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TMI Blog2021 (7) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... ismissing the appeal filed by the legal heir of the assessee on the ground that delay in filing the appeal is not condonable despite the fact that it was brought to his notice that legal heirs of the deceased assessee did not know about the assessment order having been passed in the case of the deceased father and it came into the notice of the legal heirs only on receipt of recovery notice. In the interest of justice Ld. CIT(A) ought to have admitted the appeal and decide the same on merits. 2. That under the facts and circumstances of the case the Ld. CIT(A) has failed to appreciate that the assessment framed by the AO was bad in law in as much as notice u/s 148 of the Act was not served. In the assessment order the AO has observed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y as such cannot be assessed in its entirety as "short term capital gain". The AO was required to ascertain the facts and thereafter, assess such income under the appropriate head, if assessable under the Income Tax Act, 1961. 6. That under the facts and circumstances of the case the Ld. CIT(A) has failed to appreciate that, the Appellant being one of the legal heirs, is not liable to pay any tax on the income assessed by the AO. 3. Ironically the CIT(A) has dismissed the appeal as the appeal before him was barred by limitation and without condoning the delay and without going into the merits of the appeal the CIT(A) dismissed the appeal. 4. We are of the considered view that the CIT(A) ought to have considered the appeal on merits of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umari one of the daughter of the deceased Tahar singh whereas there are seven legal heirs of the deceased assessee. 9. The Hon'ble Supreme Court in the case of First Additional ITO Vs. Mrs. Susheela Sadananda 57 ITR 168 has observed as under :- There is also a large body of authority holding that if a party bona fide impleaded one of the legal representatives as representing the estate of a deceased party and the said representative represented the estate, the decree obtained therein is binding on the other legal representatives of the deceased. It is unnecessary to survey the wide field of decisions on this aspect of the case, as this court in a recent decision, in Daya Ram V. Shyam Sundari, has summarized the law. Rajagopala Ayyangar J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me to a conclusion whether the Income-tax Officer acted bona fide in serving the notices only on E. D. Sadanandan, because he was the executor who intermeddled with the estate and was in actual management thereof. Further, the notices under section 34 of the Act were addressed to " Late S. P. Sadanandan by his heirs E. D. Sadanandan and others, Kozhikode. " The record placed before us does not disclose how the proceedings were conducted, who represented the estate and whether the other executors and the legatees expressly accepted the representation or acquiesced therein. Though notices were served only on one of the executors, the proceedings might show that the estate was properly represented by E. D. Sadanandan with the consent, expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd remand the matter to it for fresh disposal. The parties will have opportunity to file fresh affidavits and to place all the relevant material before the High Court to enable it to come to a definite conclusion on the following points, among others : (1) Whether E. D. Sadanandan was in possession and management of the entire estate of his father and, if so, whether he would be the legal representative of his father within the meaning of section 24B of the Income-tax Act. (2) Even if he intermeddled only with a part of the estate, whether the Income-tax Officer bona fide treated him as representative of the estate and proceeded to assess the income of the estate in his hands. (3) Whether E. D. Sadanandan, in fact, represented the est ..... X X X X Extracts X X X X X X X X Extracts X X X X
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