Section 93 Saves GST Liability, but Not a Notice to the Dead

The First Requirement Is a Living Noticee

The Orissa High Court’s decision in M/s J.S. Enterprisers, represented by Sri Jyoti Ranjan Mohapatra, v. The Superintendent, Central GST and CX Division, Cuttack, and Another, 2026-VIL-733-ORI, W.P.(C) No. 13452 of 2026, dated 22.07.2026, addresses a foundational requirement of GST adjudication. The question was not whether tax liability can survive the death of a proprietor. The real question was whether the Department can initiate and complete adjudication proceedings by issuing a show cause notice and passing an Order-in-Original in the name of a proprietor who had already died. The Court answered this question in clear terms. A dead person cannot be made the noticee for determination of GST liability.

Late Sri Manoranjan Mohapatra carried on business as proprietor of M/s J.S. Enterprisers under GSTIN 21AGEPM8738K1Z5. He died on 24.11.2022. Thereafter, the legal heirs took steps to continue the business. A partnership firm was constituted under the same trade name, and fresh GST registration was obtained. A non-core amendment was approved on 20.06.2023, indicating Sri Jyoti Ranjan Mohapatra as the legal heir. Despite this, the Department issued a show cause notice and a demand-cum-show cause notice dated 25/26.09.2025 in the name of Late Manoranjan Mohapatra for Financial Year 2021-22. The Order-in-Original dated 29.12.2025 was also passed in the name of the deceased proprietor.

This is where the judgment becomes important for senior officers and professionals. GST is registration-driven and portal-driven, but adjudication remains person-driven in law. A GSTIN, trade name, or old portal record cannot replace the legal requirement that proceedings must be addressed to a person who exists in law or to a person who is legally answerable in the correct capacity. Jurisdiction begins with the correct noticee.

Section 73 Is Not Merely a Demand Formula

Section 73 of the CGST Act, 2017 deals with determination of tax not paid, short paid, erroneously refunded, or ITC wrongly availed or utilised in non-fraud cases. It is not merely a provision for computing demand; it is a complete procedure for determining liability.

The provision requires notice to the “person chargeable with tax”. That person must be legally capable of receiving the notice, filing a reply, producing records, seeking hearing and contesting the proposed demand. A deceased proprietor cannot do any of these things. Therefore, a Section 73 notice issued in the name of a dead proprietor fails at the very stage where jurisdiction is supposed to arise.

The Person Chargeable With Tax Must Be Legally Capable of Answering

The expression “person chargeable with tax” in Section 73 cannot be read mechanically from old registration records. The notice must be addressed to a person who is legally capable of answering the demand. After death, the deceased proprietor cannot participate in adjudication.

This is especially important in proprietorship cases because the business is closely linked with the individual proprietor. Once the proprietor dies, the officer must determine whether the business has continued through a legal representative or another person, or has been discontinued. The correct statutory route depends on that finding. In either case, the Department must identify the correct living person or legal representative before issuing notice

A Dead Proprietor Is Not a Clerical Mistake

A notice to a dead person is not a minor defect, such as a spelling error or the wrong address. It goes to the root of jurisdiction because notice is the foundation of adjudication. If the foundation is addressed to a person who no longer exists, the order built on it cannot stand.

Issuing notice to the correct person is a condition precedent for valid proceedings. Even a strong revenue case must begin with a lawful notice. Jurisdiction is not a technical formality; it is the legal authority to act

Section 93 Preserves Liability After Death, but Through the Correct Route

Section 93 of the CGST Act, 2017  is central to this judgment. It sets out special provisions for liability to pay tax, interest or penalty in certain cases. Where a person liable to pay tax, interest or penalty dies, Section 93 creates two broad consequences. If the business is continued after death by the legal representative or any other person, that representative or other person becomes liable to pay tax, interest or penalty due from the deceased. If the business is discontinued, the legal representative becomes liable out of the estate of the deceased, and only to the extent to which the estate is capable of meeting the charge.

