VINEETH VARGHESE, vs. THE DEPUTY COMMISSIONER OF INCOME TAX,

WP(C)/1932/2020HC KeralaKLHC01005540202029 January 2020Author: HONOURABLE MR. JUSTICE ALEXANDER THOMAS6 pages

AI SummaryAllowed

What did the High Court hold?

The High Court held that notices and orders issued in the name of a deceased assessee after their death are a nullity and non-est in law. The Court noted that the assessee had died on March 16, 2018, and the impugned notice (Ext.P-5) was issued on September 7, 2018, while the assessment and consequential orders (Exts.P-12, P-13, P-15, P-16) were issued on December 28, 2019. Since the assessee was already deceased at the time of these issuances, the proceedings were deemed to be against a dead party, rendering them invalid. The Court found this position to be elementary and not requiring citation of judicial authority. Consequently, the Court quashed and rescinded the impugned notice and orders. However, the Court granted liberty to the competent authority to proceed against the legal representatives or heirs of the deceased assessee, if permissible in law, after ascertaining their identity and inheritance of the estate.

What were the facts?

The petitioner, Vineeth Varghese, filed a writ petition challenging notices and orders issued by the Income Tax Department. The core contention was that the notices and orders were issued in the name of his deceased father, who had passed away on March 16, 2018, as evidenced by a death certificate. The first notice (Ext.P-5) was dated September 7, 2018, and subsequent assessment, demand, and penalty notices (Exts.P-12, P-13, P-15, P-16) were dated December 28, 2019. The petitioner sought to quash these proceedings, arguing they were illegal, null, and void because they were initiated against a dead person.

What were the issues?

1. Whether notices and assessment orders issued in the name of a deceased assessee, after their death, are legally valid and enforceable? (Question of law turning on principles of natural justice and procedural validity). Assessee's Contention: The petitioner argued that all proceedings initiated against his deceased father, including the notice dated September 7, 2018 (Ext.P-5) and subsequent assessment, demand, and penalty notices dated December 28, 2019 (Exts.P-12, P-13, P-15, P-16), were null and void. This was because the assessee had died on March 16, 2018, prior to the issuance of these notices and orders. The petitioner relied on the death certificate (Ext.P-4) as proof. Revenue's Contention: The judgment records that the Standing Counsel for the Income Tax Department appeared. No specific arguments or contentions were recorded for the revenue in the judgment.

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS WEDNESDAY, THE 29TH DAY OF JANUARY 2020 / 9TH MAGHA, 1941 WP(C).No.1932 OF 2020(N) PETITIONER: VINEETH VARGHESE, AGED 31, S/O. LATE P.A. VARGHESE, APARTMENT NO. 8A, DOOR NO. 61/181 A20, ASSET BELLEVUE APARTMENTS, PALLIMUKKU, ERNAKULAM, PIN-682 016. BY ADVS. SRI.EBIN MATHEW SRI.P.ROHIT PREMANANDAN SHENOY RESPONDENTS: 1 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL PROCESSING CENTRE, INCOME TAX DEPARTMENT, BANGALURU-560 500. 2 INCOME TAX OFFICER, O/O. INCOME TAX OFFICER, WARD 2(3), AAYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, THRISSUR-680 001. 3 INCOME TAX OFFICER, CIRCLE 2(1), THRISSUR, AAYAKAR BHAVAN, SAKTHAN THAMPURAN NAGAR, THRISSUR-680 001. BY SRI.JOSE JOSEPH, STANDING COUNSEL, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ALEXANDER THOMAS, J. ------------------------------------- W.P.(C) No. 1932 of 2020 ------------------------------------- Dated this the 29th day of January, 2020

J U D G M E N T The prayers in the above Writ Petition (Civil) are as follows: “ (a) A Writ of certiorari quashing Ext.P7 notice and Exhibtis P12,P13, P15 and P16 orders/notice dated 28/12/2019 issued by the 3rd respondent. (b) Writ of certiorari quashing Ext.P5 and Ext.P7 notices issued in the name of a dead person and all consequential proceedings, Ext.P7, P12, P13 & P15 and 16 are illegal and null and void. (c) A writ of mandamus or any other appropriate writ, order or direction, directing respondents not to resort to any further proceedings against the petitioner on the basis of Exhibits P12, P13, P15 and P16 order/notice. (d) Such other reliefs as are deemed fit and proper in the facts and the circumstances of the case.”

Heard Sri.Ebin Mathew, learned counsel appearing for the petitioner and Sri.Jose Joseph, learned Standing Counsel for the Income Tax Department, Government of India, appearing for the respondents.

The main contention raised by the petitioner is that the assessee (who is the father of the petitioner) was dead even long prior to the issuance of the first notice as per Ext.P-5, etc. The respondents were directed to furnish instructions regarding the specific plea made by the petitioner that the assessee was already ..3.. dead even as on the date of the first notice as per Ext.P-5, as well as, prior to the issuance of Exts.P-12 to P-16 assessment orders,etc.

