A Dead Proprietor Cannot Be a GST Noticee

Jurisdiction Begins With the Right Person

The Orissa High Court's decision in M/s. J.S. Enterprisers Versus The Superintendent Central GST and Cx Division Cuttack-I Cuttack, Assistant Commissioner Central GST and CX Division Cuttack-I Cuttack. - 2026 (7) TMI 1524 - ORISSA HIGH COURT, addresses a foundational issue in GST adjudication. The issue was not whether tax liability can survive the death of a proprietor in every case. The real issue was whether the Department can initiate and complete adjudication proceedings by issuing a show cause notice and passing an Order-in-Original in the name of a proprietor who had already died. The Court answered this question in clear terms. A dead person cannot be made the noticee for determination of GST liability.

The facts sharpened the issue. Late Sri Manoranjan Mohapatra carried on business as proprietor of M/s J.S. Enterprisers under GSTIN 21AGEPM8738K1Z5. He died on 24.11.2022. Thereafter, the legal heirs took steps to continue the business. A partnership firm was constituted under the same trade name, and a fresh GST registration was obtained. A non-core amendment was also approved on 20.06.2023, indicating Sri Jyoti Ranjan Mohapatra as the legal heir. Despite this background, the Department issued a show cause notice and a demand-cum-show cause notice dated 25/26.09.2025 in the name of Late Manoranjan Mohapatra for Financial Year 2021-22. The Order-in-Original dated 29.12.2025 was also passed in the name of the deceased proprietor.

This is why the case is important for tax administration. GST is largely registration- and portal-driven. However, adjudication remains person-driven in law. The person against whom a liability is proposed must exist in law or be properly represented through a legally recognised route. A GSTIN, trade name, or portal entry cannot, by itself, replace the need to address the correct living person or legal representative. Jurisdiction begins with the right noticee.

Section 73 Requires a Living Noticee and a Valid Opportunity

Section 73 of the CGST Act deals with the determination of tax not paid, short paid, erroneously refunded, or input tax credit wrongly availed or utilised, excluding cases involving fraud, wilful misstatement or suppression of facts. It is the ordinary demand provision for non-fraud cases. The proper officer is required to issue a show cause notice to the person chargeable with tax, interest or penalty. After considering any representation made by such person, the officer may determine the amount payable.

This statutory structure shows that Section 73 is not merely about the calculation of tax. It is also about procedure. The provision contemplates a person chargeable with tax, a notice to that person, an opportunity to respond, consideration of the response, and then determination. The entire structure assumes that the noticee is capable of receiving the notice, understanding the allegation, submitting a reply, and participating in adjudication. A deceased proprietor cannot perform any of these functions.

Therefore, when a Section 73 notice is issued in the name of a dead person, the defect is not cosmetic. It affects the legal life of the proceeding. A dead person cannot be called upon to show cause. A dead person cannot produce records, contest the computation, explain ITC, seek a hearing, or raise limitation. The person who may be legally concerned after death is the legal representative or the person continuing the business. Such person must be addressed in that capacity. Without this, the statutory opportunity under Section 73 becomes meaningless.

A Notice to a Dead Person Is Not a Curable Defect

The first principle emerging from the judgment is simple yet extremely important. A show cause notice must be issued to a person who exists in law. If the notice is issued to a dead person, the defect is not merely procedural. It affects the very jurisdiction of the authority to proceed. Tax adjudication begins with notice. The notice informs the person concerned of the proposed demand, the statutory basis of the proceedings, and the opportunity to respond. If the person named in the notice is already dead, the notice cannot perform its legal function.

The Court treated the requirement to issue notice to the correct person as a condition precedent to the valid assumption of jurisdiction. This means that the authority acquires jurisdiction to adjudicate only when the proceeding is initiated against the correct legal person. A wrong noticee, in such a fundamental sense, is not a minor error in description. It is a defect at the root. Once the foundation is without jurisdiction, the order passed on that foundation cannot survive.

This principle is highly relevant in proprietorship cases. A proprietorship concern is not a separate legal entity distinct from its proprietor, as a company or firm may be treated for various legal purposes. The proprietor is the person behind the business. If the proprietor dies, proceedings cannot mechanically continue in the old name. The Department must examine who is legally answerable under the statute and issue notice accordingly.

Section 93 Creates the Route After Death, Not a Shortcut Against the Dead

The Department relied on Section 93 of the CGST Act, 2017. This provision is central to the controversy. Section 93 sets out special provisions regarding liability to pay tax, interest or penalty in certain cases. Where a person liable to pay tax, interest or penalty dies, the provision draws a distinction between two situations. If the business is continued after death by the legal representative or any other person, that representative or other person becomes liable to pay tax, interest or penalty due from the deceased. If the business is discontinued, the legal representative is liable out of the estate of the deceased, and only to the extent the estate is capable of meeting the charge.

