TaxTMI 
TaxTMI 
2026 (7) TMI 1524
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....he Integrated Goods and Services Tax Act, 2017, pertaining to Financial Year 2021-22 (covering tax periods from 01.04.2021 to 31.03.2022) are assailed in the afore-noted writ petition, wherein the petitioner craves to invoke extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India with the prayer(s) to grant following relief(s): "Under the facts and in the circumstances of the case, in the interest of justice and equity the petitioner prays the Hon'ble Court to kindly consider the aforementioned facts and be pleased to: (I) admit the writ petition; (II) issue writ of certiorari calling upon the opposite parties to send all paper and documents in issuing show cause notice dated 26.09.2025 in Annexure-1 and passing order dated 29.12.2025 in Annexure-2 so that the same can be examined by the Hon'ble Court. (III) issue writ of mandamus directing the opposite parties to show cause why the show cause notice dated 26.09.2025 in Annexure-1 and passing order dated 29.12.2025 in Annexure-2 shall not be quashed and if the opposite parties fail to show cause or show insufficient cause, make the said rule absolute. (IV) issu....
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....apatra" assigned with GSTIN: 21AGEPM8738K1Z5 to continue with the proprietorship business to be run by one of the legal heirs, namely Jyoti Ranjan Mohapatra. For the said purpose application for non-core amendment being made, it was approved by the Goods and Services Tax Organisation on 20.06.2023. The petitioner filed returns in Form GSTR-3B for the tax periods April, May and June of 2023 during the Financial Year 2023-24 disclosing "Manoranjan Mohapatra" as Legal Name and "M/S. J.S. ENTERPRISERS" as Trade Name using GSTIN: 21AGEPM8738K1Z5. 2.3. Upon scrutiny of returns under Section 61 of the GST Act, 2017, the Superintendent, opposite party No. 1, issued notice in Form GST ASMT-10 dated 28.05.2025 read with Rule 99 of the GST Rules in the name of deceased "Manoranjan Mohapatra" who died on 24.11.2022 and said fact was within the knowledge of the Goods and Services Tax Organisation being intimated on 25.01.2023. No reply could be filed in response to such notice by the legal heir/petitioner as the notice in Form GST ASMT-10 in the common portal was issued in the name of the deceased-Late Manoranjan Mohapatra. 2.4. In consequence thereof, Demand-cum-Show Cause Notice under S....
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.... 73 of the GST Act, said Authority passed an Order-in-Original bearing No.AC/CTC-I/GST-69/2025, dated 29.12.2025 (Annexure-2) in the name of "Manoranjan Mohapatra", who is dead since 24.11.2022. 2.8. Alleging that the proceeding initiated by issue of Show Cause Notice and passing the Order-in-Original under Section 73 of the GST Act in furtherance thereto by the Assistant Commissioner, GST and Central Excise, Cuttack-I Division, Cuttack (opposite party No. 2) are void ab initio and non est in the eye of law. As such they being untenable in law, the instant writ application has been filed with prayer to quash not only the Show Cause Notice(s) (Annexure-1) and the Order-in-Original (Annexure-2). 3. The short issue involved in this matter is whether the Assistant Commissioner of Central Goods and Services Tax and Central Excise, Cuttack-I Division, Cuttack is competent to initiate proceeding under Section 73 by issue of Show Cause Notice in Form GST DRC-01 dated 26.09.2025 accompanied by Demand-cum-Show Cause Notice dated 25.09.2025 (Annexure-1) and complete said proceeding by passing Order-in-Original dated 29.12.2025 (Annexure-2), thereby raising a demand against a dead person....
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.... Counsel representing the opposite parties per contra drawing attention of this Court to the provisions of Section 93 of the GST Act, vehemently opposed the submissions made by Sri Prakash Kumar Jena, learned Advocate and he would urge that since Show Cause Notice in GST DRC-01 dated 26.09.2025 along with Demand-cum-Show Cause Notice dated 25.09.2025 and the Order-in-Original dated 29.12.2025 were passed by statutory authority, no infirmity can be imputed against the Assistant Commissioner, GST and Central Excise, Cuttack-I Division, Cuttack. 5.1. Expanding his argument further it is urged that since the petitioner has been continuing with the business using the same registration number being GSTIN: 21AGEPM8738K1Z5, as he is one of the legal heirs, it cannot be said that the demand raised upon participation of the petitioner is non est and void. Had the petitioner been sanguine about his rights and liabilities under the GST Act and Rules framed thereunder, it was open for him to contest the Show Cause Notice/Demand-cum-Show Cause Notice along with the Order-in-Original before the competent Authority by taking recourse to alternative forum available under the said statute. 6. ....
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....plication for rectification of orders dated 16.03.2026 clearly speaks out that Sri Jyoti Ranjan Mohapatra, legal heir of proprietor of M/s. J.S. Enterprisers, prayed for rectification of Order dated 29.12.2025 (Annexure-9). 7.3. Minute scrutiny of above documents evinces that the information regarding death of Manoranjan Mohapatra was within the knowledge of the Authority concerned. Notwithstanding the same, Show Cause Notices at Annexure-1 were issued in the name of "Manoranjan Mohapatra" describing him as proprietor of M/s. J.S. Enterprisers on 25/26.09.2025. Furthermore, the Order-in-Original dated 29.12.2025 (Annexure-2) reflects as follows: "2.0 M/s. J.S. Enterprisers, Proprietor: Manoranjan Mohapatra located at Adaspur, Niali Road, Cuttack, Odisha - 754 011 ... holder of GSTIN No. 21AGEPM8738k1Z5 ..." 7.4. It is manifest from the above discussion that even though the GST Organisation was fully aware that the proprietor of M/s. J.S. Enterprisers was dead, the authority concerned issued not only show cause notice but also passed Order-in-Original against a dead person. 7.5. It may be worthwhile to have reference to following observations made in Savita Kapila ....
