TMI Blog2022 (9) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... ispose of the present petition with the observation that the competent authority shall consider the claim of the petitioners strictly in light of the judgment passed in [ 2016 (8) TMI 1367 - ALLAHABAD HIGH COURT] Deepak vs Chief Commissioner of Income Tax and others) and determine the amount to be refunded to both the petitioners herein along with interest as provided therein. The said determination shall be made within a period of four weeks from the date of reciept of copy of this order. - Writ Tax No. - 606 of 2017 - - - Dated:- 15-9-2022 - Hon'ble Mrs. Sunita Agarwal And Hon'ble Vipin Chandra Dixit JJ. For the Petitioner : Sarveshwar Singh For the Respondent : S.S.C.,Manu Ghildyal ORDER Heard Sri Sarveshwar Singh learned counsel for the petitioners and Sri Manu Ghildyal learned counsel for the respondent revenue. The petitioners herein are sons and grandson of Late Giri Lal Jain. There were four sons and one daughter of Late Giri Lal Jain namely Ashok Kumar Jain (since deceased), Pradeep Kumar Jain, Deepak Kumar Jain, Vipin Kumar Jain and Smt. Asha Jain. The petitioner no.2 is the son of Late Ashok Kumar Jain and grandson of Late Giri Lal Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tire outstanding amount against Amrish Kumar Jain was liable to be appropriated from the legal heirs of the deceased Giri Lal Jain. Being aggrieved against the said order, Deepak Kumar Jain had filed Writ Petition (Tax) no.1748 of 2011. After exchange of counter and rejoinder affidavits, the said writ petition was finally decided vide judgment and order dated 11.08.2016. The contention is that the order passed by the CCIT, Ghaziabad dated 17.08.2011 related to all four brothers, upholding the appropriation of the entire amount of outstanding against Sri Amrish Kumar Jain from three sons of late Giri Lal Jain namely Pradeep Kumar Jain, Ashok Kumar Jain and Deepak Kumar Jain. The said order having been set aside by this Court vide judgment and order dated 11.08.2016, the petitioners herein are also entitled for the refund as directed therein in the matter of Deepak Kumar Jain. To this submission of the learned counsel for the petitioners, no plausible objection could be taken by the learned counsel for the revenue. It is, however, stated by him that the prayer no.(i) of the writ petition seeking for quashing of the order dated 17.08.2011 which was passed on the representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.05.1974 and Smt. Moonga Devi died on 30.10.1978. Wealth Tax assessment for the assessment years 1970-71 to 1974-75 were finalized by the Wealth Tax Officer, Central Circle, Ghaziabad on 24.03.1986. At that time neither Giri Lal Jain was alive nor any legal heirs of Giri Lal Jain were given any opportunity to participate in the proceedings as none of them were put to notice. It was noted by this Court that on behalf of the firm, an application was filed before the Income Tax Settlement Commission on 20.09.1982. Looking to the position that all three previous partners of the firm had died uptil the year 1978, it was noted by the Court that the existing firm M/s Girilal Mamchand and Company had been dissolved and it may have at the best became an proprietorship firm with the only partner being alive who was Amrish Kumar Jain. Relevant paragraphs '33' '34' of the judgment and order dated 11.08.2016 are required to be reproduced as under:- 33. Wealth-tax assessments for the assessment years 1970-71 to 1974-75 were finalized by Wealth Tax Officer, Central Circle, Ghaziabad on 24.03.1986. At that time also, admittedly, neither Girilal Jain was alive so as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th respect to the assessment years 1967-68 to 1974-75, 1976-77 to 1977-78, 1981-82 and 1982-83, application was filed before Income Tax Settlement Commission and it is quite obvious that such application would have been filed by Amrish Kumar Jain, being sole proprietor at that time but application was filed i.e. 20.09.1982 on behalf of M/s. Girilal Mamchand Co. How these proceedings could have been held binding upon the petitioner, we actually fail to understand. Thereupon final order was passed on 23.02.1996 determining liability for A.Y. 1969-70 and onwards. In respect of the A.Y.s 1967-68 and 1968-69, Settlement Commission accepted income of Rs. 61660/- and 1,09,182/-. Settlement Commission also granted immunity from all penalties imposed under Act, 1961 for assessment years 1969-70 and onwards to which settlement relates. Copy of said order dated 09.01.1996 passed by Settlement Commission is on record as Annexure No. 11 to writ petition. The entire order no where shows that petitioner or any of his brothers, in any manner, were party in proceedings before Settlement Commission or had any opportunity of hearing. 38. The period of assessment of income-tax or wealth-tax, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tently illegal and without jurisdiction. Further, it was held in para '40' and '41' that Section 159 of the Act, 1961 while making legal representative responsible for assessment proceedings or tax liability of a deceased, confines it to the extent to which estate is capable to meet liability. Meaning thereby, legal representative's liability is confine to the extent, as estate has been succeeded by him and not beyond that. This provision further makes it clear that the proceedings shall be initiated against legal representative in the same manner as it could not have been against deceased-assessee but that, if so, like deceased assessee, legal representatives were entitled to be heard before finalisation of liability, after the death of the deceased assessee. It was, thus, finally concluded in paragraphs-'48' and '49' as under:- 48. In view of above discussion, we are clearly of the view that recourse to Section 159 is thoroughly misconceived and illegal on the part of Revenue. Neither there existed any liability against deceased nor any liability was finalized after giving notice to the alleged legal heirs nor the amount which was seize ..... X X X X Extracts X X X X X X X X Extracts X X X X
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