Madhya Pradesh High Court
Cit vs Dalumal Shyamumal on 25 November, 2004
Equivalent citations: [2005]144TAXMAN151(MP)
ORDER Sapre, J.
This is an Income Tax Reference made by the ITAT (Tribunal) under section 256(1) of the Income Tax Act at the instance of revenue (i.e., CIT) in R.A. No. 119/Ind/98 arising out of an order dated 6-5-1998, passed by Tribunal in I.T.A. No. 393/Ind/94 to this court for answering following question of law:
"Whether, on the facts and in the circumstances of the case, the Tribunal was justified in annulling the assessment framed by the assessing officer against a dead person without bringing the LRs on record?"
The question is founded on following facts as stated in statement of case drawn by the Tribunal.
2. One Dalumal Shyamumal was an assessee. For the assessment year 1990-91, the assessing officer passed an assessment order on 24-2-1993 (Annexure-A) under section 143(3) of the Act. It is not in dispute that assessee had expired prior to passing of the assessment order. It is also not in dispute that assessing officer had the knowledge of the death because a letter to that effect was sent to assessing officer on 11-7-1991 i.e., much prior to passing of order on 24-2-1993. It is also not in dispute that no notice as contemplated under section 159 of the Income Tax Act was sent to any of the legal representatives of assessee. In such circumstances, the order passed by assessing officer on 24-2-1993 becomes a nullity having been passed against the dead personCIT v. Amarchand N. Shroff (1963) 48 ITR 595 (SC) and ITO v. Ram Prasad (1972) 86 ITR 145 (SC).
3. In a case where an assessee dies pending any assessment proceedings, the provisions of section 159 of the Act gets attracted. It is the duty of assessing officer to ensure compliance of sub-section (2) of section 159 before any orders are passed.
4. In our opinion, the Tribunal while deciding the appeal ought to have taken note of section 159 ibid and should have accordingly, remanded the case to assessing officer for ensuring compliance of section 159 for passing appropriate orders of assessment after due notice to legal representative of deceased assessee. Indeed, once the assessment order is held to be a nullity then in such event consequential direction as contemplated under section 159 of the Act should have been given to assessing officer so that proper assessment order could be passed.
5. In this view of the matter, we answer the question against the revenue.