This provision is designed to prevent tax liability from vanishing merely because the taxpayer has died. It protects revenue by recognising that liability may survive death in appropriate cases. At the same time, it protects legal representatives by defining the manner and extent of such liability. It does not make legal heirs unlimited substitutes in every case.

The crucial point is that Section 93 deals with liability after death. It does not say that proceedings may continue in the name of the deceased person. It does not authorise the Department to issue a show cause notice to the deceased proprietor. It does not dispense with the requirement to give notice to the legal representative or the person continuing the business. Therefore, Section 93 is not a validating provision for defective notices. It is the proper statutory pathway for proceeding after death.

Liability and Determination Are Two Different Stages

A major contribution of the judgment lies in distinguishing between liability and determination. Liability may exist under law, but it must still be determined through a valid proceeding. Section 93 may indicate who can be made liable after death, but it does not itself determine the amount payable. Determination still requires notice, an opportunity to reply, consideration of the reply, and a reasoned order.

For example, if the Department believes that tax for Financial Year 2021-22 was short paid by the deceased proprietor’s business, it may examine whether the business was continued after death. If it was continued by a legal representative or other person, the notice must be issued to that person in the proper capacity. If the business was discontinued, the notice must be directed to the legal representative of the deceased's estate. In both situations, the person against whom liability is proposed must be told why liability is being proposed and given a meaningful opportunity to defend.

This is why the High Court rejected the idea that Section 93 could support proceedings in the name of the dead proprietor. Section 93 may preserve the Department’s remedy, but it cannot cure an invalid initiation. The route exists, but the Department must walk it correctly.

Prior Knowledge of Death Made the Proceeding Indefensible

The Department’s case was weakened because it already knew about the proprietor’s death. The fresh registration of the partnership firm and the approved non-core amendment showed that the Department had information about the legal heir and continuation of business before issuing the notice and Order-in-Original.

Once death was known, the authority could not rely only on the old registration name or portal details. If the transactions of Financial Year 2021-22 were to be examined, notice had to be issued to the legal representative or the person continuing the business. A portal record cannot override the legal fact that the original proprietor no longer exists.

Participation Cannot Revive a Void Notice

The Department argued that the petitioner or authorised representative had participated in the proceedings. This argument was not accepted. Participation cannot cure a fundamental jurisdictional defect when the notice and order are issued in the name of a deceased person. Legal heirs may sometimes respond to protect the business record or clarify the position, but such a response cannot validate an otherwise void proceeding.

The petitioner described himself as a legal heir. Therefore, if the Department intended to determine liability against him, notice had to be issued to him in that capacity. A legal heir’s attempt to respond cannot convert a notice against a deceased proprietor into a valid notice against a living person. The law requires a proper beginning with the correct noticee.

This principle is important because otherwise any accidental or casual response by a legal heir could be misused to validate a defective proceeding. The correct approach is simple. If the Department wants to proceed against the legal heir, it must say so in the notice. The capacity in which the person is being proceeded against must be clear.

The Same Jurisdictional Rule Runs Across Tax Laws

The Orissa High Court referred to several decisions dealing with notices and orders against deceased persons. Some of these cases arose under income-tax law, but the underlying principle is equally relevant under GST. A jurisdictional notice must be issued to a living, legally competent person. Where the foundational notice is invalid, the resulting order also fails.

The Court referred to Savita Kapila v. CIT, (2020) 426 ITR 502 = 2020 SCC OnLine Del 2540 = 2020-VIL-108-DEL-DT, as noticed in Sripathi Subbaraya Manohara v. CIT, (2021) 436 ITR 469 = 2021 SCC OnLine Del 3701 = 2021-VIL-172-DEL-DT. The principle flowing from these decisions is that if the notice is issued to a deceased person, the assumption of jurisdiction fails. If the notice goes, the assessment or adjudication order built upon it must also go.

