ESTATE OF THE DECEASED BACHAPPA VENKATESH vs. ASSESSING OFFICER

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WP/325/2024HC KarnatakaKAHC01068170202308 August 2024Bench: S.R.KRISHNA KUMAR6 pages
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What did the High Court hold?

The High Court held that the assessment order dated 06.03.2023 and the penalty order dated 25.09.2023, both passed for Assessment Year 2018-19, were indeed void ab initio and non est. The Court noted that the death certificate clearly indicated the assessee, Sri. B. Venkatesh, had expired prior to the passing of these orders. Consequently, the orders passed against a dead person were a nullity and deserved to be set aside. The Court allowed the petition, quashed the impugned assessment and penalty orders, and remitted the matter back to the Assessing Officer (Respondent No.1) for reconsideration. The Assessing Officer was directed to notify the petitioners and respondents 4 and 5, provide them with a reasonable opportunity of hearing, and pass appropriate orders in accordance with law. Liberty was granted to the petitioners and respondents 4 and 5 to file their replies and documents.

What were the facts?

The petitioners, legal heirs of the deceased assessee Sri. B. Venkatesh, challenged ex-parte assessment and penalty orders for Assessment Year 2018-19. The Assessing Officer (R1) issued a notice under Section 147 of the Income Tax Act, 1961, to Sri. B. Venkatesh, who filed a return on 29.04.2022. However, the assessee passed away on 15.02.2023, before the assessment order was passed. The Revenue proceeded to pass an assessment order dated 06.03.2023 and a penalty order dated 25.09.2023, both ex-parte, against the deceased assessee. The petitioners contended these orders were void ab initio as they were passed against a dead person. The petition sought to quash these orders and direct the Assessing Officer to pass a preliminary order under Section 148A after affording a hearing.

What were the issues?

1. Whether the ex-parte assessment order dated 06.03.2023 and the ex-parte penalty order dated 25.09.2023, passed for Assessment Year 2018-19, are void ab initio and non est, as they were passed against a deceased assessee, thereby violating principles of natural justice and statutory provisions concerning assessment proceedings, specifically concerning the initiation of proceedings under Section 147/148 and the requirement for a preliminary order under Section 148A of the Income Tax Act, 1961. Assessee's Contentions: The petitioners argued that the assessment and penalty orders were nullities because they were passed against a dead person, citing the death certificate as proof. They contended that such orders are void ab initio and non est, and that the Assessing Officer failed to follow the mandatory procedure under Section 148A by not affording an opportunity of hearing to the legal heirs before initiating reassessment proceedings. Revenue's Contentions: The judgment does not record specific contentions from the Revenue regarding the validity of the orders passed against a deceased person. However, their participation in the proceedings implies a defense of the orders passed.

Which sections of the Income-tax Act were involved?

Section 147,Section 148,Section 148A

AI-generated summary — verify with the full judgment below

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NC: 2024:KHC:31780 WP No. 325 of 2024

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 325 OF 2024 (T-IT) BETWEEN:

1.

ESTATE OF THE DECEASED BACHAPPA VENKATESH REP BY HIS LRS

SMT MUNIRATHNAMMA W/O LATE B VENKATESH AGED ABOUT 64 YEARS

2.

SRI AMARESH V S/O LATE B VENKATESH AGED ABOUT 45 YEARS

PETITIONER NOS.1 AND 2 ARE R/A NO.88, SRIRAMPURA JAKKUR POST BANGALORE-560064

3.

SMT BHANUKUMARI V D/O LATE B VENKATESH W/O SRINIVAS B K AGED ABOUT 42 YEARS R/A NO.249, 2ND ROSS CAMBRIDGE LAYOUT BANGALORE-560008 …PETITIONERS (BY SRI. ARAVIND V CHAVAN., ADVOCATE)

Digitally signed by ANAND N Location: HIGH COURT OF KARNATAKA

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NC: 2024:KHC:31780 WP No. 325 of 2024

AND:

1.

ASSESSING OFFICER NATIONAL FACELESS ASSESSMENT CENTRE NO.412-413, IST FLOOR OPP.METRO PILLAR NO.793 DWARAKA MOR, NEW DELHI-110059

2.

INCOME TAX OFFICER WARD-6(3)(1), BMTC BUILDING 80 FEET ROAD, KORAMANGALA BENGALURU-560095

3.

PRINCIPAL COMMISSIONER OF INCOME TAX-6 BMTC BUILDING 80 FEET ROAD KORAMANGALA BENGALURU-560095

4.

SRI PRASHANTH KUMAR V S/O B VENKATESH AGED ABOUT 41 YEARS R/A NO.88, SRIRAMPURA JAKKUR POST, BANGALORE-560064

5.

