Smt. Sudha Prasad Vs. Chief Commissioner of Income Tax and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988[c.a.no.59/1988] section 166; [a.k. patnaik, cj, a.k. gohil & s. samvatsar, jj] application for compensation for personal injury death of injured claimant subsequently for some other reasons held, claim for personal injury will abate on the death of claimant. claim will not survive to his legal representative except as regards claim for pecuniary loss to estate of claimant.order1. heard both sides. the petitioner a legal representative of one deceased b.b. prasad is before us. premises of b.b. prasad was searched on 17.9.1993. b.b. prasad died on 6.4.2001. on 6.5.2002, notice was issued to b.b. prasad asking him to file a return under the income tax act, 1961. since no return was filed, a notice under section 142 of the act was issued to him on 13.6.2002. a notice was again issued to b.b. prasad on 20.6.2002. the assessment was completed under annexure 8, which was followed by a demand notice, annexure 8/1. at this stage, the widow of b.b. prasad has come forward with this writ petition challenging the order of assessment annexure 8 and the demand notice annexure 8/1 on the ground that order of assessment was a nullity. it has been passed against a dead person and hence the demand was unenforceable. 2. on the other hand, it has been submitted by counsel for the department that the factum of death of b.b. prasad wasnever brought to the notice of the concerned assessing authority or superior authority and therefore, the assessment was completed against b.b. prasad. 3. under section 159 of the act, an assessment proceeding, which could have been taken against the deceased if he had survived, may be taken against the legal representative. according to counsel for the writ petitioner, since the machinery available under section 159(2)(b) of the act was not resorted to by the department, the order of assessment passed against a deceased person has to be deemed to be a nullity and unenforceable. 4. it cannot but be said that a proceeding against a deceased person, culminating in an order of assessment, has to be regarded as a nullity in the sense that it was passed against a dead person. but in this case, we are inclined to accept the submission of the revenue that the assessment was completed against b.b. prasad only in view of the fact that the authority concerned was not made aware of the death of b.b. prasad. but since the proceeding had not been initiated by a notice while b.b. prasad was alive, the department could have completed the proceeding only after issuance of notice to the legal representatives of deceased b.b. prasad. since that was not done, on that short ground the order of assessment, annexure 8 and the demand notice, annexure 8/1 require to be set aside. 5. counsel for the writ petitioner submitted that what has to be done is to quash the order of assessment, annexure 8 and the demand notice, annexure 8/1 and to permit the department to proceed in accordance with law. counsel for the department, on the other hand, submitted that since it is a case of a bona fide mistake arising out of ignorance of the death of b.b. prasad, the department should be allowed to complete the proceeding under the act by giving an opportunity to the legal representatives of deceased b.b. prasad either to file a return or to file an objection to the notice under section 142 of the act. 6. on the facts and in the circumstances of the case, we are of the view that an opportunity should be given to the department to complete the proceeding, after giving an opportunity to the writ petitioner, widow of deceased b.b. prasad, to file a return or an objection to the notice under section 142 of the act. however, since the widow has appeared before us, no fresh notice need to be given to her. it will be open to her either to file a return or an objection to the notice under section 142 of the act. 7. it will also be open to the authority concerned to proceed to complete the assessment based on such return or objection, after giving notice to the other legal representatives, if any, of deceased b.b. prasad and after hearing them. it will be the obligation of the widow of deceased b.b. prasad, to furnish the details of the other legal representatives, if any, of deceased b.b. prasad, along with her objection. 8. in the result, this writ petition is allowed, annexure 8 and 8/1, the order of assessment and the demand notice respectively, are set aside and the proceeding is remitted to the assessing authority for completing the assessment in accordance with law and as directed above.

Judgment:
ORDER

1. Heard both sides. The petitioner a legal representative of one deceased B.B. Prasad is before us. Premises of B.B. Prasad was searched on 17.9.1993. B.B. Prasad died on 6.4.2001. On 6.5.2002, notice was issued to B.B. Prasad asking him to file a return under the Income Tax Act, 1961. Since no return was filed, a notice under Section 142 of the Act was issued to him on 13.6.2002. A notice was again issued to B.B. Prasad on 20.6.2002. The assessment was completed under Annexure 8, which was followed by a demand notice, Annexure 8/1. At this stage, the widow of B.B. Prasad has come forward with this Writ Petition challenging the order of assessment Annexure 8 and the demand notice Annexure 8/1 on the ground that order of assessment was a nullity. It has been passed against a dead person and hence the demand was unenforceable.

2. On the other hand, it has been submitted by counsel for the department that the factum of death of B.B. Prasad wasnever brought to the notice of the concerned assessing authority or superior authority and therefore, the assessment was completed against B.B. Prasad.

3. Under Section 159 of the Act, an assessment proceeding, which could have been taken against the deceased If he had survived, may be taken against the legal representative. According to counsel for the writ petitioner, since the machinery available under Section 159(2)(b) of the Act was not resorted to by the department, the order of assessment passed against a deceased person has to be deemed to be a nullity and unenforceable.

4. It cannot but be said that a proceeding against a deceased person, culminating in an order of assessment, has to be regarded as a nullity in the sense that it was passed against a dead person. But in this case, we are inclined to accept the submission of the Revenue that the assessment was completed against B.B. Prasad only in view of the fact that the authority concerned was not made aware of the death of B.B. Prasad. But since the proceeding had not been initiated by a notice while B.B. Prasad was alive, the department could have completed the proceeding only after issuance of notice to the legal representatives of deceased B.B. Prasad. Since that was not done, on that short ground the order of assessment, Annexure 8 and the demand notice, Annexure 8/1 require to be set aside.

5. Counsel for the writ petitioner submitted that what has to be done is to quash the order of assessment, Annexure 8 and the demand notice, Annexure 8/1 and to permit the department to proceed in accordance with law. Counsel for the department, on the other hand, submitted that since it is a case of a bona fide mistake arising out of ignorance of the death of B.B. Prasad, the department should be allowed to complete the proceeding under the Act by giving an opportunity to the legal representatives of deceased B.B. Prasad either to file a return or to file an objection to the notice under Section 142 of the Act.

6. On the facts and in the circumstances of the case, we are of the view that an opportunity should be given to the department to complete the proceeding, after giving an opportunity to the writ petitioner, widow of deceased B.B. Prasad, to file a return or an objection to the notice under Section 142 of the Act. However, since the widow has appeared before us, no fresh notice need to be given to her. It will be open to her either to file a return or an objection to the notice under Section 142 of the Act.

7. It will also be open to the authority concerned to proceed to complete the assessment based on such return or objection, after giving notice to the other legal representatives, if any, of deceased B.B. Prasad and after hearing them. It will be the obligation of the widow of deceased B.B. Prasad, to furnish the details of the other legal representatives, if any, of deceased B.B. Prasad, along with her objection.

8. In the result, this Writ petition is allowed, Annexure 8 and 8/1, the order of assessment and the demand notice respectively, are set aside and the proceeding is remitted to the assessing authority for completing the assessment in accordance with law and as directed above.