SANDHYA ROY AND ANR vs. THE ASSISTANT COMM. OF INCOME TAX CIRCLE 46 AND ORS

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WPA/21170/2021HC CalcuttaWBCHCA040592202125 January 2022Bench: HON'BLE JUSTICE MD. NIZAMUDDIN2 pages
AI SummaryRemanded

What did the High Court hold?

The Tribunal disposed of the writ petition by directing the respondent Assessing Officer to consider and dispose of the petitioners' representation dated October 7, 2021. This representation requested the withdrawal of the impugned notice and dropping of the proceedings under Section 147 of the Act. The Assessing Officer was directed to take into consideration the fact of the assessee's death in accordance with law. A reasoned and speaking order was to be passed after providing an opportunity of hearing to the petitioners. The Assessing Officer was permitted to proceed further only after the disposal of the representation. The Tribunal did not decide the merits of the challenge to the notices but directed a procedural disposal of the representation based on the stated facts.

What were the facts?

The petitioners, Sandhya Roy & Anr., challenged a notice dated March 31, 2021, and subsequent notices issued under Section 148 of the Income Tax Act, 1961. The primary ground for challenge was that these notices were issued against Mr. Susil Kumar Roy, who had passed away on December 25, 2015, prior to the issuance of the notices. The revenue contended that the petitioners brought the death of the noticee to the department's attention belatedly and deliberately allowed the proceedings to continue. The writ petition was filed seeking withdrawal of the impugned notice and dropping of the proceedings.

What were the issues?

1. Whether notices issued under Section 148 of the Income Tax Act, 1961, are valid when the assessee had expired prior to the issuance of such notices? (Question of law) The petitioners argued that no notice or proceeding can be initiated against a deceased person, especially when the death occurred before the notice was issued. They relied on the legal position that proceedings cannot be continued against a dead individual. The revenue contended that the petitioners were aware of the death of the noticee but brought it to the department's attention belatedly, thereby allowing the revenue authority to proceed. The revenue's argument implies that the delay in reporting the death might have some bearing on the validity or the petitioners' right to challenge the notices.

Which sections of the Income-tax Act were involved?

Section 148,Section 147

AI-generated summary — verify with the full judgment below

25.01.2022. p.b. Sl. No.22. W.P.A. 21170 of 2021 (Through Video Conference) Sandhya Roy & Anr. Vs. The Assistant Commissioner of Income Tax & Ors. Ms. Sutapa Roy Chowdhury. ……..for the petitioners. Mr. Tilak Mitra. ………for the respondent. Heard learned advocates appearing for the parties. In this matter, petitioner has challenged the impugned notice dated 31st March, 2021 and subsequent notices on the basis of the aforesaid impugned notice under Section 148 of the Act on the ground that the same has been issued against Mr. Susil Kumar Roy who is a dead person expired on 25th December, 2015. Learned advocate appearing for the revenue respondents submits that the petitioners have brought to the notice of the department about the death of the noticee much belatedly and deliberately allowed the revenue authority to proceed in the matter. Whatever may be the situation and even assuming that the petitioners have brought to notice of the death of the noticee much belatedly but the legal position is that no notice can be issued or any proceeding can be initiated against a dead

2 person and more so, when the noticee has expired prior to the issuance of notice. Considering the submission of the parties, this writ petition being WPA No.21170 of 2021 is disposed of by directing the respondent Assessing Officer concerned to consider and dispose of the representation of the petitioners dated 7th October, 2021 at page 58 of the writ petition requesting the Assessing Officer concerned to withdraw the impugned notice and drop the impugned proceeding under Section 147 of the Act by taking into consideration the fact of death of the assessee in accordance with law and by passing a reasoned and speaking order and after giving an opportunity of hearing to the petitioners or its authorised representatives within four weeks from the date of communication of the order. The respondents Assessing Officer concerned can proceed in the matter only after disposal of the representation of the petitioners dated 7th October, 2021 in accordance with law. Since the writ petition is disposed of without calling for affidavits from the respondents, the allegations contained in the writ petition shall be deemed to have been denied by the respondents. (Md. Nizamuddin, J.)

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