Order against deceased person held void; Revenue can proceed afresh against legal heirs under GST Law

The Hon’ble Bombay High Court in Sunil Thampy Nair Versus State of Maharashtra. - 2025 (7) TMI 1609 - BOMBAY HIGH COURT held that an order passed against a deceased person is a nullity in law and cannot be sustained, while permitting the Revenue under Section 93 of the CGST Act, 2017 to initiate fresh proceedings against the legal representatives.

Facts:

Sunil Thampy Nair ('the Petitioner') challenged the order dated December 22, 2023 issued in the name of his wife, who had expired on December 29, 2018, raising a demand of Rs. 80,62,516. Consequentially, a notice for attachment of properties in Form GST DRC-16 dated July 30, 2024 was also issued. The Petitioner contended that the impugned order was a nullity, having been made against a dead person.

State of Maharashtra ('the Respondent') relied on Section 93 of the CGST Act, 2017, submitting that they were entitled to proceed against the legal representatives of the deceased taxable person.

During proceedings, the Petitioner filed an affidavit dated January 6, 2025 disclosing the names, addresses, and relationship of all legal representatives, along with details of the immovable property owned by the deceased, which remained in her name. The Respondent submitted that a fresh show cause notice would be issued to the legal representatives within 4 weeks and adjudicated within 6 months in compliance with principles of natural justice.

Issue:

Whether an order passed against a deceased taxable person is legally sustainable, and whether proceedings can be initiated afresh against their legal representatives under Section 93 of the CGST Act, 2017?

Held:

The Hon’ble Bombay High Court in Sunil Thampy Nair Versus State of Maharashtra. - 2025 (7) TMI 1609 - BOMBAY HIGH COURT held as under:

• Observed that, the impugned order dated December 22, 2023 was passed against a dead person, rendering it a nullity in law.
• Noted that, Section 93 of the CGST Act, 2017 enables the Department to proceed against legal representatives for dues of a deceased taxable person.
• Held that, the Petitioner disclosed all legal representatives and property details via affidavit, and the Respondent undertook to issue a fresh show cause notice within 4 weeks and conclude adjudication within 6 months, ensuring compliance with principles of natural justice.
• Further directed that, the impugned order and consequential Form GST DRC-16 attachment be quashed, with liberty to the Department to proceed against legal representatives in terms of Section 93.

Our Comments:

The decision aligns with the settled principle reiterated by the Allahabad High Court in Atishay Jain v. State of U.P. & Ors. where it was categorically held that Section 93 of the CGST Act, 2017 permits only the recovery of tax dues from the estate of a deceased person but does not empower the authorities to determine tax liability against a deceased individual. The Court emphasized that proceedings initiated in the name of a dead person are a nullity in law and offend the principles of natural justice. It further clarified that any determination of liability must be based on a valid show cause notice issued to the legal representative, with due opportunity of hearing. This reasoning directly supports the Bombay High Court’s approach in the present case, where the demand order against a deceased assessee was set aside and liberty was granted to proceed afresh against legal heirs in compliance with Section 93.

Relevant Provision:

Section 93 of the CGST Act, 2017

93. Special provisions regarding liability to pay tax, interest or penalty in certain cases:

(1) Save as otherwise provided in the Insolvency and Bankruptcy Code, 2016, where a person, liable to pay tax, interest or penalty under this Act, dies, then-

(a) if a business carried on by the person is continued after his death by his legal representative or any other person, such legal representative or other person, shall be liable to pay tax, interest or penalty due from such person under this Act; and

(b) if the business carried on by the person is discontinued, whether before or after his death, his legal representative shall be liable to pay, out of the estate of the deceased, to the extent to which the estate is capable of meeting the charge, the tax, interest or penalty due from such person under this Act, whether such tax, interest or penalty has been determined before his death but has remained unpaid or is determined after his death.”

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