IN HIGH COURT OF JUDICATURE AT MADRAS Dated : 30-07-2019 Coram HONOURABLE MR. JUSTICE M.SUNDAR W.P.No.2531 of 2019 And W.M.P. Nos.2805 and 2806 of 2019 T.Palani, Legal heir of Late Mr.Kanniappan Thiruvengadam, No.11, Perambur High Road, Jamaliya, Chennai-600 012. .. Petitioner vs. Assistant Commissioner of Income Tax, Non-Corporate Circle-10(1), Nungambakkam, Chennai-34. .. Respondent PRAYER : Writ Petition filed under Article 226 of Constitution of India praying for issuance of Writ of Certiorari, calling for records pertaining to order of respondent dated 28.12.2018 Order No. ITBA/AST/S/143(3)/2018-19/1014624990(1) received on 28.12.2018 for assessment year 2016-2017 and quash same. For Petitioner : Mr.P.J.Rishikesh For Respondent : Mr.J.Narayanaswamy, Senior Standing Counsel (Income Tax). 1/12 WP No.2531 of2019 ORDER Mr.P.J.Rishikesh, learned counsel on record for writ petitioner and Mr.J.Narayanaswamy, learned Senior Standing Counsel (Income Tax) on behalf of sole respondent are before this Court. 2. Sole respondent has filed counter-affidavit dated 17.6.2019 and therefore, pleadings are complete. 3. Be that as it may, with consent of learned counsel on both sides, main writ petition itself is taken up, heard out and is being disposed of. 4. scope of this entire writ petition is very narrow and in light of submissions made in Court in hearing, it now turns on narrower compass. 5. assessment order made by respondent being 'assessment order dated 28.12.2018 bearing Order No.ITBA/AST/S/ 143(3)/2018-19/1014624990(1) pertaining to PAN No.ABNPT3323R 2/12 http://www.judis.nic.in WP No.2531 of2019 for assessment year 2016-2017' (hereinafter referred to as 'impugned assessment order' for brevity) has been called in question in instant writ petition. 6. Challenge to impugned assessment order is predicated on sole ground that it has been made in name of dead person. There is no disputation or disagreement that impugned order has been made in name of one Kanniappan Thiruvengadam and that said Kanniappan Thiruvengadam died on 11.10.2015. To be noted, impugned assessment order is dated 28.12.2018. 7. This Court is informed without any disputation or disagreement that writ petitioner before this Court i.e., T.Palani is aforementioned Kanniappan Thiruvengadam's son and legal heir. 8. Learned counsel for writ petitioner submits that returns for assessment year pertaining to impugned assessment order namely, assessment year 2016-2017 was filed by writ petitioner on 30.9.2016, post demise of assessee. After returns were filed on 30.9.2016, Income Tax Department had sent notice under Section 143(2) of Income Tax Act, 1962 (hereinafter 'IT Act'). What is of utmost 3/12 http://www.judis.nic.in WP No.2531 of2019 significance is, this notice sent by IT Department under Section 143(2) of IT Act, pursuant to returns filed for assessment year 2016-2017 is addressed to writ petitioner describing him as legal heir of late Kanniappan Thiruvengadam, but ultimately, when assessment was carried to its logical end and when it culminated in impugned assessment order, same has been issued in name of deceased Kanniappan Thiruvengadam. On this basis, it is submitted by learned counsel for writ petitioner that impugned assessment order is nullity. In other words, entire writ petition is predicated on pivotal and primordial ground that impugned assessment order has been made in name of dead person and is therefore nullity. 9. In response to aforesaid challenge to impugned assessment order, learned Revenue Counsel adverting to aforementioned counter-affidavit submitted that response of respondent is of three fold and they are as follows: (a) Impugned assessment order is software generated and respondent cannot change certain details which appear above caption 'assessment order'. (b) Impugned assessment order 4/12 http://www.judis.nic.in WP No.2531 of2019 being issued in name of dead person or in other words in name of assessee post demise, is only curable defect and same is curable under Section 292-B of IT Act. (c) Writ petitioner has alternate remedy, as statutory appeal to Commissioner of Income Tax Appeals (hereinafter 'CIT Appeals' for brevity) will lie under Section 246-A of IT Act. 10. This Court has carefully considered rival submissions. 11. last of threefold submissions made by Revenue Counsel, namely, alternate remedy pales into insignificance in light of trajectory writ petition has taken at this stage. When this matter came up for admission before predecessor Hon'ble Single Judge, proceedings came to be made on 30.1.2019 and said proceedings read as follows: 'Mr.Naveen Durai Babu, learned standing counsel takes notice for respondent. 5/12 http://www.judis.nic.in WP No.2531 of2019 2. This writ petition is filed challenging order of assessment dated 28.12.2018 passed under Section 143(3) of Income Tax Act, 1961. 3. petitioner before this Court is son of one Kanniappan Thiruvengadam, who is assessee before respondent. main ground, of challenge is that assessment order was passed in name of dead person. It is specific case of petitioner that even notice issued under Section 143(2) dated 27.11.2018 was also on dead person, when assessee, viz., petitioner's father had expired on 11.10.2015, much earlier to issuance of said notice. It is further contended that even though said factum of death of assessee was brought to notice of Assessing Officer on very many occasions commencing from reply dated 19.12.2018 and last of such reply dated 26.12.2018, Assessing Officer has chosen to pass impugned order on 28.12.2018 erroneously once again in name of dead person only. Therefore, it is contended that impugned assessment order cannot be sustained in eye of law. 4. learned counsel for petitioner further contended that even though statutory appeal was filed on 07.01.2019 against assessment order, since very order of assessment cannot be sustained on sole reason that same was passed against dead person, pursuing such appeal on merits of assessment before Appellate will be futile and therefore, petitioner is willing to withdraw said 6/12 http://www.judis.nic.in WP No.2531 of2019 appeal. 