1983 (11) TMI 155 - AT - Income Tax

Issues Involved:
1. Validity of assessment and reassessment orders under the Income Tax Act and Wealth Tax Act.
2. Competency of Smt. Prabha Golecha to file returns and appeals on behalf of her missing husband, Shri Hem Chand Golecha.
3. Legality of the dismissal of appeals by the CIT(A) and CWT(A) based on procedural grounds.
4. Interpretation of the term "assessee" under Section 2(7) of the Income Tax Act.
5. Presumption of death under Section 108 of the Evidence Act.

Issue-Wise Detailed Analysis:

1. Validity of Assessment and Reassessment Orders:
The appeals concern three orders under the IT Act and two under the WT Act. The orders under the IT Act were passed under Sections 144 read with 147(a) and Section 146 for the assessment years 1977-78 and 1978-79. The WT Act orders pertain to the assessment years 1976-77 and 1977-78. The IAC (Assessment) issued notices under Sections 148, 139(2), and 142(1), but no returns were filed in response, leading to ex parte assessments under Section 144. The reassessment orders were challenged but dismissed by the CIT(A) and CWT(A) because they were not signed by Shri Hem Chand Golecha.

2. Competency of Smt. Prabha Golecha to File Returns and Appeals:
Smt. Prabha Golecha filed returns for the assessment years 1976-77 and 1977-78, asserting that her husband had been missing since July 7, 1976. The IAC (Assessment) did not accept these returns, arguing that she was not competent to file on behalf of her husband. The CIT(A) and CWT(A) dismissed the appeals on the grounds that they were not signed by Shri Hem Chand Golecha. The Tribunal, however, found that Smt. Prabha Golecha could file appeals as an "aggrieved assessee" under Sections 246 and 253 of the IT Act, given that she would be liable for the tax demands as a legal heir.

3. Legality of Dismissal of Appeals by CIT(A) and CWT(A):
The CIT(A) and CWT(A) dismissed the appeals in limine, citing that the forms of appeal, grounds of appeal, and verifications were not signed by Shri Hem Chand Golecha. The Tribunal disagreed, stating that the appeals were filed by Smt. Prabha Golecha, who was competent to do so. The Tribunal held that the defect in the title of the appeals was merely an irregularity, not an invalidity, and could be rectified.

4. Interpretation of "Assessee" under Section 2(7) of the IT Act:
The Tribunal examined whether Smt. Prabha Golecha could be considered an "assessee" under Section 2(7) of the IT Act. It concluded that since the tax demands from the reassessment orders would be recoverable from her and her sons as legal heirs of Shri Hem Chand Golecha, she qualified as an "assessee." The Tribunal referenced the Supreme Court's observation that an "aggrieved person" must be legally deprived of a benefit, which applied to Smt. Prabha Golecha.

5. Presumption of Death under Section 108 of the Evidence Act:
Smt. Prabha Golecha argued that under Section 108 of the Evidence Act, her husband should be presumed dead since he had not been heard from for seven years. However, the Tribunal noted that the appeals were filed before the seven-year period elapsed. Therefore, there was no presumption of death at the time of filing the appeals, and she could not act as a legal heir based on this presumption.

Conclusion:
The Tribunal allowed all the appeals, directing the CIT(A) and CWT(A) to order the appellant to correct the title defects in the forms of appeal and then dispose of the appeals on merits. The Tribunal also directed Smt. Prabha Golecha to amend the titles of her appeals within eight days to substitute her name for her husband's. If the defects were not rectified, the appeals would stand dismissed for non-prosecution.

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