TMI Blog1999 (4) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... npur. The return for these four years were due under section 139(1) of the Act, on September 30, 1971, September 30, 1973, September 30, 1975 and June 30, 1976, respectively. As the returns were not filed, the Income-tax Officer issued notices under section 148 of the Act, which was followed, by notice under section 142(1). The notices were again issued on September 27, 1977. The assessee sent a reply on October 14, 1977, and after some correspondence, returns were ultimately filed by Sri C. L. Verma for each of the four assessment years in question on November 17, 1977, declaring an income of Rs. 6,000 for each of these years. The Income-tax Officer after making certain disallowances and additions completed the assessment for these four years on an income of Rs. 31,476, Rs. 41,100 Rs. 44,100 and Rs. 48,800 respectively. The appeal filed by the assessee before the Assistant Commissioner failed. However, in the appeal before the Tribunal, a preliminary objection was raised on behalf of the assessee to the effect that the very initiation of the proceedings under section 148 of the Act in these cases was wrong. It was submitted that the late Sri G. P. Verma started the business of U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1977, the heirs and legal representatives did not take any objection about the requirement/ necessity of bringing all the heirs and legal representatives of the late Sri G. L. Verma on record. Sri Chandra Mohan Verma participated in the proceedings before the Income-tax Officer. Even in the appeal filed by him before the Appellate Assistant Commissioner in respect of the aforementioned assessment years, no objection whatsoever was raised regarding the non-impleadment of all the heirs and legal representatives of Sri G. L. Verma in the proceedings. It was raised only for the first time in the appeal before the Tribunal. Section 159 of the Act deals with legal representatives. It reads as follows : "159. Legal representatives.---(1) Where a person dies, his legal representatives, shall be liable to pay any sum which the deceased would have been liable to pay if he had not died, in the like manner and to the same extent as the deceased. (2) For the purpose of making an assessment (including an assessment, reassessment or recomputation under section 147) of the income of the deceased and for the purpose of levying any sum in the hands of the legal representative in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the suit or appeal and the impleaded legal representatives sufficiently represent the estate of the deceased and a decision obtained with them on record will bind not merely those impleaded but the entire estate including those not brought on record. The aforesaid principle laid down by the Supreme Court in the case of Daya Ram v. Shyam Sundari, AIR 1965 SC 1049, was invoked by the Supreme Court in respect of the assessment of income of the estate of a deceased person in the hands of the legal representatives under the Income-tax Act, in the case of First Addl. ITO v. Mrs. Suseela Sadanandan [1965] 57 ITR 168 (SC). However, the Mysore High Court in the case of CIT v. N. A. Mandagi [1967] 63 ITR 173, has held as follows : "When a person dies and an assessment has to be made with respect to his income, his estate must be properly represented before the Income-tax Officer, and there could be such representation only if all his legal representatives are served with the notice enjoined by section 24B of the Income-tax Act, 1922. The expression 'legal representative' occurring in that section, when there is a plurality of legal representatives, has reference to all those legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, there were also other legal representatives of the deceased, there is no reason why in such cases the general rule evolved in the field of civil law should not be applied and the proceedings may be held to be valid." In Mahabir Prasad v. Jage Ram, AIR 1971 SC 742 ; [1971] 1 SCC 265, the Supreme Court has held that where in a proceeding a party dies and one of the legal representatives is already on the record in another capacity, it is only necessary that he should be described by an appropriate application made in that behalf that he is also on the record as an heir and legal representative and even if there are other heirs and legal representatives and no application for impleading them is made, within the period of limitation prescribed by the Limitation Act, the proceedings will not abate. In N. Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, AIR 1979 SC 1393, the Supreme Court while examining the question as to whether or not a decree against the dead person should be treated as a nullity against his legal representative when he was never brought on the record to defend the case held as follows : "The basic fact remains that a decree against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draw an inference as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it wilfully." In the case of CIT v. Sumantbhai C. Munshaw [1981] 128 ITR 142, the Gujarat High Court had held that : "Section 159, which merely prescribes the method for making assessment of tax in a special case, does not bear upon the initial jurisdiction of the taxing authority but deals with matters incidental to it. If the assessing authority, in the exercise of his jurisdiction, omits to take one or more of the various procedural steps therein laid down or in taking any of such steps commits an error or even deviates from the statutory mandate, the assessment would be null and void only if the omission, error or breach, as the case may be, is so fundamental as could not be waived because it affects inherent jurisdiction. The legal representative has a right to waive the advantage of any of the statutory provisions made solely for his protection or benefit and not conceived in public interest. Therefore, if the legal representative (which term includes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a valid order." In view of the principles laid down by the Supreme Court in the case of Mahabir Prasad v. Jage Ram, AIR 1971 SC 742, and N. Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, AIR 1979 SC 1393, we find ourselves unable to agree that the decisions of the Mysore High Court in the case of CIT v. N. A. Mandagi [1967] 63 ITR 173, the Gujarat High Court in the case of Chooharmal Wadhuram v. CIT [1971] 80 ITR 360 and the Delhi High Court in the case of CIT v. Roshan Lal [1982] 134 ITR 145, inasmuch as when one of the legal representatives of the deceased has been brought on record and no objection whatsoever has been taken by the remaining heirs and the legal representatives of the deceased for continuance of the proceedings, the proceedings can be validly continued against only one of the legal representatives who has been brought on record. Applying the principles laid down by the Supreme Court in the case of Daya Ram v. Shyam Sundari, AIR 1965 SC 1049 ; Mahabir Prasad v. Jage Ram, AIR 1971 SC 742, and N. Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, AIR 1979 SC 1393, to the facts of the present case, we find that ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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