G V Chithra vs. The Assistant Commissioner (St)-Ii

G V CHITHRA, W/O LATE G V PRASAD PROPRIETOR OF M/S SRI KANAKA DURGA HARDWARE, AGED 42 YEARS,

THE STATE OF ANDHRA PRADESH, REP BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, REVENUE CT DEPARTMENT, A P SECRETARIAT BUILDINGS, VELAGAPUDI, GUNTUR DISTRICT, ANDHRA PRADESH

THE UNION OF INDIA, REP BY THE SECRETARY FINANCE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI 110 001

Aggrieved by the ex parte Order dated 03.02.2025 against proprietary concern M/s. Sri Kanaka Durga Hardware, the present Writ Petition is filed.

As per the averments made in the affidavit, the husband of the deponent was proprietor of the said concern and he expired on 12.05.2020 due to heart attack. Respondent authorities passed Order of Summary dated 03.02.2025 against the proprietor, since the husband of the petitioner being proprietor was looking after the financial activities of the business, initiation of proceedings by the respondents was not within the knowledge of the deponent. Be that as it may.

Learned counsel for the petitioner referring to writ petition inter alia submits that Mr. G.V. Prasad alone was managing the proprietary concern and pursuant his death, the business came to standstill and thereafter wife of the deceased started business operations. He submits that the 1st respondent has passed impugned ex parte order against the dead person, who cannot file any reply/objection and without affording opportunity of personal hearing to the petitioner. He also submits that the impugned order covering two financial years is contrary to provisions of Section 74 of GST Act. Placing reliance on the decision of a Coordinate Bench of this Court in W.P.No.11899

Per contra, learned Assistant Government Pleader sought to sustain the impugned order. He submits that the remedy of appeal has not been availed and the Writ Petition is filed with a delay, therefore, the same is liable to be dismissed.

This Court has considered the submissions made and perused the material on record.

Death certificate dated 01.06.2020 (Ex.P.3) indicates that G.V. Prasad purportedly the proprietor died on 12.05.2020, i.e., much prior to passing of the impugned order dated 03.02.2025. It is settled position that any order passed against a dead person does not have legal efficacy.

At this stage, it may be appropriate to refer to the relevant portion of decision in W.P.No.6029 of 2025, which is applicable to the present facts:- “6. It is settled law that the assessments and other proceedings can only be initiated against the persons who are living and such proceedings against death person would not be valid. However, the fact remains that, under Section 93 of the GST Act, the dues of the death person can be recovered either from the business he had set up or from his estate. In such circumstances, in the absences of any provision, this Court would have to be hold that the only practicable way of settling the affairs of the death person would be to direct the assessment being carried out by involving either the representative or person carrying on the business of a death person or which such business is not being carried on, by involving the legal representative who be holding the estate of the deceased person.

In the said circumstances, since the petitioner is the legal representative of the deceased person, being his son, it would be appropriate to set aside the impugned Order, dated

2024, with a direction to carry out a fresh assessment after involving the petitioner herein, by issuing a notice to the petitioner. Needless to say, any recovery that may be initiated, after an Order of assessment, shall be only against the estate of a deceased person and against the petitioner to the extent of the estate of his deceased father, which is available to the petitioner.”

In the light of above said decision and the conclusion arrived at supra, the impugned order dated 03.02.2025 is declared invalid and the same is set- aside.

In the result, the Writ Petition is allowed. However, the 1st respondent is at liberty to issue appropriate notice to the petitioner and proceed with the assessment proceedings after giving due opportunity of hearing to the deponent of the affidavit herein Smt. G.V.Chithra.

Needless to say that the period from the date of passing of the impugned order till the date of receipt of this order shall be excluded for the purpose of limitation. No order as to costs.

Miscellaneous petitions, if any, shall stand closed.