The judgment also referred to Sumit Balkrishna Gupta v. Assistant Commissioner of Income Tax, (2019) 414 ITR 292 (Bom.) = 2019-VIL-339-BOM-DT, where issuance of notice to the correct person was treated as a condition precedent. Similar support came from Alamelu Veerappan v. ITO, (2018) 12 ITR-OL 95 (Mad.) = 2018-VIL-609-MAD-DT, Rajender Kumar Sehgal v. ITO, (2019) 414 ITR 286 (Del.) = 2018-VIL-611-DEL-DT, and Chandreshbhai Jayantibhai Patel v. ITO, (2019) 413 ITR 276 (Guj.) = 2018-VIL-436-GUJ-DT. These cases reinforce that notice to a deceased person is not a mere mistake, defect or omission.

GST Courts Have Also Preserved This Discipline

These judgments are particularly useful because they address GST-specific issues. In Devendra Kumar Singh v. State of U.P., Writ Tax No.2109 of 2025 = 2025-VIL-1466-ALH = 2025 (99) GSTL 60 (All.) = 2025 SCC OnLine All 8284, dated 08.05.2025, it was held that Section 93 addresses the liability of legal representatives but does not authorise determination of liability against a deceased person. A notice must be issued to the legal representative and an opportunity to respond given before liability is determined.

In Anil Kumar v. State of Punjab, CWP No.5041 of 2025 = 2025 (97) GSTL 185 (P&H), dated 21.02.2025, proceedings initiated against a deceased proprietor were held to be indefensible, and the matter was remitted for fresh action in accordance with law. In Baratam Satish v. Joint Commissioner of Central Tax, W.P. No.6029 of 2025 = 2025-VIL-1435-AP = 2025 SCC OnLine AP 5209, dated 24.12.2025, the Andhra Pradesh High Court explained that Section 93 provides for recovery of dues after death, but assessment must be carried out by involving the representative or the person continuing the business.

The Orissa High Court also referred to Kanakalata Senapati v. Assistant Commissioner of GST and Central Excise, W.P.(C) No.29819 of 2025 = 2026-VIL-57-ORI-ST, dated 15.01.2026. These judgments show a consistent line of reasoning. Tax liability may survive death in the manner provided by law, but proceedings cannot be framed against a person who no longer exists.

Writ Remedy Survives Where Jurisdiction Is Missing

The Department argued that the petitioner should have availed the statutory appellate remedy. Ordinarily, High Courts do not interfere where an effective appeal is available. However, this rule does not apply with the same force when the notice or order is wholly without jurisdiction.

In the present case, the challenge was not merely to the amount of demand or the appreciation of facts. The objection went to the authority’s competence to issue a notice and pass an order against a dead person. Since the defect was jurisdictional, the legal heir was not required to pursue a regular appeal merely to challenge a void proceeding.

This distinction is important for GST litigation. Writ jurisdiction should not be used as a substitute for ordinary appeals. But where the very proceeding is against a non-existing person, the defect is foundational, and the High Court may intervene.

The Department Can Still Proceed Correctly

The judgment does not erase possible tax liability. The notice and Order-in-Original were quashed only because they were issued against a dead person, and the merits for Financial Year 2021-22 were left open.

Since the business was stated to have continued using the same GSTIN, Section 93 may still apply. The Proper Officer may issue a fresh notice to the petitioner representing the legal heirs or legal representatives and proceed in accordance with law. The petitioner may raise all available defences, and the authority must pass a reasoned order.

Legal Heirs Are Not Unlimited Substitutes

Section 93 also limits the exposure of legal representatives. If the business is continued after death, liability may arise against the legal representative or the person continuing it. If the business is discontinued, recovery is limited to the estate of the deceased and only to the extent the estate can meet the demand.

Legal heirs are therefore not automatic unlimited substitutes for the deceased taxpayer. Their liability depends on the statutory facts, and if fresh notice is issued, they may raise all available defences, including limitation, ITC reconciliation, factual errors and the extent of inherited estate.

The Demand Must Reach the Living

Tax liability may survive the death of a proprietor where Section 93 so permits, but adjudication cannot proceed in the name of the deceased. A notice to a dead proprietor is not a harmless mistake; it is a jurisdictional nullity. In GST, the right demand must travel through the right notice, to the right person, in the right capacity.