SOLY JALEJAR BHESANIA L/H OF LATE MEHER SOLY BHESANIA vs. INCOME TAX OFFICER WARD 1(2)(3)

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SCA/9482/2018HC GujaratGJHC24038547201809 July 2018Author: HONOURABLE MR. JUSTICE M.R. SHAH,HONOURABLE MR. JUSTICE A.Y. KOGJE3 pages
AI SummaryRemanded

What did the High Court hold?

The High Court observed that if a notice dated March 26, 2018, has indeed been issued to the legal heir of the deceased assessee, then the ground on which the present petition was filed may no longer survive. The Court stated that what needs to be considered is the notice issued upon the legal heir. Therefore, the first notice dated March 26, 2018, issued in the name of the deceased assessee is not to be acted upon, and the notice dated March 26, 2018, issued in the name of the legal heir is what should be considered. The Court explicitly stated that it had not expressed any opinion on the merits of the notice issued to the legal heir. The petition was disposed of with this observation.

What were the facts?

The petitioner, Soly Jalejar Bhesania, L/H of late Meher Soly Bhesania, filed a Special Civil Application challenging a Notice dated March 26, 2018, issued under Section 148 of the Income Tax Act, 1961, for Assessment Year 2011-12. The primary ground for the challenge was that the notice was issued in the name of the deceased assessee. The Revenue, represented by the Income Tax Officer Ward 1(2)(3), filed a reply stating that on the same day, another notice dated March 26, 2018, was issued in the name of the legal heir of the deceased assessee, acknowledging and rectifying the initial mistake. The petitioner disputed the issuance of this second notice.

What were the issues?

1. Whether a Notice issued under Section 148 of the Income Tax Act, 1961, in the name of a deceased assessee is invalid, and if so, what is the consequence? (Question of law). The petitioner argued that the notice issued in the name of the deceased assessee is void ab initio, relying on the Gujarat High Court's decision in Rasid Lala v. Income-tax Officer. The Revenue contended that a subsequent notice dated March 26, 2018, was issued in the name of the legal heir, rectifying the error. The petitioner disputed the issuance of this second notice. The Court was to consider the validity of the initial notice and the impact of the alleged subsequent notice.

Which sections of the Income-tax Act were involved?

Section 148

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances
C/SCA/9482/2018 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 9482 of 2018 ========================================================== SOLY JALEJAR BHESANIA L/H OF LATE MEHER SOLY BHESANIA Versus INCOME TAX OFFICER WARD 1(2)(3) ========================================================== Appearance: MR HARDIK V VORA(7123) for the PETITIONER(s) No. 1 MRS KALPANA K RAVAL(1046) for the RESPONDENT(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE M.R. SHAH and HONOURABLE MR.JUSTICE A.Y. KOGJE Date : 09/07/2018

ORAL ORDER (PER : HONOURABLE MR.JUSTICE M.R. SHAH)

1.

By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate Writ, order or direction to quash and set aside the impugned Notice dated 26.03.2018 issued under Section 148 of the Income Tax Act, 1961, for Assessment Year 2011-12, on the ground that the said Notice has been issued in the name of the deceased assessee. Reliance is placed upon the decision of this Court in the case of Rasid Lala v. Income-tax Officer, Ward-1(3)(6) – [2017] 77 taxmann.com 39 (Gujarat). C/SCA/9482/2018 ORDER

2.

In response to the Notice issued by this Court, Mrs.Kalpana K. Raval, learned advocate has appeared on behalf of the respondent-Revenue. An affidavit-in-reply is filed pointing out that on the very day and having realised the mistake, another Notice dated 26.03.2018 itself was issued which was in the name of the legal heir of the deceased assessee. Issuance of Notice upon the legal heir of the deceased assessee on 26.03.2018 is disputed by Shri Hardik V. Vora, learned advocate appearing on behalf of the petitioner.

3.

Be that as it may, when there is already now a Notice dated 26.03.2018 against the legal heir of the deceased assessee, the ground on which the present petition is preferred may not survive as now what is required to be considered is the Notice issued upon the legal heir of the deceased assessee. Meaning thereby, the first notice dated 26.03.2018 which was issued in the name of the deceased assessee is not to be acted upon and what is to be acted upon is the Notice dated 26.03.2018 issued in the name of the legal heir of the deceased assessee.

4.

With this, the present Special Civil Application stands disposed of. However, it is observed and made very C/SCA/9482/2018 ORDER clear that we have not expressed any opinion on merits with respect to the Notice dated 26.03.2018 which has been issued in the name of the legal heir of the deceased assessee. (M.R. SHAH, J) (A.Y. KOGJE, J) sunil

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