2019 (10) TMI 650 - AT - Income Tax

Appeal filed against the deceased assessee - revised form no. 36 is filed belatedly - HELD THAT - In the case in hand since the revenue was allowed to take the necessary steps therefore the delay in filing the Memorandum of Appeal against the legal heir of the deceased assessee has been found to be explained by the revenue due to inadvertent mistake and therefore even if the said revised form no. 36 is filed belatedly the Tribunal is satisfied with the reasons and cause of delay explained by the ld. D/R. Accordingly the delay in filing the form no. 36 is condoned. As regards the decisions relied upon by assessee there is no dispute that the appeal filed against the deceased assessee is not covered under the provisions of section 292B and therefore the same is an invalid appeal liable to be dismissed. The appeal dismissed being invalid in limini due to the reason of impleading a deceased assessee cannot take away the right of the appellant to file a fresh appeal against the legal heir of the deceased assessee subject to the provisions of limitation and leave taken from the court. Hence once the Tribunal has granted the leave to the revenue for filing the revised form no. 36 the appeal of the revenue is admitted for deciding on merits. The legal preliminary objection raised by the assessee is rejected. The appeal of the revenue is directed to be listed for hearing on merits on 14th October 2019. In the result preliminary objection of the assessee is dismissed.

Summary

Issues:
Maintainability of appeal against deceased assessee.

Analysis:
The appeal was filed by the revenue against the deceased assessee for the assessment year 2012-13. The assessee had raised a preliminary objection regarding the maintainability of the appeal due to the demise of the assessee on 21st February, 2017. The legal heir of the deceased had informed the AO and the ld. CIT (A) about the death through various communications. The ld. Counsel for the assessee argued that the appeal against the deceased assessee was not maintainable, citing legal precedents and provisions of ITAT Rules, 1963. The revenue contended that the appeal was filed in the name of the deceased assessee inadvertently and took corrective steps by filing a revised form no. 36 substituting the deceased assessee with the legal heir.

The Tribunal acknowledged that the appeal against the deceased assessee was not maintainable. However, the Tribunal allowed the revenue to substitute the deceased assessee with the legal heir by filing a revised form no. 36. The Tribunal noted that the revenue's delay in filing the revised form was due to inadvertent mistake and condoned the delay. The Tribunal emphasized that the dismissal of the appeal against the deceased assessee did not preclude the revenue from filing a fresh appeal against the legal heir, subject to the provisions of limitation and court's leave. Therefore, the Tribunal admitted the appeal for deciding on merits after granting leave to the revenue for filing the revised form no. 36.

In conclusion, the legal preliminary objection raised by the assessee regarding the maintainability of the appeal against the deceased assessee was rejected. The appeal of the revenue was directed to be listed for hearing on merits, and the preliminary objection of the assessee was dismissed.