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....edent to the impugned notice being valid in law. [See Sumit Balkrishna Gupta Vrs. Asst. CIT, (2019) 414 ITR 292 (Bom) = (2019) 2 TMI 1209 (Bombay High Court)]. ... Consequently, in view of the above, a reopening notice under section 148 of the Act, 1961 issued in the name of a deceased-assessee is null and void. ... As in the present case proceedings were not initiated/pending against the assessee when he was alive and after his death the legal representative did not step into the shoes of the deceased-assessee, Section 159 of the Act, 1961 does not apply to the present case. Section 159 of the Act, 1961 applies to a situation where proceedings are initiated/pending against the assessee when he is alive and after his death the legal representative steps into the shoes of the deceased-assessee. Since that is not the present factual scenario, Section 159 of the Act, 1961 does not apply to the present case. ... There is no statutory requirement imposing an obligation upon legal heirs to intimate the death of the assessee. This court is of the view that in the absence of a statutory provision it is difficult to cast a duty upon the legal representatives to in....
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....entences recorded in the Order-in-Original: "Shri Sruti Ranjan Swain, Accountant and authorised representative of M/s. J.S. Enterprisers (noticee) attended the personal hearing in virtual mode on dated 17.11.2025. ***" Therefore, he submitted that having participated in the proceeding, the petitioner cannot avoid the liability as determined and contest the demand raised in the Order-in-Original and contend that the demand gets wiped out despite the fact that the same is issued in the name of the deceased proprietor. This Court cannot accede to such submission of the learned Junior Standing Counsel inasmuch as the petitioner in the present case has intimated the fact of death of the proprietor of M/s. J.S. Enterprisers and subsequent events, like issue of Registration Certificate in favour of partnership firm namely M/s. J.S. Enterprisers and non-core amendment being carried out in the Legal Name/Trade Name of Manoranjan Mohapatra, did occur prior to issue of Show Cause Notice vide Annexure-1. Being conscious, the Assistant Commissioner could not have proceeded with the adjudication process against the dead person. 7.7. The aforesaid stance of the learned Junior Stand....
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....egal representative or where the business is discontinued, however, the provision does not deal with the fact as to whether the determination at all can take place against a deceased person and the said provision cannot and does not authorise the determination to be made against a dead person and recovery thereof from the legal representative. 8. Once the provision deals with the liability of a legal representative on account of death of the proprietor of the firm, it is sine qua non that the legal representative is issued a show cause notice and after seeking response from the legal representative, the determination should take place. 9. In view thereof, the determination made in the present case wherein the show cause notice was issued and the determination was made against the dead person without issuing notice to the legal representative, cannot be sustained." iii. Anil Kumar Vrs. State of Punjab, CWP No.5041 of 2025 (O&M), decided on 21.02.2025 reported at 2025 (97) GSTL 185 (P&H): "The petitioner is aggrieved by the impugned show cause notice dated December 19, 2023 (Form GST DRC-01), issued under Section 73 of CGST Act, 2017, by respondent....
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.... Accordingly, she submits that the impugned show cause notice(s) and the consequential orders be deemed to have been withdrawn/re-called. That being so, learned counsel for the petitioner submits that let the petition be disposed of in terms of the statement made by learned Deputy Advocate General, Punjab. In the wake of the position sketched out above, as also the statements of learned counsel for the parties, the petition is accordingly disposed of. This Court is sanguine that the competent authority shall re-visit the matter in issue in the right earnest, and pass a comprehensive order assigning reasons in support thereof. However, it is made clear that this order shall not constitute any expression of opinion on the merits of the case of either party, for, as indicated above, the competent authority shall examine the concerns/grievances of the petitioner, strictly in accordance with law" iv. Baratam Satish Vrs. Joint Commissioner of Central Tax, Writ Petition No.6029 of 2025, decided on 24.12.2025 reported at 2025 SCC OnLine AP 5209: "The petitioner is the son of Late B. Kameswara Rao, who was the registered person under the provisions of the....
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.... 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." 7.9. There is no dispute that Manoranjan Mohapatra, proprietor of M/s. J.S. Enterprisers expired on 24.11.2022 and such fact was made known to the GST Organisation even prior to issue of Summary Show Cause Notice in Form GST DRC-01, dated 26.09.2025 and Demand-cum-Show Cause Notice dated 25.09.2025 (Annexure-1) and Order-in-Original dated 29.12.2025 (Annexure-2) was passed despite being conscious of the fact that such order is being made against a dead person. In view of provisions of Section 93 of the GST Act and bearing in mind the afore-noted decisions, the action of the Assistant Commissioner of GST and Central Excise, Cuttack-I Division, Cuttack cannot be defended and the notice and the order against a dead person cannot be sustained as they are rendered non est in the eye of law. The Show Cause Notice as well as the Order-in-Original, being inexplicable, is liable to be set aside. 8. Ergo, s....