$~49 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision : 23.09.2024 + W.P.(C) 11634/2024 & CM APPL. 48366/2024 SMT. USHA GUPTA, WIFE OF LT. SH. SURINDER KUMAR GUPTA (PROPRIETOR OF M/S. S. K. GUPTA AND CO.)

.....Petitioner Through: Mr Jitin Singhal, Advocate.

versus COMMISSIONER OF CGST, DELHI SOUTH COMMISSIONERATE & ANR.

.....Respondents Through: Mr Shubham Tyagi, SSC and Ms Navruti Ojha, Advocate.

CORAM:

HON'BLE MR. JUSTICE VIBHU BAKHRU HON'BLE MR. JUSTICE SACHIN DATTA VIBHU BAKHRU, J. (ORAL

1. The petitioner has filed the present petition, inter alia, impugning a Show Cause Notice dated 01.08.2024 (hereafter the impugned SCN) issued under Section 74 of the Central Goods and Services Tax Act, 2017 (hereafter the CGST Act) to M/s S.K. Gupta & Co., the sole proprietorship concern of one Mr Surender Kumar Gupta.

2. The learned counsel for the petitioner states that Mr Surender Kumar Gupta had expired and the present petition has been filed by his widow.

3. Admittedly, the impugned SCN has been issued to a person who was a deceased taxpayer.

Signature Not Verified

4. The learned counsel for the respondents submits that the petitioner has since been carrying on the business of her deceased husband and therefore, in terms of Section 93 of the CGST Act, the respondents are entitled to initiate the proceedings for recovery of any amount due under the relevant statute from the said concern.

5. It is settled law that the identity of the sole proprietorship concern is not different from that of a sole proprietor. In the present case, a sole proprietor of the concern – M/s S.K. Gupta & Co. – Mr Surender Kumar Gupta, has since expired and therefore, it is relevant in fact, that the impugned SCN has been issued to a non-existent person.

6. Section 93 of the CGST Act is relevant and same reads as under:-

“Section 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 (31 of 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, Signature Not Verified interest or penalty has been determined before his death but has remained unpaid or is determined after his death.

(2) Save as otherwise provided in the Insolvency and Bankruptcy Code, 2016 (31 of 2016), where a taxable person, liable to pay tax, interest or penalty under this Act, is a Hindu Undivided Family or an association of persons and the property of the Hindu Undivided Family or the association of persons is partitioned amongst the various members or groups of members, then, each member or group of members shall, jointly and severally, be liable to pay the tax, interest or penalty due from the taxable person under this Act up to the time of the partition whether such tax, penalty or interest has been determined before partition but has remained unpaid or is determined after the partition.

(3) Save as otherwise provided in the Insolvency and Bankruptcy Code, 2016 (31 of 2016), where a taxable person, liable to pay tax, interest or penalty under this Act, is a firm, and the firm is dissolved, then, every person who was a partner shall, jointly and severally, be liable to pay the tax, interest or penalty due from the firm under this Act up to the time of dissolution whether such tax, interest or penalty has been determined before the dissolution, but has remained unpaid or is