SHRI RADHA MOHAN KHANDELWAL V. ASSISTANT COMMISSIONER OF INCOME TAX

CW/7882/2022

AI Insights

The case involves a challenge to the orders and proceedings under Section 148 of the Income Tax Act, 1961, which were initiated against a deceased person, Anguri Devi Khandelwal. The petitioner, Shri Radha Mohan Khandelwal, legal heir of the deceased, contested the validity of these proceedings. The Supreme Court's decision in Union of India & Others Vs. Ashish Agarwal, which addressed similar issues, was pivotal in the High Court's decision. The court found that the notices issued under the unamended Section 148 should be treated as notices under Section 148A, as amended by the Finance Act, 2021, and directed that the proceedings be redrawn accordingly.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 766164 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 27-05-2022
• Assessment Year: misc
• Other Referred Cases: Union of India & Others Vs. Ashish Agarwal (Civil Appeal No. 3005/2022 and batch of appeals)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: AMIT MALANI
• Assessee Lawyers: SANDEEP TANEJA
• Keywords: Deceased; Income Tax; Legal heir; Section 148; Section 148-A
• Section: 148; 148-A

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Civil Writ Petition No. 7882/2022 Shri Radha Mohan Khandelwal, Legal Heir of Late Smt. Anguri Devi Khandelwal And S/o of Late Shri Sitaram Khandelwal, Aged About 62 Years, R/o 674 Khandaka Mansion, Bordi Ka Rasta, Kishanpole Bazar Jaipur 302001, Rajasthan India ----Petitioner Versus Assistant Commissioner of Income Tax, Circle 4, New Central Revenue Building, Statue Circle, Jaipur, Rajasthan, 302005 ----Respondent For Petitioner(s) : Mr. Sandeep Taneja, Advocate For Respondent(s) : Mr. Amit Malani, Advocate for Mr. Nikhil Simlote, Advocate HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE SUDESH BANSAL Judgment / Order 27/05/2022 Heard. Mr. Amit Malani, Advocate, on instructions from Mr. Nikhil Simlote, Advocate on advanced copy, appears on behalf of the respondents. The orders and proceedings under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) have been challenged on the ground that it was initiated and passed against the dead person and in any case in view of the judicial pronouncement of the Hon’ble Supreme Court in the case of Union of India & Others Vs. Ashish Agarwal (Civil Appeal No. 3005/2022 and batch of appeals), the notices which were (2 of 4) [CW-7882/2022] issued under Section 148 of the Act have been treated as Section 148-A of the Act and proceedings may be drawn afresh. As the factual aspect of the case that even before issuing of notice dated 25.06.2021, Anguri Devi Khandelwal died on 10.03.2021, is admitted by counsel for respondent, the notices and the proceedings drawn would be nullity. As far as the legal position with regard to applicability of judgment of Hon’ble Supreme Court in the case of Union of India & Others Vs. Ashish Agarwal (supra) is concerned, the same is not disputed by the learned counsel for the respondent. Considering the above, we are inclined to dispose off the petition in terms of the order passed by the Hon’ble Supreme Court in the case of Union of India & Others Vs. Ashish Agarwal (supra). Following directions have been issued by the Hon’ble Supreme Court in the aforesaid case: “10. In view of the above and for the reasons stated above, the present Appeals are ALLOWED IN PART. The impugned common judgments and orders passed by the High Court of Judicature at Allahabad in W.T. No. 524/2021 and other allied tax appeals/petitions, is/are hereby modified and substituted as under:- (i) The impugned section 148 notices issued to the respective assessees which were issued under unamended section 148 of the IT Act, which were the subject matter of writ petitions before the various respective High Courts shall be deemed to have been issued under section 148A of the IT Act as substituted by the Finance Act, 2021 and construed or treated to be show-cause notices in terms of section 148A(b). The assessing officer shall, within thirty days from today provide to the respective assessees information and material relied upon by the Revenue, so that the assessees can reply to the show-cause notices within two weeks thereafter; (ii) The requirement of conducting any enquiry, if required, with the prior approval of specified authority under section 148A(a) is hereby (3 of 4) [CW-7882/2022] dispensed with as a one-time measure vis-à-vis those notices which have been issued under section 148 of the unamended Act from 01.04.2021 till date, including those which have been quashed by the High Courts. Even otherwise as observed hereinabove holding any enquiry with the prior approval of specified authority is not mandatory but it is for the concerned Assessing Officer to hold any enquiry, if required; (iii) The assessing officers shall thereafter pass orders in terms of section 148A(d) in respect of each of the concerned assessees; Thereafter after following the procedure as required under section 148A may issue notice under section 148 (as substituted); (iv) All defences which may be available to the assessees including those available under section 149 of the IT Act and all rights and contentions which may be available to the concerned assessees and Revenue under the Finance Act, 2021 and in law shall continue to be available. 11. The present order shall be applicable PAN INDIA and all judgments and orders passed by different High Courts on the issue and under which similar notices which were issued after 01.04.2021 issued under section 148 of the Act are set aside and shall be governed by the present order and shall stand modified to the aforesaid extent. The present order is passed in exercise of powers under Article 142 of the Constitution of India so as to avoid any further appeals by the Revenue on the very issue by challenging similar judgments and orders, with a view not to burden this Court with approximately 9000 appeals. We also observe that present order shall also govern the pending writ petitions, pending before various High Courts in which similar notices under Section 148 of the Act issued after 01.04.2021 are under challenge. 12. The impugned common judgments and orders passed by the High Court of Allahabad and the similar judgments and orders passed by various High Courts, more particularly, the respective judgments and orders passed by the various High Courts particulars of which are mentioned hereinabove, shall stand modified/substituted to the aforesaid extent only. (4 of 4) [CW-7882/2022] All these appeals are accordingly partly allowed to the aforesaid extent. In the facts of the case, there shall be no order as to costs.” Learned counsel for the respondent would submit that he may be granted liberty to proceed against the legal representative of the deceased in accordance with the directions given by the Hon’ble Supreme Court in the case of Union of India & Others Vs. Ashish Agarwal (supra), which learned counsel for the petitioner does not dispute. In view of the above, this writ petition is finally disposed off in terms of order dated 04.05.2022 passed by the Hon’ble Supreme Court in the case of Union of India & Others Vs. Ashish Agarwal (supra), granting liberty to proceed against legal representative of deceased Anguri Devi Khandelwal. (SUDESH BANSAL),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ Mohita /2 "