S.M. Sarveswaran (HUF) v. The Income-tax Officer, Non Corporate Ward-1(2), Coimbatore
[Citation -2019-LL-0917-51]

Citation 2019-LL-0917-51
Appellant Name S.M. Sarveswaran (HUF)
Respondent Name The Income-tax Officer, Non Corporate Ward-1(2), Coimbatore
Court HIGH COURT OF MADRAS
Relevant Act Income-tax
Date of Order 17/09/2019
Assessment Year 2012-13
Judgment View Judgment
Keyword Tags barred by limitation • issuance of notice • dead person • legal heir • reopening of assessment
Bot Summary: Respondent PRAYER : Writ Petition filed under Article 226 of the Constitution of India for issuance of a Writ of certiorari to call for the records of the respondent in PAN/NCW1(2)/CBE/18-19, quash the notice dated 29.03.2019. 2.The case of the petitioner, in short, is as follows: The petitioner's father by name V.Maruthachalam was not an assessee to his knowledge and did not file income tax return either for the financial year 2011-12 /Assessment year 2012-13 or for the earlier years. The petitioner's mother predeceased the petitioner's father. Whileso, after six years of the petitioner's father's demise, the respondent issued the impugned notice under Section 148 of the Income Tax Act in the name of the petitioner's deceased father represented by the legal heirs, out of whom, the first person was shown as M/s.S.M.Saraveswaran. Counter affidavit is filed by the respondent, wherein it is stated as follows: The writ petition is not maintainable challenging the notice issued under Section 148 of the Income Tax Act. Upon the request so made, the reasons can be furnished and the petitioner can file objections and the Officer thereafter has to pass a speaking order before proceeding with the assessment. As rightly pointed out by the learned Senior Standing counsel appearing for the respondent, the petitioner can file return and seek for reasons for reopening and in that event it is the duty of the respondent to give reasons so as to enable the petitioner to file his objection to the reopening proceedings.


IN HIGH COURT OF JUDICATURE AT MADRAS Dated 17.09.2019 CORAM HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU W.P.No.19279 of 2019 and W.M.P.No.18727 of 2019 M/s.S.M.Sarveswaran (HUF), REP. by its Kartha, S.M.Sarveswaran, BD2, Orchid Eleganz Apartments, Kannapiran Mills Road, Sowripalayam, Coimbatore-28. ...Petitioner Vs. Income Tax Officer, Non Corporate Ward -1(2), Office of ITO, Non Corporate Ward 1(2), 67-A, Race Course Rd, Race Course, Gopalapuram, Coimbatore 641018. ... Respondent PRAYER : Writ Petition filed under Article 226 of Constitution of India for issuance of Writ of certiorari to call for records of respondent in PAN/NCW1(2)/CBE/18-19, quash notice dated 29.03.2019. For Petitioner : Mr.R.Asokan For Respondents : Mr.A.P.Srinivas Senior Standing Counsel 1/6 http://www.judis.nic.in W.P.No.19279 of 2019 ORDER Heard Mr.R.Asokan, learned counsel for petitioner and Mr.A.P.Srinivas, learned Senior Standing Counsel for respondent. 2.The case of petitioner, in short, is as follows: petitioner's father by name V.Maruthachalam was not assessee to his knowledge and did not file income tax return either for financial year 2011-12 /Assessment year 2012-13 or for earlier years. His father was agriculturist and possessed only agricultural lands. He did not have any other income except agricultural income. Therefore, there was no need to file any return of income under Income Tax Act. He died on 02.08.2012, leaving behind petitioner and his two sisters viz., Pushparagini and J.Nirmala, as his legal heirs. petitioner's mother predeceased petitioner's father. Whileso, after six years of petitioner's father's demise, respondent issued impugned notice under Section 148 of Income Tax Act in name of petitioner's deceased father represented by legal heirs, out of whom, first person was shown as M/s.S.M.Saraveswaran (HUF). notice issued on dead person is nullity and void. HUF 2/6 http://www.judis.nic.in W.P.No.19279 of 2019 cannot be legal heir of person. present notice is barred by limitation, since notice is issued after lapse of four years from end of said assessment year. 3. Counter affidavit is filed by respondent, wherein it is stated as follows: writ petition is not maintainable challenging notice issued under Section 148 of Income Tax Act. Hon'ble Supreme court in GKN Drive Shafts' case reported in 259 ITR 19 (SC), clarified procedure to be followed, when notice is issued under Section 148. Therefore, petitioner has to follow such procedure including by asking reasons for reopening assessment. Upon request so made, reasons can be furnished and petitioner can file objections and Officer thereafter has to pass speaking order before proceeding with assessment. In this case, writ petitioner has not filed return and on other hand filed present writ petition straightaway. 4.Apart from saying so in above counter affidavit, respondent has narrated certain other facts and circumstances, which warranted issuance of notice under Section 148. Those contentions are on factual 3/6 http://www.judis.nic.in W.P.No.19279 of 2019 aspects of matter involving reopening proceedings, over which, this Court, at this stage, is not inclined to express any view, since this Court is fully convinced that present writ petition as such filed against notice under Section 148 of Income Tax Act, cannot be maintained without following procedures as clarified by Apex Court in GKN Drive Shafts's case. 5. No doubt, it is contended by learned counsel for petitioner that impugned notice issued in name of dead person cannot be maintained. In support of such contention, learned counsel sought to rely on decision of this Court made in W.P.No.30060 of 2017 dated 07.06.2018. 6. careful perusal of present facts and circumstances of case, more particularly, impugned notice as well as facts and circumstances of above said case relied on by learned counsel would undoubtedly indicate that they are distinguishable. It is seen that in above case relied by learned counsel, notice under Section 148 was issued only in name of dead person. Therefore, this Court finds that such notice is not sustainable. However, perusal of impugned notice in this case would show that it was not simply issued in name of dead person alone and on other hand, it proceeds to indicate that same was issued in name of 4/6 http://www.judis.nic.in W.P.No.19279 of 2019 V.Maruthachalam, represented by legal heirs and by showing three persons, including petitioner, as legal heirs. Therefore, notice issued under Section 148 in this case cannot be construed as if it was issued only in name of dead person. 7. As rightly pointed out by learned Senior Standing counsel appearing for respondent, petitioner can file return and seek for reasons for reopening and in that event it is duty of respondent to give reasons so as to enable petitioner to file his objection to reopening proceedings. Needless to say that once such objections are filed, speaking order is to be passed by respondent as observed in GKN Drive Shaft's case. When such course of action is yet to take place, I do not think that petitioner is entitled to maintain writ petition by challenging notice issued under Section 148 at very initial stage. 8. Accordingly, this writ petition is disposed of, by granting liberty to petitioner to follow procedures laid down after issuance of Section 148 notice as explained/clarified in GKN Drive Shaft's case. Accordingly, petitioner shall file return, as required in impugned notice within 5/6 http://www.judis.nic.in W.P.No.19279 of 2019 K.RAVICHANDRABAABU,J. VRI period of 15 days from date of receipt of copy of this order and ask for reasons for reopening. No costs. connected miscellaneous petition is closed. 17.09.2019 Speaking/Non Speaking Index :Yes/No vri To Income Tax Officer, Non Corporate Ward -1(2), Office of ITO, Non Corporate Ward 1(2), 67-A, Race Course Rd, Race Course, Gopalapuram, Coimbatore 641018. W.P.No.19279 OF 2019 6/6 S.M. Sarveswaran (HUF) v. Income-tax Officer, Non Corporate Ward-1(2), Coimbatore
Report Error