2019 (7) TMI 1221 - HC - Income Tax

Abatement of pending appeal before High Court - notice not served as assessee had expired and LR has left the Country to USA and there was nobody available in the said address to be served with the notice of the present Appeal - HELD THAT - We find some force in the submission made by the learned Counsel for the Revenue. Since the Appellant died and his legal representatives are not available to argue the present Appeal or to engage a Counsel to appear in the matter, we dismiss the present Appeal as having abated with a liberty to the legal representatives to revive the said Appeal with proper Application in case, they consider it appropriate. The connected miscellaneous petition is also dismissed. Copy of this judgment be sent to the address of the Assessee as well as to the address of the learned counsel, who represented the Assessee. earlier viz., Mr.K.Ram Gopal, who is also said to have unfortunately expired.

Summary

Issues:
1. Service of notice to legal representatives of deceased appellant.
2. Applicability of Order 22 Rule 3 of the Code of Civil Procedure.
3. Dismissal of appeal due to abatement.

Analysis:
1. The case involved the issue of serving notice to the legal representatives of the deceased appellant, Mr. K.Y. Gaitonde. The court had previously directed the Income Tax Department to serve a fresh notice to the family members of the deceased at a specified address. However, upon inquiry, it was revealed that the legal representatives had left the country for the USA, and no one was available at the given address to accept the notice. The court acknowledged this information provided by the Revenue's Senior Standing Counsel.

2. The applicability of Order 22 Rule 3 of the Code of Civil Procedure was raised during the proceedings. The learned Senior Standing Counsel argued that since the appellant had passed away, and the legal representatives were not available to continue the appeal, the appeal should be dismissed as abated. The court agreed with this submission, recognizing the legal principle that in cases where the appellant has died, and the legal representatives cannot be brought on record, the appeal stands abated.

3. Consequently, the court dismissed the appeal, citing abatement due to the appellant's demise and the unavailability of legal representatives to pursue the case. The court granted liberty to the legal representatives to revive the appeal with a proper application if they deemed it necessary. Additionally, the connected miscellaneous petition was also dismissed. The court ordered copies of the judgment to be sent to the address of the deceased appellant and the former counsel who had represented the appellant, Mr. K. Ram Gopal, who had also passed away.