BHUWAN CHANDRA TIWARI Vs. COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX
LAWS(UTN)-2013-4-41
HIGH COURT OF UTTARAKHAND
Decided on April 29,2013

BHUWAN CHANDRA TIWARI Appellant
VERSUS
Commissioner Of Central Excise And Service Tax Respondents

JUDGEMENT

- (1.) A show-cause notice was issued to the deceased-assessee on February 15, 2008. The same was not responded to. Despite non-response to the said notice, three dates of hearing were given. None of them was attended by the deceased-assessee. On March 14, 2009, the deceased-assessee died. Subsequent thereto, on February 26, 2010, the order of assessment was passed. At that time, the assessee, against whom that order was passed, was already dead. The heir of the deceased-assessee challenged the assessment order dated February 26, 2010 solely on the ground that an order, seeking to affect the estate of a deceased, cannot be passed without notice to the estate of the deceased. This aspect of the matter could not be ascertained by the first appellate authority, followed by the Tribunal and, hence, the heir of the deceased-assessee is before this court in appeal. The fact remains that, on death, the estate of the deceased passes on to his/her heirs. Nothing in law remains attached to the dead person. In order to affect that estate, an adjudication is required to be made on notice to those, upon whom the estate will devolve. On an adjudication made after the death, but against the deceased, in law, cannot be enforced against the estate left by him in the hands of his heirs and legal representatives.
(2.) In the circumstances, we allow the appeal and set aside the original assessment order dated February 26, 2010. Having regard to the fact that the death was not in the knowledge of the assessing officer before the order dated February 26, 2010 was passed and having regard to the fact that the deceased-assessee did not respond to the notice dated February 15, 2008 nor ever bothered to attend any of the three sittings fixed by the assessing officer, in the interest of justice, it shall be appropriate to permit the assessing officer to issue a fresh notice of assessment upon the appellant herein, who shall be deemed to be representing the whole estate of the deceased. In the event, such a notice is issued within three months from today, it shall be deemed as if the notice has been issued on March 14, 2009. The appellant shall not be entitled to raise a contention pertaining to limitation in respect of the period between February 15, 2008 and March 13, 2009, inasmuch as the notice dated February 15, 2008 was not responded by the deceased-assessee. It is made clear that, in response to the notice to be issued in terms of this order, it shall be open to the appellant to take such plea as he may deem fit and proper.;


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