BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03.09.2024 CORAM THE HONOURABLE MR.JUSTICE MOHAMMED SHAFFIQ W.P(MD)No.20626 of 2024 and W.M.P(MD)No.17484 of 2024 T.Nigil ... Petitioner Vs.

1.The Commissioner of GST & Central Excise (Appeals), Office of the Commissioner of GST & Central Excise (Appeals), Circuit House, C.R.Building, P.T.Rajan Road, Bibikulam, Madurai-625 002.

2.The Commissioner of GST & Central Excise, Office of the Commissioner of GST & Central Excise, C.R.Building, P.T.Rajan Road, Bibikulam, Madurai-625 002.

3.The Additional / Joint Commissioner of GST &

Central Excise, Office of the Additional / Joint Commissioner of GST & Central Excise, C.R.Building, Tractor Street, NGO "A" Colony, Tirunelveli-627 007.

4.The Superintendent of GST & Central Excise, Office of the Superintendent of GST & Central Excise, Nagarcoil Range, 48/1-4, First Floor, Shivaraj Building, Tower Junction, Nagarcoil-629 001. ... Respondents Prayer : Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari, to call for the records relating to the impugned order in Appeal No.13/2023-MDU-GST-COMMR-APP, dated 30.10.2023 passed by the first respondent and quash the same and pass such further or other as this Court.

For Petitioner : Mr.B.Vijay Karthikeyan For Respondents : Mr.R.Gowri Shankar Senior Standing Counsel

ORDER

The present writ petition has been filed challenging the order in appeal No.13 of 2023, dated 30.10.2023, whereby, the order in original, dated

02.01.2023 was affirmed.

2. The limited ground of challenge is that the entire adjudication /

assessment proceeding commencing with issuance of show cause notice, dated 28.03.2022 has been made in the name of the petitioner's father, who had died on 19.05.2021. The death of the petitioner's father was also brought to the notice of the respondent. However, the respondent proceeded to pass the impugned order of adjudication in the name of the dead person. It was submitted that any assessment made in the name of a dead person is a nullity. Though specific grounds have been raised before the appellate authority as to the impermissibility of making assessment in the name of a non-existing entity/person, the same stood rejected by placing reliance on Section 93(1) of the Central Goods and Service Tax Act, 2017, which 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, interest or penalty has been determined before his death but has remained unpaid or is determined after his death."

3. A reading of Section 93 would show that Clause (a) only provides that if a business carried on by the person is continued by the legal representative or any other person after his death, such legal representative or other person, who continues, shall be liable to pay tax, interest or penalty, while Clause (b) provides that 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. The above provision does not appear to dispense with the need