STM REKHA V D/O LATE B VENKATESH W/O ABHISHEK M THALAGUVARA AGED ABOUT 38 YEARS R/A NO.6 AND 7 G, 3RD FLOOR, IST MAIN ROAD VINAYAKA LAYOUT PUTTENAHALLI, YELACHANKA BANGALORE-560064 …RESPONDENTS (BY SRI. E.I.SANMATHI, ADVOCATE FOR R1 TO R3; SRI. R.B.SADASIVAPPA, ADVOCATE FOR R4 AND R5)

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NC: 2024:KHC:31780 WP No. 325 of 2024

THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE EXPARTE PENALTY ORDER DTD 25.09.2023 BEARING NO.ITBA/PNL/F/271AAC(1)/2023-24/1056487275(1) ANNEXURE- E4 AND EXPARTE ASSESSMENT ORDER DTD 06.03.2023 BEARING NO.ITBA/AST/S/147/2022-23/1050463780(1) ANNEXURE-D BOTH ORDERS PASSED BY R1 FOR ASSESSMENT YEAR 2018-19; DIRECT THE ASSESSING OFFICER TO PASS PRELIMINARY ORDER U/S 148A OF THE IT ACT AFTER AFFORDING PETITIONERS OPPORTUNITY OF HEARING FOR ACQUIRING JURISDICTION BEFORE INITIATING PROCEEDINGS U/S 147/148 OF THE IT ACT.

THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR

ORAL ORDER

In this petition, the petitioners seek the following reliefs: "a. Issue a Writ of certiorari to quash the exparte penalty order dated 25.09.2023 bearing No.ITBA/PNL/F/271AAC(1)/2023-24/1056487275(1) Annexure-E4 and exparte assessment order dated 06.03.2023 bearing No.ITBA/AST/S/147/2022- 23/1050463780(1) Annexure-D both orders passed by first respondent for Assessment year 2018-19. b. Issue a writ of mandamus directing the Assessing Officer to pass preliminary order u/s. 148A of the IT Act after affording petitioner's opportunity of hearing for acquiring jurisdiction before initiating proceedings u/s. 147/148 of the IT Act."

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NC: 2024:KHC:31780 WP No. 325 of 2024

2.

Heard the learned counsels for the parties and perused the material on record. 3. A perusal of the material on record will indicate that once Sri. B. Venkatesh was the assessee and in relation to the assessment year 2018-19, notice under Section 147 of the Income Tax Act, 1961 [for short, 'the I.T. Act'] was issued by the respondent Nos.1 to 3 - the Revenue calling upon the said assessee to file his income tax returns. In response thereto, the aforesaid assessee - Sri. B. Venkatesh filed his returns on 29.04.2022. However, before an assessment order was passed, the aforesaid assessee - Sri. B. Venkatesh expired on 15.02.2023 leaving behind his wife - Smt. Munirathnamma, son - Amaresh, daughter - Smt. Bhanukumari V [the petitioners], son - Sri. Prashanth Kumar V - the respondent No.4, and Smt. Rekha V. - the respondent No.5 to succeed to his estate as his heirs/legal representatives. However, the respondent Nos.1 to 3 - the Revenue proceeded on the premise that the aforesaid Sri. B. Venkatesh was still alive, and passed an ex parte assessment order dated 06.03.2023, which was followed by an ex parte penalty order dated 25.09.2023, both of which are assailed on the ground

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NC: 2024:KHC:31780 WP No. 325 of 2024

that the same are non est, nullity and void ab initio since the same were passed against a dead person. As such, the respondents are before this Court by way of the present petition.

4.

A perusal of the material on record, in particular the Death Certificate dated 15.02.2023 vide Annexure-A will clearly indicate that the aforesaid assessee - Sri. B. Venkatesh had expired prior to the assessment order and as well as the penalty order, which have undisputedly been passed as against a dead person and consequently, the same being non est, nullity and void ab initio, deserves to be set aside and the matter remitted back to respondent No.1 for reconsideration afresh in accordance with law. In the light of the afore, I proceed to pass the following: ORDER a The petition is allowed. b The impugned Assessment Order dated 06.03.2023 [Annexure - D] and the Penalty Order dated 25.09.2023 [Annexure - E4] are hereby quashed.

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NC: 2024:KHC:31780 WP No. 325 of 2024

c The matter is remitted back to the respondent No.1 for reconsideration afresh in accordance with law. d The respondent No.1 is directed to notify/intimate the petitioners and the respondent Nos.4 and 5 and pass appropriate orders after providing sufficient and reasonable opportunity to them in accordance with law. e Liberty is reserved in favour of the petitioners and respondent Nos.4 and 5 to file their reply, pleadings, documents etc., which shall be considered by respondent No.1, who shall proceed further in accordance with law.

Sd/- (S.R.KRISHNA KUMAR) JUDGE

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