Late Smt. Shakuntala Thakur Through L/H Shri Santosh Singh Thakur vs. Income Tax Officer Shajapur

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WP/8100/2022HC Madhya Pradesh27 February 2024Bench: HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI5 pages
For Petitioner: Ashish GoyalFor Respondent: Veena Mandlik
AI SummaryRemanded

What did the High Court hold?

The High Court held that the stage of the show cause notice under Section 148 of the Income Tax Act, 1961, had already passed, and subsequent assessment proceedings had taken place, culminating in a final assessment order. The Court noted that the petitioner had not informed the department about the death of the original assessee along with the death certificate. The Court emphasized that when a statutory forum is created for redressal of grievances, a writ petition cannot normally be entertained, bypassing such a statutory remedy. In this case, the proceedings under Section 148 had attained finality with the assessment order. Therefore, it was inappropriate for the High Court to intervene by bypassing the efficacious statutory alternative remedy available to the petitioner under Section 246 of the Act. The petition was disposed of with liberty to the petitioner to pursue the statutory appeal, and the period spent in prosecuting the writ petition was directed not to be counted for calculating any delay in filing the appeal.

What were the facts?

The petitioner, through their legal heir, challenged a notice dated March 30, 2021, issued under Section 148 of the Income Tax Act, 1961, for reopening the assessment of the deceased assessee, Late Smt. Shakuntala Thakur, for Assessment Year 2016-17. The notice was issued on April 1, 2021, after the assessee's death on January 18, 2017. A final assessment order dated March 30, 2022, was passed, demanding Rs. 84,19,415/- based on an assessed income of Rs. 2,23,21,390/-. The petitioner argued the notice was illegal and without jurisdiction as it was issued to a dead person. The respondents contended the petitioner failed to inform the department of the death and that the petitioner had filed returns in the deceased's name post-demise. They also argued that the final assessment order was appealable under Section 246 of the Act.

What were the issues?

1. Whether a notice for reopening assessment under Section 148 of the Income Tax Act, 1961, can be validly issued in the name of a deceased assessee, especially when the authority issuing the notice was aware of the death. (Question of law and fact, concerning Section 148). Assessee's contention: The notice under Section 148A(b) and subsequently Section 148 of the Act could not have been issued as the original assessee had died in 2017, and this fact was known to the respondents. Issuing such a notice to a dead person is illegal, without jurisdiction, and void, relying on the High Court's decision in *Shri Kirankant Shah Vs. Income Tax Officer & Another*. Revenue's contention: The petitioner did not inform the department about the assessee's death in a timely manner and did not produce the death certificate. The petitioner filed returns in the name of the deceased even after her death. The petitioner had participated in the Section 148 proceedings by filing a reply, and a final assessment order has been passed. Therefore, challenging the show cause notice at this stage is inappropriate. Furthermore, the final assessment order is appealable under Section 246 of the Act, and the petitioner ought to have availed that remedy instead of filing a writ petition, relying on *Neeraj Mandloi Vs. Assistant Commissioner of Income Tax & Anr.*

Which sections of the Income-tax Act were involved?

Section 148,Section 148A,Section 246

AI-generated summary — verify with the full judgment below

Before: HONBLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI & HONBLE SHRI JUSTICE HIRDESH AND

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI & HON'BLE SHRI JUSTICE HIRDESH ON THE 27th OF FEBRUARY, 2024 WRIT PETITION No. 8100 of 2022 BETWEEN:- LATE SMT. SHAKUNTALA THAKUR THROUGH L/H SHRI SANTOSH SINGH THAKUR S/O SHIVSINGH THAKUR, AGED ABOUT 49 YEARS, OCCUPATION: BUSINESS NEAR RADHA PETROL PUMP, A.B. ROAD, SHAJAPUR (MADHYA PRADESH) .....PETITIONER (SHRI ASHISH GOYAL, LEARNED COUNSEL FOR THE PETITIONER) AND 1. INCOME TAX OFFICER SHAJAPUR INCOME TAX OFFICER INCOME TAX OFFICE, DHOBI CHOURAHA, GANGA MARKET, SHAJAPUR (MADHYA PRADESH) 2. JOINT COMMISSIONER INCOME TAX INCOME TAX R1, UJJAIN 127, DEWAAS RD. NEAR LIC OFFICE, BHARATPURI, UJJAIN (MADHYA PRADESH) 3. UNION OF INDIA, THR. THE SECRETARY, MINISTRY OF FINANCE GOVERNMENT OF INDIA. MINISTRY OF FINANCE GOVERNMENT OF INDIA. NORTH BLOCK NEW DELHI (DELHI) .....RESPONDENTS (MS VEENA MANDLIK, LEARNED COUNSEL FOR THE RESPONDENT)

