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Notice issued to a dead person u/s 148 of the Income Tax Act not valid: Delhi HC
In the case of Savita Kapila v. Assistant Commissioner of Income Tax, Delhi W.P. (C) 3258/2020, a division bench of Justice Manmohan and Justice Sanjeev Narula, of the Delhi High Court held that notice issued to a dead person under Section 148 is not valid in law. This WP aims at quashing a notice dated 31st March 2019 that had been issued to a deceased assessee under Section 148. The petitioner's father in this case had a sum of about Rs. 21,31,000 on which he had filed no return in the year of 2010-11. "Mr. Mohinder Paul Kapila was selected under Section 147/148 of the Act 1961, on 28th March 2019". The issue here is that he had already expired on 21st December 2018.
Several notices were issued to the deceased assessee regarding the same. These were never served upon the assessee or his legal heirs. A show-cause notice was then issued on 10th October 2019 to explain why a penalty should not be imposed. Further, when a call was made to his daughter i.e. the petitioner it was informed that her father had passed away. The death certificate was then uploaded on the website on 15th October. On the 21st November penalty was imposed u/s271(1)(b) for noncompliance of notice to the legal heir.
The petitioner's advocate Mr. Siddharth Ranka submitted before the bench that the impugned notice was not in accordance with the settled position of law. The notice had been issued after the death of the assessee, wherein he relied upon the case of "Braham Prakash v. ITO 2004 (9) TMI 49 (Delhi)." Further, he also pointed out that the notice was not issued to the petitioner or any other legal heir and the "proceedings were transferred to the petitioner's PAN" ignoring that other legal heirs also existed.
On the other hand, the respondent submitted that the notice was sent after completing all the formalities of assessment and was in accordance with the statutory laws. It was also pointed out that under Section 150 of the Act the LR is also responsible for the liabilities of the deceased-assessee. The counsel relied upon the case of "Pr. Commissioner of Income Tax v. Maruti Suzuki India Limited, (2019) 416 ITR 613 (SC)".
The court was of the view that " The Sine Qua Non for acquiring jurisdiction to reopen an assessment is that notice u/s 148 be issued to a correct person and not a dead person", the requirement was not fulfilled in this case. The court held that the arguments advanced by the respondent are not "Res Integra" and the Writ Petition was allowed.
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