ASWIN ASHRA vs. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 37 AND ORS

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WPA/6461/2022HC CalcuttaWBCHCA013575202220 April 2022Author: HON'BLE JUSTICE MD. NIZAMUDDIN3 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that the initiation of proceedings under Section 147 and the issuance of the notice under Section 148 of the Income Tax Act, 1961, against a deceased person are not sustainable in law. The Court noted that the petitioner had brought the fact of the noticee's death to the assessing officer's attention with supporting documentation. The revenue's representative could not deny this crucial fact. Consequently, the Court quashed the impugned notice dated March 30, 2021, issued under Section 148, and all subsequent proceedings based on that notice. The Court clarified that this quashing would not preclude the assessing officer from initiating fresh proceedings in accordance with the law. The ratio decidendi is that tax proceedings cannot be initiated or continued against a deceased individual, and any such action is void ab initio.

What were the facts?

The petitioner, Mr. Aswin Ashra, challenged a notice dated March 30, 2021, issued under Section 148 of the Income Tax Act, 1961, and subsequent proceedings for assessment year 2015-16. The primary ground for challenge was that the proceedings were initiated against a deceased person, who had passed away on July 20, 2017. The petitioner provided a death certificate to the assessing officer on March 30, 2021, along with a letter informing them of the death. Despite this, the assessing officer proceeded to pass an assessment order. The revenue, represented by Ms. Smita Das De, acknowledged that the fact of death was brought to the authority's notice after the Section 148 notice was issued but could not deny that proceedings were initiated against a deceased individual.

What were the issues?

1. Whether the initiation of proceedings under Section 147 and the issuance of a notice under Section 148 of the Income Tax Act, 1961, are legally sustainable when initiated against a deceased person for the assessment year 2015-16? Assessee's Contention: The petitioner argued that the proceedings and the notice under Section 148 are bad in law and unsustainable because they were initiated against a person who had already died on July 20, 2017. The petitioner relied on the death certificate annexed to the writ petition and the letter dated March 30, 2021, informing the assessing officer of the death. The petitioner contended that despite being notified of the death, the assessing officer proceeded to pass an assessment order. Revenue's Contention: The revenue, through its advocate, conceded that the fact of the noticee's death was brought to the concerned authority's notice after the issuance of the Section 148 notice. The revenue's advocate could not deny that the proceedings under Section 147 were initiated against a deceased person and acknowledged that it is settled law that no proceedings can be initiated against a dead person.

Which sections of the Income-tax Act were involved?

Section 148,Section 147

AI-generated summary — verify with the full judgment below

20-04-2022 Item No.28 Subrata IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction Appellate Side WPA No.6461 of 2022 Mr. Aswin Ashra -vs- The Assistant Commissioner of Income Tax, Circle 37, Kolkata & Ors. Mr. Avra Mazumder Mr. Binayak Gupta …for the petitioner Ms. Smita Das De …for the respondents Heard learned advocates appearing for the respective parties. Petitioner in this writ petition has challenged the impugned notice dated March 30, 2021 under section 148 of the Income Tax Act, 1961 relating to the assessment year 2015-16 (Annexure P3, p.25) and subsequent proceedings on the basis of the aforesaid impugned notice on the grounds that the initiation of impugned proceeding under section 147 of the 1961 Act and issuance of notice under section 148 of the Act are bad and not sustainable in law, since the same have been initiated against a dead person who has expired on July 20, 2017 and the death certificate in this regard has been annexed to the writ petition which appears at page 24. Petitioner submits that in spite of bringing to the notice of the assessing officer about the fact of the death of the noticee by his letter dated March 30, 2021 along with a copy of the death certificate, the assessing officer has proceeded and passed the impugned assessment order.

2 Ms Das De, learned advocate appearing for the respondents, submits that the fact of death of the noticee was brought to the notice of the authority concerned after issuance of the notice under section 148 of the Act, but she could not deny the fact that the impugned proceeding under section 147 of the Act has been initiated against a deceased person and that it is a settled law that no proceeding can be initiated against a dead person. Considering the facts and circumstances of this case and what appears from record, this writ petition being WPA No.6461 of 2022 is disposed of by quashing the impugned notice under section 148 of the Income Tax Act, 1961 dated March 30, 2021 and all subsequent proceedings on the basis of the impugned notice under section 148 of the Act. However, quashing of the impugned notice and the proceedings will not prevent the assessing officer concerned from initiating any fresh proceedings in accordance with law. [Md. Nizamuddin, J]

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