After hearing both sides it is seen that the assessee concerned has died on 16.3.2018 as evident from Ext.P-4 statutory death certificate dated 3.4.2018 issued by the statutory Registrar of Births and Deaths, attached to the Thrissur Municipal Corporation, under the provisions of the Registration of Births and Deaths Act. In this regard, it is relevant to note that even the first impugned notice as per Ext.P-5 has been issued on 7.9.2018 and Ext.P-12 Best of Judgment Assessment, and Ext.P-13 notice of demand, Ext.P-15 penalty notice, Ext.P-16 notice has been issued on 28.12.2019. Therefore, even as on the date of the notice as well as the impugned assessment order and the consequential orders, the assessee was dead long prior thereto, and hence the impugned proceedings with a dead party on the array is a nullity, and non-est. Position in that regard is too trite and elementary and does not require citation of any judicial authority in that regard.

Hence it is ordered and declared that the abovesaid impugned proceedings are in nullity, non-est in law.

..4..

In that view of the matter it is ordered that, the impugned Ext.P-5 notice and the consequential Ext.P-12 assessment order, Ext.P-13 demand notice, P-15 penalty notice and Ext.P-16 notice shall stand quashed and rescinded. However, it is made clear that if the competent authority among the respondents are of the considered view that the legal representatives/heirs of the deceased are stated to be proceeded against in the manner known to law, then it is for the said competent authority to ascertain from the competent revenue officials in the State as to who all are the legal representatives/heirs of the deceased assessee, and who among them have inherited any of the estate of the deceased assessee, etc, and then proceed against them, if it is permissible in law. With the said liberty, the above Writ Petition (Civil) will stand disposed of. ALEXANDER THOMAS,

JUDGE MMG ..5..

Appendix — schedule of exhibits

APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1 TRUE PHOTOCOPY OF THE TRACK CONSIGNMENT OF REGISTERED POSTAL ARTICLE NO. RL424072515IN EXHIBIT P2 TRUE PHOTOCOPY OF INCOME TAX RETURN DATED 30.10.2017. EXHIBIT P3 TRUE PHOTOCOPY OF INTIMATION UNDER SECTION 143(1) OF COMPLETION OF ASSESSMENT FROM THE OFFICE OF THE FIRST RESPONDENT DATED 10.11.2017. EXHIBIT P4 TRUE PHOTOCOPY OF THE DEATH CERTIFICATE OF LATE P.A. VARGHESE DATED 3.4.2018. EXHIBIT P5 TRUE PHOTOCOPY OF NOTICE UNDER SECTION 143(2) OF THE INCOME TAX ACT ISSUED BY THE 2ND RESPONDENT DATED 7.9.2018. EXHIBIT P6 TRUE PHOTOCOPY OF THE RESPONSE SUBMITTED BY THE CHARTERED ACCOUNTANT. EXHIBIT P6(A) TRUE COPY OF THE RESPONSE SUBMITTED BY THE CHARTERED ACCOUNTANT. EXHIBIT P6(B) TRUE PHOTOCOPY OF THE RESPONSE SUBMITTED BY THE CHARTERED ACCOUNTANT. EXHIBIT P7 TRUE PHOTOCOPY OF THE NOTICE DATED 28.9.2018 ISSUED UNDER SECTION 143(2) OF THE INCOME TAX ACT BY THE 2ND RESPONDENT. EXHIBIT P8 TRUE PHOTOCOPY OF E PROCEEDINGS RESPONSE ACKNOWLEDGMENT ISSUED TO EXHIBIT P7 NOTICE. W.P.(C) No. 1932 of 2020 ..6.. EXHIBIT P9 TRUE PHOTOCOPY OF NOTICE UNDER SECTION 142(1) OF THE INCOME TAX ACT 1961, DATED 14.11.2019 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P10 TRUE PHOTOCOPY OF LEGAL HEIRSHIP CERTIFICATE DATED 20.10.2018 OF LATE P.A. VARGHESE. EXHIBIT P11 TRUE PHOTOCOPY OF TRACK CONSIGNMENT IN RESPECT OF REGISTERED POSTAL ARTICLE NO. EL 430875057IN. EXHIBIT P12 TRUE PHOTOCOPY OF THE BEST OF JUDGMENT ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, DATED 28.12.2019 PASSED BY THE 3RD RESPONDENT. EXHIBIT P13 TRUE PHOTOCOPY OF NOTICE OF DEMAND DATED 28.12.2019. EXHIBIT P14 TRUE PHOTOCOPY OF CORRIGENDUM NOTICE DATED 28.12.2019 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P15 TRUE PHOTOCOPY OF PENALITY NOTICE UNDER SECTION 270A OF THE INCOME TAX ACT ISSUED BY THE 3RD RESPONDENT. EXHIBIT P16 TRUE PHOTOCOPY OF NOTICE DATED 28.12.2019.

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