ARUNABEN KANAIYALAL PATEL L/R OF LATE KANAIYALAL DALSUKH PATEL vs. ASST. COMMISSIONER OF INCOME TAX, CENT. CIRCLE 2(4) OR HIS SUCCESSOR

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SCA/18982/2021HC GujaratGJHC24067529202104 January 2022Bench: HONOURABLE MR. JUSTICE J.B.PARDIWALA,HONOURABLE MS. JUSTICE NISHA M. THAKORE3 pages
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What did the High Court hold?

The High Court held that the issue of a notice under Section 148 of the Income Tax Act, 1961, to a deceased assessee is without jurisdiction. The Court referred to its own decision in Bhupendra Bhikhalal Desai Vs. Income Tax Officer, which was affirmed by the Supreme Court through the dismissal of the Revenue's Special Leave Petition. Consequently, the writ application was allowed, and the impugned notice dated March 13, 2021, along with all consequential proceedings, was quashed and set aside. The ratio decidendi is that a notice issued under Section 148 to a dead assessee is a nullity and cannot be sustained.

What were the facts?

The writ applicant, Arunaben Kanaiyalal Patel (Legal Heir of Late Kanaiyalal Dalsukh Patel), challenged a notice issued under Section 148 of the Income Tax Act, 1961, dated March 13, 2021, for Assessment Year 2017-18. The primary ground for challenge was that the notice was issued without jurisdiction because it was served on a deceased assessee. The petitioner sought to quash the notice and all consequential proceedings. The Revenue was represented by Mr. M.R. Bhatt, learned senior advocate.

What were the issues?

1. Whether a notice of reopening issued under Section 148 of the Income Tax Act, 1961, to a deceased assessee is without jurisdiction and liable to be quashed? (Question of law) Assessee's contention: The notice of reopening is invalid as it was issued to a dead person, rendering it without jurisdiction. The assessee relied on the High Court's decision in Bhupendra Bhikhalal Desai Vs. Income Tax Officer. Revenue's contention: The judgment does not record any specific contentions made by the Revenue on this issue.

Which sections of the Income-tax Act were involved?

Section 148

AI-generated summary — verify with the full judgment below

C/SCA/18982/2021 ORDER DATED: 04/01/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 18982 of 2021 ========================================================== ARUNABEN KANAIYALAL PATEL L/R OF LATE KANAIYALAL DALSUKH PATEL Versus ASST. COMMISSIONER OF INCOME TAX, CENT. CIRCLE 2(4) OR HIS SUCCESSOR ========================================================== MR SN DIVATIA(1378) for the Petitioner(s) No. 1 MR MR BHATT WITH MR KARAN SANGHANI FOR M R BHATT & CO.(5953) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MS. JUSTICE NISHA M. THAKORE

Date : 04/01/2022

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA) 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 Page 1 of 3

C/SCA/18982/2021 ORDER DATED: 04/01/2022 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 Page 2 of 3

C/SCA/18982/2021 ORDER DATED: 04/01/2022 aside. All consequential proceedings pursuant thereto also stand terminated. (J. B. PARDIWALA, J) (NISHA M. THAKORE,J) Y.N. VYAS Page 3 of 3

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