Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A’’BENCH: BANGALORE
Before: SHRI B. R. BASKARAN & SMT. BEENA PILLAI
The assessee has filed this appeal challenging the order dated 20.9.2017 passed by Ld. CIT(A)-5, Bengaluru and it relates to the assessment year 2013-14. The assessee is aggrieved by the decision of Ld. CIT(A) in upholding the addition of Rs.78,54,981/- made by the A.O. u/s 41(1) of the Income-tax Act,1961 ['the Act' for short].
2. At the outset, we notice that the appeal before us has been filed by legal representative of the assessee named Srihari
Page 2 of 6 Lakshmansa Khoday. In the written submission, it is stated as under: “The Commissioner of Income-tax (Appeals) in his aforesaid order has upheld the order of assessment passed by the Assessing Officer under section 143(3) dated 29.3.2016. A copy of the assessment order dated 29.3.2016 is enclosed herewith and marked as Annexure-II. The order of assessment has been made on 29.3.2016 in the name of Sri K.L. Srihari. Sri K.L. Srihari died on 31.10.2016. During the appeal proceedings Sri K.H. Gurunath was brought on record as legal representative of Sri K.L. Srihari. The appellate order has been mistakenly passed in the name of Sri K.L. Srihari. A letter dated 8.8.2017 was submitted to the Commissioner of Income-tax (Appeals) bringing Sri K.H. Gurunath on record. A copy of the letter dated 8.8.2017 is enclosed herewith and marked as Annexure-III. The appeal before ITAT has been preferred by Sri K.H. Gurunath, as a legal representative.”
3. We notice that the Ld CIT(Appeals) has passed his order on 20-09-2017 in the name of Srihari Lakshmansa Khoday. However has expired on 31.10.2016, i.e., prior to the passing of appellate order by Ld CIT(A). We also notice that the Ld representative of the assessee has informed about death of the assessee to the Ld. CIT(A), vide his letter dated 8.8.2017 filed before Ld. CIT(A). The copy of said letter is placed at page 21 of the paper book. We also notice that the copy of the above said letter bears the seal of the O/o Commissioner of Income tax dated 14th August 2017. For the sake of convenience, we furnish below the scanned the copy of letter furnished before us:-
4. In spite of the above said communication, we notice that the Ld. CIT(A) has passed the order in the name of Sri Srihari Lakshmansa Khoday who was no more on the date when the appeal order was passed by Ld. CIT(A). It is well settled proposition of law that the Page 4 of 6 order cannot be passed on dead person and the proceedings can be continued on his legal representative only as per the provisions of sec.159 of the Act, which read as u nder:- “159. (1) Where a person dies, his legal representative shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased.
For the purpose of making an assessment (including an assessment, reassessment or recomputation under Section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with the provisions of Sub-section (1),— a. Any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal representative from the stage at which it stood on the date of the death of the deceased; b. Any proceeding which could have been taken against the deceased if he had survived, may be taken against the legal representative; and c. All the provisions of this Act shall apply accordingly.
The legal representative of the deceased shall, for the purposes of this Act, be deemed to be an assessee.
Every legal representative shall be personally liable for any tax payable by him in his capacity as legal representative if, while his liability for tax remains undischarged, he creates a charge on or disposes of or parts with any assets of the estate of the deceased, which are in, or may come into, his possession, but such liability shall be limited to the value of the asset so charged, disposed of or parted with….”
Hence, the order passed by Ld. CIT(A) is against the mandate of provisions of sec.159 and accordingly, the same would get vitiated. Accordingly, we are of the view that order of Ld CIT(A) should be considered as non-est in the eyes of law. In that view of the matter, the appeal filed by the assessee before him should be considered as still pending before him.
We notice that the Ld. CIT(A) has dismissed the appeal filed by the assessee before him and hence the assessee has not got any relief from Ld. CIT(A), which has compelled the legal heir of the Page 5 of 6 assessee to file an appeal before the Tribunal. However, since the order passed by Ld. CIT(A) would be non-est in the eyes of law, we cannot proceed upon the appeal filed before us unless a fresh order is passed on the legal representative in accordance with the provisions of sec.159 of the Act. Accordingly, the appeal filed before us is restored to Ld. CIT(A) for the reasons stated above.
Accordingly, we set aside the order passed by Ld CIT(A) and restore all the issues to his file for adjudicating them afresh, after affording him adequate opportunity of being heard to the assessee. We also make it clear that the Ld. CIT(A) should apprise the issues afresh without being influenced by the decision already rendered by Ld CIT(A) earlier in the first round.