dead person.
Remedy Sought
Quashing of notices under Section 148 dated 30 June 2021 and 20 June 2022 and order under Section 148A(d) dated 30 June 2022.
Filing Reason
Reassessment proceedings were initiated against Prakash Tatoba Toraskar who had expired on 4 November 2019, prior to issuance of notices.
Issues
Whether reassessment proceedings initiated under Section 148 of the Income Tax Act, 1961 against a deceased person are valid?
Whether subsequent proceedings under Section 148A can cure the defect of notice issued to a dead person?
Submissions/Arguments
Petitioner argued that the notices were issued in the name of a deceased person and are therefore void ab initio.
Respondents argued that the proceedings were in compliance with the Supreme Court judgment in Ashish Agarwal and that the legal heir had participated.
Ratio Decidendi
Reassessment proceedings initiated against a dead person are void ab initio. A notice under Section 148 issued to a deceased assessee is a nullity and cannot be cured by subsequent proceedings under Section 148A. The legal representative can only be proceeded against under Section 159 with proper notice.
Judgment Excerpts
The Petitioner challenges notices issued under Section 148 of the Income Tax Act, 1961 dated 30 June 2021 and 20 June 2022 and the Order under Section 148A(d) dated 30 June 2022 on the ground that the re-assessment proceedings have been initiated against a dead person.
It is stated that the Respondents have issued a notice under Section 148 dated 30 June 2021, in the name of the father of the Petitioner, namely, Prakash Tatoba Toraskar, who had already expired on 4 November 2019.
Procedural History
The Income Tax Officer issued notice under Section 148 on 30 June 2021 to Prakash Tatoba Toraskar, who had died on 4 November 2019. The notice was not challenged. Following the Supreme Court judgment in Union of India v. Ashish Agarwal, the respondents treated the notice as a notice under Section 148A(b) and issued a communication on 20 May 2022 to the deceased. The legal heir responded with death certificate. The respondents passed order under Section 148A(d) on 30 June 2022 and issued fresh notice under Section 148 on 20 June 2022, still in name of deceased. The legal heir filed writ petition challenging these notices and order.
Acts & Sections
- Income Tax Act, 1961: 148, 148A, 148A(b), 148A(d), 159
