Abdul Kader M v. State Tax Officer: Remand Granted for Deceased Assessee and Disputed Extensions

The Issue

Whether a GST assessment order for FY 2018-19 can be sustained if passed in the name of a deceased taxpayer and based on limitation extensions (Notifications 9/2023 and 56/2023) previously declared illegal by the High Court.

The Facts

The Legal Challenge: The petitioner challenged Notifications Nos. 09/2023 and 56/2023, which extended the deadlines for Section 73 orders. These notifications were recently struck down as illegal by the Madras High Court in Tata Play Ltd. v. UOI [2025] 176 taxmann.com 357 because they were issued without the mandatory prior recommendation of the GST Council.
Assessment of a Dead Person: The final tax demand was issued in the name of the petitioner’s father, who passed away shortly after the order was made. However, because the father was ill/deceased during the notice period, the family was unable to respond.
Natural Justice Breach: The petitioner (legal heir) argued that the order was passed without a fair hearing or a chance to file a reply, effectively punishing them for the father’s inability to participate.

The Decision

Limitation Validated via SC: The Court noted that while the specific 2023 notifications were “illegal” under Section 168A, the overall limitation period was still validly extended by the Supreme Court’s COVID-19 exclusion orders (Article 142). Therefore, the proceedings themselves were not “time-barred” in the eyes of the Court.
Nullity of Posthumous Orders: However, the Court reaffirmed that an assessment order passed against a deceased individual is non-est in law (has no legal existence).
Opportunity Restored: To satisfy the principles of Natural Justice, the Court set aside the assessment order.
Outcome: The matter was remanded to the authorities. The petitioner, as the legal heir, was granted four weeks to file a fresh reply to the original Show Cause Notice, after which the Department must conduct a personal hearing and pass a new order on merits. In favour of assessee.

HIGH COURT OF CALCUTTA

Chatterjee Concern

State of West Bengal^*

Om Narayan Rai, J.

WPA No. 6739 of 2025

JANUARY 20, 2026

Himangshu Kumar Ray, Subhasis Podder, Sushant Bagaria and Gaurav Chakrborty for the Petitioner. Swapan Kumar Dutta, Tanoy Chakraborty and Saptak Sanyal for the Respondent.

ORDER

1. Affidavit of service as well as supplementary affidavit filed in Court today are taken on record.

2. Copy of the said supplementary affidavit has already been served upon the respondents/GST authorities.

3. This writ petition takes exception to an order dated May 9, 2024 passed by the appellate authority under Section 107 of the West Bengal Goods and Services Tax Act, 2017/Central Goods and Services Tax Act, 2017 (hereinafter ‘the said Act of 2017′) whereby the petitioners’ appeal against an order dated March 25, 2023 passed under Section 73 of the said Act of 2017 has been dismissed ex-parte.

4. By the adjudication order dated March 25, 2023, the petitioner no. 1 (hereafter the petitioner) was held liable on account of excess claim of ITC as well as interest and penalty. The petitioner carried the said matter in appeal before the appellate authority. The appellate authority fixed August 03, 2023 as the first date for hearing. On the said date the petitioner appeared through its authorized representative and prayed for an adjournment. Such adjournment was granted and October 05, 2023 was fixed as the next date. On the said date, the petitioner remained unrepresented. The petitioners have sought to explain the reason behind the failure of the petitioners to be represented before the appellate authority by way of a supplementary affidavit filed in Court today. From the supplementary affidavit it appears that the petitioners’ tax consultant failed to appear on the appointed day inasmuch as he was seriously indisposed, being a patient of prostate cancer.

5. Since the petitioner remained unrepresented on the adjourned date, the appellate authority proceeded to pass an ex-parte order. It is noticed that such order was passed after about seven months from the adjourned date. Hence the present writ petition.

6. Mr. Ray, learned advocate appearing for the petitioners submits that the appellate order is absolutely unsustainable. It is submitted that although the petitioner could not be represented on the second day (i.e. the day fixed upon accepting the petitioners’ prayer for adjournment on the first day) yet, when the appellate authority did not dispose of the appeal on the said day or any day immediately thereafter, the appellate authority ought to have given the petitioner at least one more opportunity to present its case.

7. It is further submitted that the appellate authority has increased the amount of penalty from Rs.1,000/- (Rupees One thousand only) to Rs.10,000/- (Rupees Ten thousand only) without granting any opportunity of hearing to the petitioner on the said ground. It is submitted that the same is in the teeth of section 107(11) of the said Act of 2017.

8. Mr. Ray relies on a judgment of the Hon’ble Supreme Court in the case of Rafiq v. Munshilal 1981 (2) SCC 788 in support of his contention that a litigant should not suffer for the fault of his Advocate.

9. Mr. Sanyal, learned advocate appearing for the respondents/GST authorities submits that the order impugned has been passed in accordance with law and the same calls for no interference.

10. Heard learned advocates appearing for the respective parties and considered the material on record.

11. It is evident that the appellate authority has not passed the order impugned on any date proximate to the date which was fixed for hearing upon granting adjournment to the petitioner.

12. From the supplementary affidavit and the documents annexed thereto it is evident that the tax consultant of the petitioners has been under medical supervision for prostate ailments and had also been admitted to the hospital for a few days in the beginning of the year 2023.

13. In such view of the matter, it may not be unreasonable to believe that such person missed to attend the appeal hearing fixed on October 05, 2023. That apart, when the appellate authority has increased the quantum of penalty, it was incumbent on the appellate authority to afford the petitioners a reasonable opportunity of showing cause against the proposed enhancement of penalty. It might well have been so that if such notice was given, the petitioners might have appeared and the case may not have been required to be proceeded with ex-parte. However such notice has not been given, in the case at hand. It is indeed a violation of the provisions of the first proviso to section 107(11) of the said Act of 2017.

14. For all the reasons aforesaid the principles of natural justice do not appear to have been fairly complied with in the case at hand. Only on such score, the appellate order dated May 9, 2024 impugned herein stands set aside.

15. The matter is remanded to the file of the appellate authority for a fresh decision on merits. As requested by the petitioners it will be open to the petitioners to file additional reply before the appellate authority which, if filed, shall also be considered by the appellate authority while hearing the appeal.

16. It is clarified that this Court has not gone into the merits of the petitioners’ case and all points are left open, to be decided by the appellate authority in accordance with law.

17. With the above observations, WPA 6739 of 2025 stands disposed of.

18. Urgent photostat certified copy of this order, if applied for, be supplied to the parties on urgent basis after completion of necessary formalities.