This provision ensures that tax liability does not disappear merely because the taxable person dies. But Section 93 must be read carefully. It deals with liability after death. It does not say that the Department may continue to issue notices and pass orders in the name of the deceased. It does not convert a deceased proprietor into a continuing legal noticee. It also does not dispense with notice to the legal representative or the person continuing the business. The person who may be made liable must be given the opportunity to contest the proposed liability.

The High Court therefore drew a vital distinction between liability and determination. Section 93 may identify the person from whom tax, interest or penalty may be recovered, or who may be liable, in certain circumstances. But the determination of such liability must still be made through a lawful proceeding. If the Department wants to fasten liability on a legal representative, the notice must be issued to that representative. If the Department wants to proceed against the person continuing the business, that person must be placed on notice in that capacity. Section 93 cannot be used as a shortcut to validate proceedings initiated against the deceased.

Knowledge of Death Made the Defect More Serious

The Department's position was weakened by its prior knowledge of the proprietor's death. The record showed that the GST Organisation was aware that Late Manoranjan Mohapatra had died before the show cause notice and the Order-in-Original were issued. The fresh registration of the partnership firm and the approved non-core amendment also indicated that the Department had information about the legal heir and the continuation of the business.

Once the authority had such knowledge, it could not proceed merely on the basis of the old registration name or portal details. The legal fact of death had to prevail over administrative convenience. If the Department wished to examine the transactions of Financial Year 2021-22, it could have issued notice to the legal representative or the person continuing the business in accordance with law. Therefore, proceedings in the name of the deceased proprietor were indefensible.

Participation Cannot Give Life to a Void Proceeding

The Department's argument that the petitioner or authorised representative had participated in the proceedings was rejected. Participation cannot cure a fundamental jurisdictional defect where the notice and order are issued in the name of a deceased person. Legal heirs may sometimes respond to protect the business record or clarify the position, but such a response cannot validate an otherwise void proceeding.

The petitioner had described himself as a legal heir. Therefore, if the Department intended to determine liability against him, it had to issue a notice to him in that capacity. A legal heir's attempt to respond cannot convert a notice against a deceased proprietor into a valid notice against a living person. The law requires a proper beginning with the correct noticee.

The Wider Judicial Principle Across Tax Laws

The Orissa High Court referred to several decisions dealing with notices and orders against deceased persons. Though some of these judgments arose under income-tax law, the underlying principle applies with equal force in GST. A jurisdictional notice must be issued to a living and legally correct person. Where the notice itself is without jurisdiction, the availability of appellate remedy does not prevent writ interference.

The Court referred to Savita Kapila, Legal Heir Of Late Shri Mohinder Paul Kapila Versus Assistant Commissioner of Income Tax, Circle 43 (1) Delhi - 2020 (7) TMI 441 - DELHI HIGH COURT, as noticed in Mrs. Sripathi Subbaraya Manohara L/H Late Sripathi Subbaraya Gupta Versus Principal Commissioner Of Income Tax 22, N. Delhi & Anr-2021 (7) TMI 695 - DELHI HIGH COURT.  The principle flowing from these decisions is that if the foundational notice is issued to a dead person, the assumption of jurisdiction fails. If the notice goes, the assessment or adjudication order built upon it also falls.

The judgment also refers to Sumit Balkrishna Gupta Versus Asstt. Commissioner of Income Tax, Circle 16 (2), Mumbai & Ors. - 2019 (2) TMI 1209 - BOMBAY HIGH COURT, where issuance of notice to the correct person was treated as a condition precedent. Similarly, Alamelu Veerappan Versus The Income Tax Officer, Non Corporate Ward 2 (2), Chennai - 2018 (6) TMI 760 - MADRAS HIGH COURT, Rajender Kumar Sehgal Versus Income Tax Officer Ward 56 (1) New Delhi - 2018 (12) TMI 697 - DELHI HIGH COURT, and CHANDRESHBHAI JAYANTIBHAI PATEL Versus THE INCOME TAX OFFICER - 2019 (1) TMI 353 - GUJARAT HIGH COURT support the principle that notice to a dead person is not a mere mistake, defect or omission.

GST Courts Have Followed the Same Discipline

The Court also considered GST-specific decisions, which make the ruling especially useful for officers and professionals dealing with GST proceedings. In Devendra Kumar Singh (Deceased) Versus State of U.P. and another - 2025 (5) TMI 562 - ALLAHABAD HIGH COURT, it was held that Section 93 deals with liability of legal representatives but does not authorise determination against a dead person. The legal representative must be issued notice and given an opportunity to respond before liability is determined.

