TaxTMI 
TaxTMI 
2026 (8) TMI 1844
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....ity, propriety and sustainability of the Order in Original dated 21.01.2025 passed under Section 74 of the Central Goods and Services Tax Act, 2017, (hereinafter referred to as the CGST Act, 2017) whereby the demand of Rs. 38,44,674/- along with the applicable interest and penalty has been raised for the tax period from July 2017 to September 2021 pertaining to the Financial Years 2017-18 to 2020-2021. 2. The Learned Counsel appearing for the petitioners submit that a Show Cause Notice has been issued under Section 74 of the CGST Act dated 08.03.2022 in the name of a deceased person, namely, Late Haradhan Pan, who expired on 20.05.2021. 3. It is further submitted that after the death of the deceased assessee, his wife, the petitioner ....
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....a, Legal Heir of the predeceased Ashok Saha Vs. State of West Bengal & Ors in WPA 5510 of 2023. iv. Gurnam Singh (Dead) Trhough Legal Representatives & Ors. Vs Gurbachan Kaur (Dead) by Legal Representatives reported in (2017) 12 Supreme Court Cases 414. 8. The petitioner further places reliance upon Section 2(84) of the CGST Act to demonstrate that the definition of a 'person' does not include a dead person. 9. It is further submitted that determination of tax can be made only under Sections 73 of 74 of the CGST Act and such determination must be against a living person or his legal representative and not against a dead person. 10. The Learned Counsel appearing on behalf of the petitioner places reliance upon several judgm....
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....he assessee, the same can be determined after his death against his legal heirs. Since in the instant case, the tax was not determined prior to death, the department contends that the question of making payment does not stand obliterated. 13. The Learned Counsel draws the attention of this Court to Rules 19 and 20 of the GST Rules, 2017 to contend that the petitioner made an application for cancellation beyond the statutory period prescribed therein. The application for cancellation of registration with effect from 10.05.2022 was made at a very belated stage. Such belated application cannot be accepted to efface the allegations of issuing a notice in the name of a dead person. 14. The Learned Counsel places reliance upon a judgment of....
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....iance upon Section 93(1)(b) of the CGST Act which is reproduced herein below "(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." 17. It is further submitted that the Order in Original is sustainable in law since the application for cancellation of registration has been filed beyond the prescribed period mentioned in the statute. 18. Having heard the parties at length and upon perusal of the materials on record, this Court has taken into consideration all the releva....
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....f the above, the Show Cause Notice dated 08.03.2022 for the tax period from July 2017 to September 2021, the Order in Original dated 21.01.2025 and the recovery notice dated 08.06.2024 are hereby quashed and set aside. 24. The respondent No. 1 is directed to issue a fresh Show Cause Notice in the name of the legal heirs of the deceased person as disclosed in paragraph 2(a) of the Supplementary Affidavit which is reproduced below:- 2. a) That Haradhan Pan died on 20.05.2021, your petitioner is the wife of said Late Haradhan Pan and there are two other legal heir, son namely Mr. Barun Pan (address is 25/14/1, L. Road, P.O. Netajigarh, Thana Liluah, Howrah, West Bengal, India 711108), married daughter Smt. Kakoli Manna(Pan) [address is 7....
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....utation of the limitation shall be excluded at the time of hearing. 29. This Court further observes that Learned Departmental Counsel confuses between charging provision and machinery provision. Section 93(1) is a charging provision which says legal heirs is liable to pay tax due from deceased, to extent estate capable. But how that liability to be determined being machinery not provided in Section 93. The machinery remains Section 73, 74, which requires issuance of show cause notice to person liable. Therefore, correct machinery is to issue Show Cause Notice to legal heirs, in his own name describing him as legal heirs of deceased and to determine the liability. Department cannot issue Show Cause Notice to deceased and then direct the l....