2019 (10) TMI 861 - HC - Income Tax

Validity of reopening of assessment - as per assessee re-opening notice was issued in the name of dead person - HELD THAT - We note that the impugned reopening notice is addressed as Shobha Jagdish Ahuja, Legal Heir Jagdish M Ahuja, 402, Shravan, Plot No.542, 13th Road, Khar (W) Mumbai . Therefore it cannot be said that the notice has been issued in the name of a dead person. In fact it is issued to the Petitioner as the legal heir of the dead person the late Mrs.Shobha Jagdish Ahuja. Thus there is no substance in this submission. We note that for an earlier Assessment Year namely 2010-2011 a similar issue had arisen and the Petitioner had filed a Writ Petition - Commissioner of Income Tax (Appeals)-34 having his office at Earnest House, Nariman Point, Mumbai had instructed his Advocate to state before this Court that if a hard copy of the appeal is filed by Petitioner, the same would be accepted by Commissioner of Income Tax (Appeals) and adjudicated upon. This has become necessary in view of the fact that the Petitioner claims that he is not the legal heir of late Mrs.Shobha Jagdish Ahuja and therefore, is in no position to obtain heir-ship certificate which would enable to e-file his appeal before Commissioner of Income tax (Appeals).

Summary

Issues:
Challenge to assessment order under Income Tax Act, 1961 for Assessment Year 2011-12 based on jurisdiction of reopening notice under section 148. Entertaining the petition due to inability to file an appeal without a legal heir certificate. Previous issue faced for Assessment Year 2010-11 regarding appeal filing without legal heir certificate.

Analysis:
The judgment by the High Court of Bombay involved a challenge to an assessment order dated 31 December 2018 passed by the Assessing Officer under the Income Tax Act, 1961 for Assessment Year 2011-12. The petitioner, as the legal heir of the deceased, contested the jurisdiction of the reopening notice issued under section 148, claiming it was addressed to a dead person. However, the court noted that the notice was correctly issued to the petitioner as the legal heir of the deceased, dismissing this challenge for lack of substance.

Regarding the inability to file an appeal due to the absence of a legal heir certificate, the petitioner argued that he is not the legal heir of the deceased and therefore could not e-file the appeal. The court considered a similar issue from the previous Assessment Year 2010-11 where the petitioner had filed a Writ Petition. The Commissioner of Income Tax (Appeals) had agreed to accept a hard copy of the appeal for adjudication. The court, based on the previous order, disposed of the current petition with liberty for the petitioner to file an appeal within two weeks in hard copy, ensuring the appeal would be entertained and decided on merits.

In conclusion, the High Court dismissed the petition, allowing the petitioner to file an appeal within the specified period without the need for a legal heir certificate. The time spent pursuing the petition was excluded for the purpose of filing the appeal, ensuring the petitioner's bona fide efforts were considered. The Notice of Motion related to the case was also dismissed as infructuous in light of the judgment.