ASST.C.I.T., HUBLI vs. SHRI. HARIJIVANDAS J PATADIA, HUBLI

These two appeals by the Revenue are directed against the order passed by the Commissioner of Income-tax (Appeals), for the assessment year 2008-09 and penalty proceedings for assessment year 2010-11 penalty proceedings were filed on 29/9/2015 and the assessee has filed cross objection in the appeal for the AY 2008-2009.

The brief facts of the case are that the assessee was carrying on the business of trading in gold ornaments, stone and bullions etc. and filed its return of income declaring Rs.22,58,130/- for the assessment year 2008-09.

Against the said order of the Assessing Officer, the assessee preferred an appeal before the CIT(A). The learned AR representing on behalf of the assessee appeared on various occasions including on 11/11/2011, 24/112014, 12/2/2015 and 18/2/2015. After hearing the & 1178 /B/15 CO No.10/B/16 3 learned AR, the CIT(A) canceled the order passed by the assessee and granted substantial relief to the assessee.

Aggrieved by the order of the CIT(A), the Revenue is in appeal before us.

It may also be pointed out that in the appeal before the CIT(A), the learned AR represented the assessee on 3/2/2015, 12/2/2015, 18/2/2015, 19/5/205 and 29/5/2015.

Before us, the learned DR vehemently requested for allowing both the appeals and he has drawn our attention to the order and also the grounds raised in the appeal.

We are not reproducing grounds of appeal for the reasons which are mentioned during the inclusion of the order.

The learned AR has submitted that on the last day of hearing, AR was asked to give the details of death particulars and the legal heirs left behind by the assessee viz. Harijivandas J Patadia. In pursuance to the & 1178 /B/15 CO No.10/B/16 4 order, the learned AR representing the legal Heirs of deceased assessee filed certificate of surviving family members of the deceased viz. Harijivandas J Patadiaalong along with an affidavit and in the certificate issued by the Thasildhar. It is mentioned in the certificate that the assessee Harijivandas J Patadia died on 5/11/2014 and particulars of the legal heirs left behind on his demise are mentioned as under:-

We have gone through the record and perused the certificate and the affidavit filed by the learned AR. Appeal bearing No.1177 was preferred by the Revenue against the order dated 29/5/2015 and the ld AR was representing the assessee on various occasions and more particularly on 18/2/2015. Similarly, the learned AR in appeal No.1178 was representing the assessee from 19/1/2015 to 29/5/2015. As it is clear from record that the assessee had died on 5/11/2014 and even after the death, the ld AR/CA has been appearing on behalf of the deceased persons before the CIT(A) and no steps were taken in the appellate proceeding to bring on record the LRs of the deceased Assessee. Ld AR/CA had been representing deceased in the proceeding and as such hearing continued even after the death of assessee on 19/1/2015 to 29/5/2015 in respect of appeals.

It is the solemn duty of the learned AR representing the deceased before the CIT(A) to inform the learned CIT(A) about the death of the & 1178 /B/15 CO No.10/B/16 6 assessee and should have taken steps for brining legal representative/legal heirs of the deceased on record , during the pending proceedings of the appeal. The initial duty have not been discharged by the learned AR appearing for the deceased Harijivandas J Patadia before the CIT and in the absence of the discharging of initial duty, the CIT had passed the order against the Revenue and in favour of the deceased and the said order is now in challenge before us.

In our view, the deceased person cannot be represented by any AR in the appellate proceedings. Ld AR continued to represent deceased person before the CIT(A), without bringing on record the LRs of the deceased, Therefore in our view, the proceedings initiated and concluded on behalf of the deceased person , before the CIT(A) were non-est in the eye of law and, therefore, required to be set aside. Accordingly the order passed by the CIT(A) is directed to be set aside.

In view of the above, we allow both the appeals filed by the Revenue for statistical purposes to the file of CIT(A) and with the direction to implead the legal heirs of the deceased in the array of parties in the appellant proceedings and thereafter decide the appeal after affording the opportunity to new impleaded parties in accordance with law. & 1178 /B/15 CO No.10/B/16 7

In the result, the appeals of the Revenue are allowed for statistical purposes.

Since we are allowing the Revenue appeal, the Cross Objection becomes infructuous and accordingly dismissed.

In the result, the appeals filed by the Revenue are allowed for statistical purposes and the cross-objection filed by the assessee is dismissed.