TMI Blog2004 (1) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-1987, the assessee, Shri Ganesh Pershad Goel, died. The letter dated 4-5-1987 of the legal representative was issued to the Assessing Officer pertaining to the penalty notice under section 273 of the Income-tax Act for the assessment year 1985-86. The legal representative's letter dated 16-5-1987 was also issued regarding the appeal filed against income-tax assessment for the assessment year 1985-86. There was also a judgment dated 12-7-1987 of the Hon'ble Andhra Pradesh High Court in writ petition filed by the assessee (deceased) against the income-tax assessment for the year 1985-86, wherein Shri Ramesh Pershad Goel was mentioned as representing the deceased assessee Shri Ganesh Pershad Goel. Notice under section 16(2) dated 7-12-1989 was also issued in the name of the deceased. The Assistant Commissioner of WT completed the assessment on 2-3-1990 by determining the net wealth at Rs. 52,51,300. In response to the notice under section 16(2), the assessee's son Shri Om Prakash and Shri M.S. Rao ITP appeared before the Assessing Officer. A letter was addressed by Shri Ramesh Pershad Goel, the legal representative of the deceased assessee Shri Ganesh Pershad Goel on 28-2-1990, wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order under section 16(3) dated 2-3-1990 on this ground. 2.4 The Commissioner (Appeals) has stated in the appellate order that Shri Ramesh Pershad Goel is the legal representative of the assessee. Inadvertently, the ACWT has not mentioned the name of the legal representative in the assessment order. Otherwise, the legal representative was impleaded and heard before the completion of the assessment. The mentioning of the name of the deceased in the assessment order was a clear error which had no adverse effect on the proceedings within the meaning of section 42C of the Wealth-tax Act. Hence, the assessment was valid. Therefore, the order passed by the Tribunal on 24-6-1997 particularly in WTA No. 26/Hyd./95 has to be recalled. These are exactly the grievances of the Department as mentioned in its miscellaneous petition. 2.5 In support of these contentions, reliance is placed on the following decisions- (a) Swaran Kanta v. CIT [1989] 176 ITR 291 (Punj. Har.), (b) CIT v. Jai Prakash Singh [1996] 219 ITR 737 (SC), (c) Vijay Sarin v. ITO [1993] 202 ITR 249 (Delhi), (d) Lok Nath Co. v. CWT [1996] 217 ITR 310 (SC) and (e) Smt. Kaushalyabai v. CIT [1999] 238 ITR 1008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he dead person, the defect in the notice was automatically cured. 4.3 In the case of Jai Prakash Singh, the Hon'ble Apex Court has held that an omission to serve or any defect in the service of notice provided by procedural provisions does not efface or erase the liability to pay tax where such liability is created by distinct substantive provisions (charging sections). Any such omission or defect may render the order irregular depending upon the nature of the provision not complied with but certainly not void or illegal. 4.4 In the case of Vijay Sarin, Hon'ble Delhi High Court has held that when the assessee passed away during the course of assessment proceedings, the proceedings can continue against the legal representative, and an assessment order passed without notice to legal representative cannot automatically become a nullity or invalid, and that the action of the AAC in setting aside the assessment and directing the Assessing Officer to make the fresh assessment after making the legal representatives a party and issuing notice is perfectly valid and legal. 4.5 In the case of Loknath Co., the Hon'ble Apex Court has held that even though the assessment order was passe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deceased was not in the picture at all even in the course of the assessment proceedings as the assessments were made admittedly on the estate of the deceased in that case, and that therefore, there could not have been any mistake whatsoever with reference to the assessee, who was subject to assessment as has been held in that case itself, whereas the assessee was very much alive in the course of assessment proceedings in the instant case and he has also even responded to the notices or letters served on him by the Department, as even admitted by the assessee before us in the course of the submissions before us. Not only that, even after the death of the assessee before the assessment order could be passed in the instant case, the legal representatives of the deceased have also represented the case before the authorities below. 4.8 If the order of assessment could be seen, even though it was passed subsequent to the death of the deceased, and even though the name of the deceased assessee alone has been written on the order of assessment, the very same order of assessment in the cause title clearly depicts the names of the representatives, who were present as 'Shri M.S. Rao, IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee, who is present now. (b) Right or wrong, when the appeals came up for hearing before this Tribunal, after hearing the Departmental Representative and after issuing notice to the assessee for giving opportunity to appear for hearing though in vain, the Tribunal has taken one view, and ultimately in its order dated 24-6-1997 in the appeals of the parties aforesaid, out of which the present Miscellaneous Petition arises out of the Revenue's appeal, rejected the appeal of the revenue and treated the appeal of the assessee as allowed, by holding that the impugned assessment order is a nullity in law, and consequently to result in its cancellation, based on the reason that the assessee was no more. The present Miscellaneous Application is filed under section 254(2), whereunder the Tribunal is empowered only to rectify the mistakes apparent from record. On the other hand, it does not appear to us that there is anything mistake apparent from record in the instant case in the order of the Tribunal. (c) Obviously, it appears that we have been requested to change our opinion taken earlier, which amounts to review of the matter. It is well-known and settled position of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and further held that the writ petition before it was competent and that the Tribunal exceeded its jurisdiction in passing its impugned order recalling it and posting the appeal for rehearing for the purpose of re-writing its earlier order under section 254(2). 4.10 In this light and such view of the matter, our hands are tied up and we are helpless to come to the rescue of the revenue, for which the remedy seems to lie elsewhere, especially when the Department has also filed a reference application against the order of the Tribunal impugned in this petition. 4.11 Thus, with great restraint, considering the scope of rectification under section 254(2), we have to reject the present Miscellaneous Petition of the revenue. Even this Miscellaneous Petition of the revenue arising out of its own appeal seems to have been filed by it with much restraint and hesitation on the part of the Department, which we can infer from the fact that this petition is preferred by it barely a few months before completion of four years from the date of order of the Tribunal impugned herein. Further, we would like to also observe with restraint that when the revenue's appeal could be dismissed for the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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