5. Perusal of notice dated 27.11.2018 and reply submitted by petitioner, more particularly, one dated 26.12.2018, which was duly acknowledged by Department on 26.12.2018 itself, would show that Assessing Officer has proceeded with assessment proceedings against dead person and consequently, passed assessment order also on 28.12.2018 in name of such dead person. Hence, this Court prima facie finds that such order passed on dead person cannot be sustained. Therefore, this Court is inclined to examine said issue further. Since petitioner has undertaken to withdraw appeal already filed before Appellate Authority, said submission is recorded and respondent is directed to file counter within period of three weeks. 6. Considering above stated facts and circumstances, there will be order of interim stay of impugned proceedings, pending further orders.' (Underlining made by this Court to supply emphasis and highlight) 12. To be noted, vide aforesaid proceedings of this Court, interim order has also been granted. 13. Owing to aforesaid proceedings, particularly, 7/12 http://www.judis.nic.in WP No.2531 of2019 underlined portion, writ petitioner counsel submits that writ petitioner withdrew statutory appeal by filing memo dated 25.2.2019 and CIT Appeals accepted same on 28.2.2019. It was pointed out that counter-affidavit of respondent has been filed only on 17.6.2019. Therefore, withdrawal of statutory appeal by writ petitioner is pursuant to orders and proceedings of this Court made by predecessor Hon'ble Judge and therefore, alternate remedy plea pales into insignificance. 14. With regard to first of threefold submissions pertaining to software, suffice to say that it is for Income Tax Department to update data software to make allowance for such situations. In considered view of this Court, such situations may not be infrequent and isolated. In other words, situations wherein returns are filed post demise of assessee by legal heir are common situations and therefore, it is for Income Tax Department to ensure that adequate updation is made in software in this regard. That puts end to first of threefold submissions pertaining to software. 15. This leaves us with second of threefold 8/12 http://www.judis.nic.in WP No.2531 of2019 submissions i.e., that which turns on Section 292-B of IT Act on basis of which learned Revenue Counsel submits that it is curable defect. 16. Learned counsel for writ petitioner pressed into service some orders to say that this Court has held that proceedings against dead person are nullity, but learned Revenue Counsel says that these orders are distinguishable on facts as they pertain to notices whereas instant writ petition is one assailing assessment order made under Section 143(3) of IT Act. In considered view of this Court, it may not be necessary to delve into those aspects of matter further and it would serve purpose to direct respondent to redo assessment in name of writ petitioner on merits of returns and in accordance with law. 17. In considered opinion of this Court, this will safeguard interest of writ petitioner (assessee's legal heir) as well as protect interest of Revenue. 18. It was contended by learned Revenue Counsel that all that needs to be done is, impugned assessment is to be made in 9/12 http://www.judis.nic.in WP No.2531 of2019 name of writ petitioner or in other words according to learned Revenue Counsel in impugned assessment order name of late assessee Kanniappan Thiruvengadam has to be replaced with name of writ petitioner, namely, T.Palani. This Court is of considered view that this is untenable as it would lead to proposition that decree can be obtained against dead person and name of judgment- debtor alone can be changed to that of legal heir. No elucidation or elaboration is required to highlight that such proposition is clearly not tenable. 19. Therefore, in light of narrative thus far, this Court deems it appropriate to set aside impugned assessment order being assessment order dated 28.12.2018 bearing Order No.ITBA/AST/S/143(3)/2018-19/1014624990(1) pertaining to PAN No.ABNPT3323R for assessment year 2016-2017 and respondent is directed to redo assessment after putting writ petitioner on notice. Respondent so redoing assessment shall be on merits of returns filed on 30.9.2016 and obviously in accordance with law. To be noted, impugned assessment order is set aside without expressing any opinion on merits of matter or in other words, impugned assessment order is set aside on sole 10/12 http://www.judis.nic.in WP No.2531 of2019 ground that it has been made in name of dead person, for limited purpose of facilitating respondent to redo matter. 20. Writ petition is disposed of with above directions. However, there shall be no order as to costs. Consequently, connected miscellaneous petitions are closed. 30-07-2019 Speaking/Non Speaking Order: Yes/No. Internet : Yes/No. Index: Yes/No. Svn To Assistant Commissioner of Income Tax, Non-Corporate Circle-10(1), Nungambakkam, Chennai-34. 11/12 WP No.2531 of2019 M.SUNDAR.J., Svn W.P.No.2531 of 2019 30-07-2019 12/12 T. Palani, legal heir of Kanniappan v. Assistant Commissioner of Income-tax, Non-Corporate Circle-10(1), Chennai