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TMI Blog2019 (10) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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 admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st February, 2017. He has referred to the death certificate of the deceased assessee. The ld. Counsel further submitted that the legal heir of the assessee submitted a letter dated 5th March, 2017 to the AO intimating about the death of the assessee. He has also referred to letter dated 11th September, 2017 as well as amended cause title in the case pending before the Hon'ble Jurisdictional High Court on 30.08.2017 and submitted that this fact was very much in the knowledge of the AO that the assessee had expired on 21st February, 2017. The legal heir also submitted the application to the ld. CIT (A) dated 18th September, 2017 for bringing the legal heir on record. Thus the ld. Counsel for the assessee has referred a series of communication ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled only when there is a change of address of the parties to the appeal whereas as per Rule 12 of the ITAT Rules, the Tribunal may reject the Memorandum of Appeal if it is not in the prescribed form or return it for being submitted within such time as may be allowed. The ld. Counsel then referred to Rule 26 of the ITAT Rules and submitted that in case of death of the assessee, the appeal shall not abate but the legal heir of the assessee has to be brought on record by filing the revised form no. 36 but this rule is applicable only when the death occurred during the pendency of the appeal before the Tribunal. Therefore, the ITAT Rules do not provide filing of revised form no. 36 if the assessee has already died and the appeal was filed agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the appeal before the ld. CIT (A). This fact was apprised to the AO by the legal heir by various letters and also brought to the notice of the ld. CIT (A). However, the ld. CIT (A) has passed the impugned order in the name of the deceased assessee and not against the legal heir of the deceased assessee. The AO was very much aware about the death as it is manifest from the record that even the set aside assessment order for the assessment year 2004-05 was passed by the AO on 21st December, 2017 in the name of legal heir. When the appeal of the revenue was listed for hearing first time before the Tribunal on 12th July, 2018, the legal heir of the deceased assessee filed an application raising the objection against the maintainability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 5. As regards the decisions relied upon by the ld. Counsel for the 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. However, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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