This petition coming on for order this day, Justice Sushrut Arvind Dharmadhikari passed the following: 1 Signed by: SEHAR HASEEN Signing time: 29-02-2024 10:25:27 Signature Not Verified ORDER Heard, finally with the consent of both the parties. The present petition under Article 226 of the Constitution of India challenges the notice dated 30.03.2021 issued in case No. ITBA/AST/S/148/2021-21/1031903099(1) u/S 148 of the Income Tax Act, 1961(referred to as 'the Act of 1961" hereinafter) seeking re-opening of assessment for the assessment year 2016-17 being illegal, without jurisdiction, arbitrary and in violation of principles of natural justice. 2 . Brief facts of the case are that the present petition has been filed through Shivsingh Thakur S/O Late Smt. Shakuntala Thaku who had died on 18.01.2017. After her death, notice u/S 148 of the Act of 1961 dated 30.03.2021 was issued on 01.04.2021 whereby the assessement has been reopened u/S 148 of Act of 1961. The final assessment order dated 30.03.2022 was passed and the assessed income of Rs. 2,23,21,390/- was notified. As a result of such assessment, Rs. 84,19,415/- was demanded from the petitioner. Hence, the present petition is filed. 3. Learned counsel for the petitioner contended that respondents could not have issued notice u/S 148A(b) of the Act since Late Smt. Shakuntala Thakur had died in the year 2017 itself. The said factum of death was very well known to the respondents, therefore, the notice u/S 148 of the Act of 1961 has been issued in the name of legal heirs of Smt. Shakuntala Devi. It is further submitted that an essential condition to issue notice u/S 148 of the Act of 1961 is that the notice must be issued to the person who is alive and the same cannot be issued to a dead person. Learned counsel for the petitioner has placed reliance on the order passed by this Court in the case of Shri Kirankant Shah Vs. Income Tax Officer & Another in W.P. No. 10206/2023 wherein this 2 Signed by: SEHAR HASEEN Signing time: 29-02-2024 10:25:27 Signature Not Verified Court has set aside the notice u/S 148A(b) issued on the ground that reopening notice cannot be issued in the name of a dead assessee and the same is null and void being without jurisdiction. 4. On the other hand, learned counsel for the respondents opposed the petition and vehemently argued that the petitioner did not inform the department in time that the original assessee had died and also did not produce her death certificate. The petitioner had filed return in the name of Late Smt. Shakuntala Thakur even after her death. However, it was the sole responsibility of the petitioner to inform about death of the original assessee. The petitioner has filed reply to Sec 148 proceedings before the Assessment Officer. Thereafter, final assessment order has already been passed. Therefore, now at this stage, challenging the show cause notice is inappropriate. 5 . Learned counsel for the respondents further submitted that even otherwise, final assessment order is appealable u/S 246 of the Act of 1961 and the petitioner ought to have availed the said remedy instead of filing the present petition. In support of her contention, learned counsel has relied upon the judgment passed by co-ordinate Bench of this Court in the case of Neeraj Mandloi Vs. Assistant Commissioner of Income Tax & Anr. reported in (2017) 293 CRT Reports 245 , wherein it has been held as under: "In the assessment order, detailed analysis of various aspects of the matter has been done and the assessment has been completed, that being so, at this stage when the assessment is already over after notice u/S 148 was issued and when proceedings under s. 147 have attained finality in view of the assessment order, it is not appropriate for this Court to go into various aspects of the 3 Signed by: SEHAR HASEEN Signing time: 29-02-2024 10:25:27 Signature Not Verified matter and entertain the writ petition, merely because in some other case, the writ petition is pending consideration. " 6. In view of the facts and circumstances of the present case as well as in the light of the judgment passed in the case of Neeraj Mandloi(supra), the present petition is liable to be dismissed. 7. Heard, learned counsel for the parties and perused the record. 8. It is not in dispute that the stage of show cause notice u/S 148 of the Act of 1961 is already over. Thereafter, much water has flowed as assessment proceedings have taken place and final assessment order has been passed. Admittedly, the petitioner did not inform regarding death of the original assessee alongwith death certificate to the department. When a statutory forum is created for redressal of grievance, normally writ petition cannot be entertained ignoring such statutory dispensation. In exceptional circumstances, there are deviation to the aforesaid rule, but in this case, the proceedings u/S 148 had attained finality. Now, at this stage, petitioner has an efficacious statutory alternative remedy to challenge the same u/S 246 of the Act of 1961. Therefore, it is inappropriate for this Court to take indulgence in the matter by-passing the statutory remedy available. 9. Accordingly, the present petition is disposed off with liberty to the petitioner to take recourse to statutory remedy of appeal available for challenging the assessment order. However, the period spent by the petitioner in prosecuting this petition shall not come in way while calculating the delay in filing the appeal. 10. With the aforesaid liberty, petition stands disposed off. No order as to cost. 4 Signed by: SEHAR HASEEN Signing time: 29-02-2024 10:25:27 Signature Not Verified (S. A. DHARMADHIKARI) JUDGE (HIRDESH) JUDGE sh

5 Signed by: SEHAR HASEEN Signing time: 29-02-2024 10:25:27 Signature Not Verified

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