M.HEMANATHAN,GUDIYATHAM vs. DCIT, VELLORE

PDF · subscribers
ITA 1286/CHNY/2014Status: DisposedITAT Chennai11 September 2015AY 2009-105 pages
AI SummaryAllowed

What did the Tribunal hold?

The Tribunal held that an order passed against a dead person is a nullity in the eyes of law. Since the Commissioner passed the order against a deceased assessee without impleading the legal representative, the order cannot stand.

What were the facts?

The Commissioner of Income Tax issued a notice under Section 263 against the assessee. However, the assessee had passed away before the notice was issued and before the impugned order was passed. The assessee's legal heir participated in the proceedings.

What were the issues?

Whether an order passed by the Commissioner under Section 263 against a deceased assessee is valid in law.

Which sections of the Income-tax Act were involved?

Section 263

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “C” BENCH, CHENNAI

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

For Respondent: Shri A.V. Sreekanth, JCIT
Hearing: 21.08.2015Pronounced: 11.09.2015

आदेश /O R D E R

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

1.

This appeal by the Legal Representative of the assessee is directed against the order of the Commissioner of Income Tax, Chennai-VIII, Chennai, dated 21.03.2014 and pertains to assessment year 2009-10.

2.

Ms. Jharna B. Harilal, the Ld. representative for the assessee, submitted that the assessment for the assessment year 2009-10 was completed under Section 143(3) of the Income-tax Act, 1961 (in short 'the Act') by an order dated 23.06.2011. The Administrative Commissioner issued notice under Section 263 of the Act on 06.09.2013 on the ground that the order of the Assessing Officer dated 23.06.2011 is erroneous and prejudicial to the interests of Revenue. Referring to the copy of the letter addressed to the Commissioner on 12.12.2013, the Ld. representative submitted that the assessee Shri M.A. Margesan died on 13.06.2013. This letter was addressed to the Commissioner in response to show cause notice issued by the Commissioner under Section 263 of the Act on 06.09.2013. The power of attorney filed before the Commissioner was also on behalf of the Legal Representative of the deceased assessee Shri M.A. Margesan.

Therefore, the Commissioner was well within his knowledge about the death of the assessee before issuing notice under Section 263 of the Act. In spite of that, the Commissioner passed an order against the assessee, who was no more either on the date of issue of notice on 06.09.2013 or on the date of impugned order on 21.03.2014. According to the Ld. representative, the order passed by the Commissioner against the dead person is nullity in the eye of law. Therefore, it cannot stand.

3.

On the contrary, Shri A.V. Sreekanth, the Ld. Departmental Representative, submitted that the notice was issued to the assessee and the legal heirs of the assessee participated in the proceedings before the Commissioner. Therefore, the order passed by the Commissioner is valid in the eye of law.

4.

We have considered the rival submissions on either side and perused the relevant material on record. Admittedly, the show cause notice dated 06.09.2013 was issued in the name of the deceased assessee Shri M.A. Margesan, who died on 13.06.2013.

The death of the assessee before the date of issue of notice was communicated to the Commissioner by way of letter dated 12.12.2013 in response to the show cause notice issued by the Commissioner. The assessee has placed on record the copy of the Death Certificate issued by Vellore City Municipal Corporation at page 17 of paper-book. As per this certificate, Shri M.A. Margesan died on 13.06.2013. Therefore, as rightly contended by the Ld. representative for the assessee, the assessee Shri M.A. Margesan was not alive either on 06.09.2013, the date on which the show cause notice was issued or on 21.03.2014, the date on which the impugned order was passed by the Commissioner. The Commissioner has not taken any steps to implead the legal representative of the assessee. It is well settled principle of law that an order passed against the dead person is nullity in law and it cannot stand. Since the assessee was no more on the date of passing of the order dated 21.03.2014, the Commissioner cannot rectify the order by including the Legal Heir at this stage. In other words, it is not a rectifiable error. Since the order was passed against the dead person, it cannot stand in the eye of law. Accordingly, the impugned order passed by the Commissioner against the deceased Shri M.A. Margesan is quashed.

5.

In the result, the appeal of the assessee stands allowed.

Order pronounced on 11th September, 2015 at Chennai.

More judgments on Section 263

All 13,616 judgments and leading authorities on Section 263 →

Recent GST High Court judgments

Search GST case law →