In Anil Kumar (since deceased) through his LRs Versus State of Punjab and others - 2025 (2) TMI 1100 - PUNJAB AND HARYANA HIGH COURT, proceedings initiated against a deceased proprietor were treated as indefensible, and the matter was remitted for fresh action in accordance with law. In Baratam Satish Versus The Joint Commissioner of Central Tax, Vizianagaram, The Superintendent of Central Tax, Srikakulam, The Principal Chief Commissioner of Central Tax, Visakhapatnam, The Principal Chief Commissioner of Central Tax, Visakhapatnam, The Union of India. - 2026 (1) TMI 50 - ANDHRA PRADESH HIGH COURT, the Andhra Pradesh High Court explained that Section 93 provides for recovery of dues after death, but assessment must be carried out by involving the representative or person continuing the business.

The Orissa High Court also referred to its earlier decision in Smt. Kanakalata Senapati Versus The Assistant Commissioner GST and Central Excise Bhubaneswar, The Superintendent GST and Central Excise Bhubaneswar. - 2026 (1) TMI 899 - ORISSA HIGH COURT. These decisions show a consistent judicial approach. Tax liability may survive death in the manner provided by statute, but proceedings cannot be framed against a person who no longer exists.

Alternative Remedy Does Not Bar Writ Where Jurisdiction Is Absent

The Department argued that the petitioner should have used the statutory appellate remedy. Ordinarily, High Courts do not interfere where an effective appeal is available. However, this rule does not apply with the same force when the notice or order is wholly without jurisdiction.

In the present case, the challenge was not merely to the amount of the demand or the appreciation of the facts. The objection went to the authority's competence to issue notice and pass an order against a dead person. Since the defect was jurisdictional, the legal heir was not required to pursue a regular appeal merely to challenge a void proceeding.

The Department's Remedy Is Preserved

The judgment does not wipe out possible tax liability. The show cause notice and Order-in-Original were quashed only because they were issued and passed against a dead person. The merits of the liability for Financial Year 2021-22 were not decided.

Since the petitioner had admitted continuation of business using the same GSTIN, Section 93 could still be relevant. The Proper Officer was given liberty to issue notice to the petitioner representing the legal heirs or legal representatives and proceed in accordance with law. If fresh notice is issued, the petitioner may raise all available factual and legal grounds, and the authority must pass a reasoned order.

The Legal Heir's Liability Has Statutory Limits

Section 93 also prevents unlimited exposure of legal representatives. If the business is continued after death, liability may arise against the legal representative or the person continuing the business. If the business is discontinued, liability is limited to the estate of the deceased and only to the extent the estate can meet the charge.

This distinction is important in real life because legal heirs cannot be treated as automatic unlimited substitutes for the deceased taxpayer. Their liability depends on whether the business continued, who continued it, what estate was inherited and what the statute permits. If fresh notice is issued, the legal heir may raise all available defences, including limitation, ITC reconciliation, factual errors, extent of inherited estate and other legal grounds.

Legal Identity Must Be Verified Before Notice

The ruling gives a clear administrative lesson. Before issuing a GST notice, the authority must verify the legal identity of the noticee. If the registered proprietor has died, the notice must be addressed to the legal representative or the person continuing the business in the correct capacity. GST may be technology-driven, but jurisdiction is still a legal requirement. Portal entries, GSTIN status or old business names cannot make a dead person alive for adjudication.

The Practical Lesson for Legal Heirs

For legal heirs, the ruling gives a practical caution. After the death of a proprietor, documents relating to business continuation, closure, registration changes, returns and tax payments should be preserved. Any communication with the Department should clearly mention the death and the capacity in which the legal heir is responding.

If a notice is issued in the name of the deceased person, the legal heir should object to jurisdiction at the earliest. At the same time, records should be kept ready to defend the matter on the merits if fresh proceedings are lawfully initiated. The judgment does not encourage avoidance; it encourages correct procedure.

Tax May Survive Death, but Proceedings Must Address the Living

The final message is clear. Tax liability may survive the death of a proprietor where the statute so provides, but adjudication cannot be initiated or completed against a dead person. Section 93 provides a route for dealing with liability after death; it does not authorise notices and orders in the name of the deceased.

The ruling reaffirms that jurisdiction begins with the correct person. A notice to a dead proprietor is not a harmless mistake but a jurisdictional nullity. In GST, the right demand must travel through the right notice, to the right person, in the right capacity.

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