9911796707
TMI Blog1987 (10) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... O was informed of the death of Sri Jailabudeen and other material on record also showed that the ITO was aware of the fact of his death. He stated that the assessment as made on the person who had died was, therefore, not correct, but the CIT(A) was of the view that the proper order to be passed was to set aside the assessment to be redone in accordance with law. 2. The assessee is in appeal before us. The assessee s submission is that the assessment made should have been quashed and this not having been done, the assessee seeks that we should declare the assessment to be a nullity 3. We have gone through the records to ascertain the factual position. Subsequent to the filing of the return by Sri. Jailabundeen on 14th Oct., 1983, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made making several addition on the same day, viz., 30th March, 1985. The question that arises is whether in this background the setting aside of the assessment made one the deceased was in order or the assessment itself had to be quashed. 4. The learned counsel for the assessee placed a strong reliance on the judgement of the Gauhati High Court in the case of Jai Prakash Sing vs. CIT 1977 CTR (Gau) 232 : (1978) 111 ITR 507 (Gau). There, the High Court had held that if an estate of a deceased assessee was to be assessed to income-tax, the estate must be fully represented by impleading all the legal representatives and serving notices under s. 143(2) on all of them who represent the entire estate. If this were not done, the assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had also filed a reply giving clarifications during the income-tax proceedings. The authorised representative authorised by her had also filed written replies giving clarifications. If we go through the record, we do not find that there was any material before the ITO to suggest before he completed the assessment that there was any other legal representative. The decision relied on by the learned counsel no doubt supports his stand that the assessment should be annulled. But the other decisions all support the view that the setting aside of the assessment to be redone after bringing on record all legal representatives was a valid and proper order passed by the CIT(A). In 134 ITR 145, the Delhi High Court held in similar circumstances that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue against the deceased without any objection and let the ITO to make an assessment order against the deceased, it would not be open to such a person to take up a plea as a last resort that the proceedings were a nullity especially when the consequence of permitting him to raise such a plea would be to debar a fresh assessment on him. Such a case, according to the Gujarat High Court, would constitute an exception to the general rule that an assessment against a dead person is a nullity and though gross irregularity is involved, especially when there is apparent indifference and not more inadvertence on the part of the ITO, the assessment would still be valid and effective qua the legal representative. Viewed from the ratio of this judgement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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