SH. SURINDER SINGH LEGAL HEIR. OF SMT SITA DEVI,BATHINDA vs. INCOME TAX OFFICER WARD-1(1), BATHINDA
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Income Tax Appellate Tribunal, AMRITSAR BENCH, AMRITSAR
Before: DR. M. L. MEENA & SH. ANIKESH BANERJEE
Per Dr. M. L. Meena, AM:
This appeal has been filed by the assessee against the order of the
Ld. Commissioner of Income Tax (Appeals), Bathinda dated 04.12.2018 in respect of Assessment Year: 2007-08.
2 I.T.A. No. 149/Asr/2019 Surinder Singh v. ITO 2. At the time of hearing on date 16.02.2023, it is brought to our notice
by the Ld. Counsel that the assessee has been died and the legal heirs are
living abroad. Accordingly, the case was adjourned to next date 31.01.2023
with directions to the Ld. AR to bring the legal heirs on record and to file its
power of attorney. However, he failed to bring the legal heirs on record and
furnish its power of attorney stating that the legal heirs are not responding.
It is noticed that more than 90 days are expired and two more opportunities
were given to appellant. Further, the Appellant Representative, though he
could not be taken on record as legal representative in absent of power of
attorney on record. Considering the fact that since, the appeal is 4 years
old and the whereabouts of the diseased appellant’s Legal heirs are not
available on record, it is decided to abet the appeal as per law on hearing
the Ld. DR.
The Ld. DR explained that there is no provision of abetment in
Income Tax Law as per provisions of section 159 of the Act, 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. The death of a person
who is liable to pay tax under the Act would not get extinguished on
3 I.T.A. No. 149/Asr/2019 Surinder Singh v. ITO account of his death. If he dies, his legal representative shall be liable to
pay any tax which would have been liable to be paid by such person if he
had not died. Sub-section (2) makes the position clear that for the purpose
of assessment, reassessment or recomputation under section 147 of the
Act, 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 death of the deceased.
It is clarified that the procedural law before the Tribunal is governed
by the Income-tax (Appellate Tribunal) Rules, 1963. These Rules are
framed by the Appellate Tribunal in exercise of the powers conferred by
sub-section (5) of section 255 of the Act. Rule 26 deals with continuation of
proceedings after the death or adjudication of a party to the proceedings
which reads as under:
"26. Where an assessee whether he be the appellant or the respondent to an appeal dies or is adjudicated insolvent or in the case of a company is being wound up, the appeal shall not abate and may, if the assessee was the appellant, be continued by and if he was the respondent be continued against, the executor, administrator or other legal representative of the assessee or by or against the assignee, receiver or liquidator, as the case maybe: Provided that: (i) The assessee files a revised Form No. 36 duly filled up giving revised name of the party duly verified in the same manner as required by rule 47 of Income-tax Rules, 1962;
4 I.T.A. No. 149/Asr/2019 Surinder Singh v. ITO (ii) The revised Form No. 36 shall specify the appeal number as originally assigned or, in the event of non-availability of such number on the date of filing the appeal shall be mentioned in the covering letter to enable the Registrar to place fresh Form No. 36 in the original file.”
Thus, it is obvious that this is underlying principle of no
abatement upon the death of the assessee equally applies to the
appeal before the Tribunal. The aforesaid rule expressly states, the
appeal shall not abate. It is in inconformity with the principle
underlying section 159 of the Act. However, the Hon’ble Karnataka
High Court in LT.A. No. 9/2000 in the case of the ITO v. T. Parthasarathy
has observed vide paras 3 and 4 of the judgment as follows:
"3. At the time of argument, it is brought to our notice that the assessee has died on March 11, 2006. No legal representatives have been brought on record as on today.
In the circumstance, the appeal stands abated as on today. Ordered accordingly. No costs.”
In the Later Judgment, in APPEAL NOS. 32 AND 3048 OF 2005
pronounced on 09/08/2010 in the instant case of revenue appeals the
Hon’ble Court allowed condonation of delay while set aside the abatement
order as under:
“26. As is clear from the aforesaid wordings, the Division Bench did not go into the question whether the appeal abates or not. It
5 I.T.A. No. 149/Asr/2019 Surinder Singh v. ITO proceeded on the basis that as the legal representatives are not brought on record, the appeal stands abated. In the circumstance, it cannot be said the said question is decided in the aforesaid appeal and it would bind us. No law is laid down. Nothing is decided in the aforesaid appeal.
27.On the merits also, we have gone through the averments and the statement of objections filed and we are satisfied that sufficient cause is made out for condoning the delay.
Accordingly, the applications filed by the revenue for condoning the delay, for setting aside abatement and to bring the legal representatives of the deceased-assessee on record are allowed. The Revenue to amend the cause title accordingly.”
In the present case, the assessee is died and legal heirs are required
to be brought on record to adjudicate the captioned appeal.
It is evident from the order sheet that this is old appeal pending for
adjudication since 26.02.2019 and none is appearing nor any adjournment
application is filed on behalf of assessees on the dates of hearing, despite
several opportunities granted by fixing the case for hearing on 11.04.2022,
17.05.2022, 14.06.2022, 12.07.2022, 07.09.2022, 06.10.2022, 09.11.2022,
22.12.2022, 31.01.2023, 28.02.2023 and 28.03.2023. In the meantime the
assessees have been died, and no appeals are maintainable on a dead
person in the eyes of law. In our view, the appeals filed by the assessees
6 I.T.A. No. 149/Asr/2019 Surinder Singh v. ITO are liable to be abated till the legal heirs of the assessees are brought on
record.
Considering peculiar the facts and circumstances of the case, that in
the absence of the legal hear or legal representative for the appellant, there
is no one to plead the subject appeals to protect appellant interest for a
considerable period of time and that many opportunities are given by way
of multiple dates fixed for hearing to bring legal heirs on record. We,
therefore, are of the considered view that this appeal may be liable to be
abated, so as to enable the AO to proceed for recovery of demand out of
the assets and estate that is capable of meeting the liability. It is further
clarified that the intention of the Legislation is apparently clear that 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
undercharged, 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. We appreciate, the contention of the
Ld. DR that the Assesses appeal may be abated but revenue appeal may
not be abated, and the instant appeals being pertains to the assessee
7 I.T.A. No. 149/Asr/2019 Surinder Singh v. ITO appeal, the abatement order would be in compliance to law to facilitate
collection of revenue.
In view of the matter, this appeal is being abated with a caveat that
the legal hears shall have right to revive this appeal with condonation of
delay for the period till the legal heirs are brought on record on filing revised
Form No. 36.
In the backdrop of the aforesaid discussion, the subject appeal of the
appellant assessees is disposed of in the terms indicated as above.
Order pronounced in the open court on 27.04.2023
Sd/- Sd/- (Anikesh Banerjee) (Dr. M. L. Meena) Judicial Member Accountant Member *GP/Sr./P.S.* Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T.
