ITO, OOTY vs. (LATE) SHRI BYRE GOWDER SRIMANTAN, OOTY

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ITA 2596/CHNY/2016Status: DisposedITAT Chennai26 April 2018AY 2010-116 pages

In favour of the assessee: the Revenue's appeal was dismissed. From the AI summary of this appeal.

AI SummaryDismissed

What did the Tribunal hold?

The Tribunal held that an assessment order passed against a dead person is a nullity and not rectifiable. The appeal filed against a dead person is also invalid.

What were the facts?

The Revenue filed an appeal against a deceased assessee. The assessee's legal heir participated in the assessment proceedings. The Revenue later attempted to rectify the appeal to include the legal heir's name.

What were the issues?

Whether an assessment order passed against a deceased person is valid and rectifiable, and whether an appeal filed against a dead person can be amended.

Which sections of the Income-tax Act were involved?

Section 154

AI-generated summary — verify with the full judgment below

Cases cited in this judgment(1)Show list

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Income Tax Appellate Tribunal, ‘A’ BENCH, CHENNAI

Before: SHRI N.R.S. GANESAN & SHRI A. MOHAN ALANKAMONY

For Respondent: Shri AR.V. Sreenivasan, JCIT
Hearing: 03.04.2018Pronounced: 26.04.2018

Heard together (2 matters)

ITA No.3063/Chny/2016
ITA No.2596/Chny/2016

Read from the judgment's own cause title. This page is filed under one of them.

आदेश /O R D E R

PER N.R.S. GANESAN, JUDICIAL MEMBER:

1.

Both the appeals of the assessee and Revenue are directed against the order of the Commissioner of Income Tax (Appeals) -3, Coimbatore, dated 27.05.2016 and pertain to assessment year 2010-11. Since common issue arises for consideration in both the appeals, we heard both the appeals together and disposing of the same by this common order.

2.

There was a delay of 4 days in filing appeal by the Revenue.

The Revenue has filed a petition for condonation of delay. We have heard the Ld. Departmental Representative and the Ld.counsel for the assessee. We find that there was sufficient cause for not filing the appeal before the stipulated time. Therefore, we condone the delay and admit the appeal.

3.

Let’s first take Revenue’s appeal in I.T.A.

No.2596/Chny/2016.

4.

Shri AR.V. Sreenivasan, the Ld. Departmental Representative, submitted that in the course of assessment proceeding, the assessee Shri Byre Gowder Srikantan expired and the notice of hearing was served on the legal representative Shri S.

Subramani. The Ld. D.R. further submitted that the legal representative has participated in the assessment proceeding.

However, the Assessing Officer while passing the order has not referred the legal representative’s name. Instead, the order was passed against the dead person. According to the Ld. D.R., since the legal representative participated in the proceeding before the Assessing Officer, merely because the deceased assessee’s name was referred in the assessment order, it cannot be said that the assessment order is null and void. The Ld. D.R. placed his reliance on the judgment of Madhya Pradesh High Court in Smt.

Kaushalyabai v. CIT (1999) 238 ITR 1008.

5.

On the contrary, Shri S. Sridhar, the Ld.counsel for the assessee, submitted that on identical circumstances, this Tribunal examined the issue in Shri M. Hemanathan v. CIT in I.T.A.

No.1286/Mds/2014. This Tribunal found that the order passed against the dead persons is nullity in law and it cannot stand. Since the assessee was no more on the date of passing of order, according to the Ld. counsel, the Assessing Officer cannot even rectify the order by including the name of the legal heir.

Moreover, while filing appeal before this Tribunal in Form No.36, the Revenue filed the appeal against the dead person knowing fairly well that Shri Byre Gowder Srikantan is not in existence at all.

According to the Ld. counsel, having filed the appeal against the dead person, the Revenue cannot rectify the error committed while filing the appeal against the dead person before this Tribunal.

Therefore, according to the Ld. counsel, the appeal filed by the Revenue cannot stand in the eye of law.

6.

We have considered the rival submissions on either side and perused the relevant material available on record. As rightly submitted by the Ld.counsel for the assessee, the appeal before this Tribunal was filed against Shri Byre Gowder Srikantan on 06.09.2016. Subsequently, the Revenue filed the revised Form No.36 as if the appeal was against Shri Subramani Srikantan, son of Shri Byre Gowder Srikantan. The question arises for consideration is having filed the appeal against the dead person, namely, Shri Byre Gowder Srikantan, can the Revenue rectify the defect in the cause title and make it an appeal against the legal heir of the deceased assessee? This Tribunal in the case of Shri M.

Hemanathan examined this issue elaborately and found that the error committed by the Revenue is not rectifiable error. The Revenue filed an appeal before the High Court against the order of this Tribunal in Shri M. Hemanathan (supra). The Madras High Court, after considering various case laws on the subject, found that the mistake committed by the Revenue is not rectifiable one.

Therefore, the order passed against the dead person or the appeal filed against the dead person is not a valid one.

7.

In view of the judgment of Madras High Court in the case of Shri Hemanathan (supra), this Tribunal is of the considered opinion that the judgment of Madhya Pradesh High Court in the case of Smt. Kaushalyabai (supra) may not be applicable to the facts of the case. Therefore, this Tribunal do not find any reason to interfere with the order of the CIT(Appeals) in and accordingly the same is confirmed.

8.

Now coming to the assessee’s appeal in I.T.A.

No.3063/Chny/2016, the assessee has filed appeal against the order passed by the CIT(Appeals) under Section 154 of the Income- tax Act, 1961 (in short 'the Act'). Since the order passed by the CIT(Appeals), which is the subject matter in I.T.A.

No.2596/Chny/2016 is confirmed by this Tribunal, the appeal filed by the assessee becomes infructuous. Accordingly, the assessee’s appeal also stands dismissed.

9.

In the result, both the appeals of the assessee and Revenue stand dismissed.

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