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2021 (7) TMI 119 - HC - Income TaxValidity of the Order of assessment passed after the death of the assessee - scope of section 159 - Responsibility of legal representatives of the deceased assessee - HELD THAT:- From perusal of Section 159(2) of the Act, it is evident that the aforesaid provision expressly provides that death of the party is of no consequence and proceeding under the Act can proceed against legal representatives of the assessee and proceedings initiated against the deceased assessee shall be deemed to be the proceeding initiated against legal representatives of the assessee from the inception which could be continued from the stage of his death. The concept of abatement of the proceeding is not contemplated under the provisions of the Act. Section 159(2)(a)(b) and Section 159(3) of the Act create a legal fiction. It is well settled rule of statutory interpretation that in interpreting a provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. A division bench of this court in Smt.V.Rukmini [2010 (8) TMI 505 - KARNATAKA HIGH COURT] while dealing with the question whether an appeal under Section 260A of the Act abates on account of death of the assessee during the pendency of the appeal, while dealing with scope and ambit of Section 159 of the Act has held that the concept of abatement is excluded, from the provisions of the Act which is evident from Section 159(2) of the Act. In the instant case, admittedly, after conclusion of the submissions, before an order was passed by the Assessing Officer, the assessee expired. Therefore, by virtue of Section 159(2) of the Act, the proceeding could not have held to have been abated and could have been continued against the legal representatives. Section 159(2)(a) of the Act creates a legal fiction therefore, full effect has to be given to the same. It is not a case where the proceedings were initiated against the assessee who had already expired. Therefore, the proceeding could have been held to be ab initio void. Order passed by the tribunal is quashed and the matter is remitted to the Assessing Officer to issue notice to the legal representatives of the deceased assessee.
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