TMI Blog2021 (7) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... ves 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appeal pertains to the Assessment year 2005-06. The appeal was admitted by a bench of this Court on the following substantial questions of law: (i) Whether on the facts and in the circumstances and in law the Tribunal was correct in holding that the order of assessment passed after the death of the assessee in invalid without taking into consideration the scope of section 159 of the Act and recorded a perverse finding? (ii) Whether on the facts and in the circumstances and in law the Tribunal was correct in holding that the order of assessment passed on the basis of the return filed by the assessee for the relevant previous year is bad in law on the ground the order is passed after the death of assessee? 2. Facts lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /- under Section 2(22)(e) of the Act to the assessed income. The legal heirs thereupon filed an appeal before the Income Tax Appellate Tribunal (hereinafter referred to as 'the tribunal' for short). The tribunal by an order dated 12.07.2013 inter alia held that since, the order of assessment was passed by the Assessing Officer after the death of the assessee, therefore, the order passed by the Assessing Officer against a dead person is a nullity. In the result, orders of assessment passed by the Assessing Officer in respect of Assessment Years 2002-03 and 2005-06 were held to be null and void and were annulled and the appeals preferred by the assessee were allowed. In the aforesaid factual background, this appeal has been filed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... F INCOME TAX, NEW DELHI VS. MARUTI SUZUKI INDIA LTD., (2019) 107 TAXMANN.COM 375 (SC), 'SKY LIGHT HOSPITALITY LLP VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 28(1), NEW DELHI, (2018) 90 TAXMANN.COM 413 (DEL), 'COMMISSIONER OF INCOME-TAX VS. SMT. V. RUKMINI', (2011) 12 TAXMANN.COM 562 (KARNATAKA). 5. On the other hand, learned counsel for the assessee submitted that the order of assessment passed against a dead person is null and void. It is also submitted that admittedly, the Assessing Officer had not brought on record the legal representatives of the deceased assessee. It is further submitted that provisions of Section 159 of the Act are not applicable as the same applies only to regular assessment or re assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te to take note of Section 159 of the Act, which reads as under: 159. (1) Where a person dies, his legal representative 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 re-computation 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 the provisions of sub-section (1),- (a) any proceeding taken against the deceased before his death shall be deemed to have been taken against the legal representative and may be continued against the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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