Shri Jivraj V. Desai, Mehsana V. The Deputy Commissioner of Income Tax, Central Circle-2(1), Ahmedabad

ITA 1994/AHD/2017

AI Insights

This case involves an appeal by Shri Jivraj V. Desai against the order of the Commissioner of Income-tax (Appeals)-7, Ahmedabad, for the Assessment Year 2013-14. During the appeal proceedings, it was revealed that the assessee had passed away, and the legal heirs were not impleaded as required for the continuation of the appeal. The tribunal discussed the procedural requirements under Rule 26 of the ITAT Rules and Order 22 of the Code of Civil Procedure, which stipulate that the legal representative of a deceased party must be made a party to the proceedings for the appeal to continue. Due to the absence of legal heirs on record, the tribunal dismissed the appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124689 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-05-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 28-02-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 03-09-2017
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD BEFORE MRS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER AND SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER ITA No. 1994/Ahd/2017 िनधा榁रणवष榁/Assessment Year: 2013-14 Shri Jivraj V. Desai, Prop. M/s. Rajiv Enterprise, 5, Ashoknagar Society, Radhanpur Road, Mehsana PAN : AAWPD 8565 F Vs. The DCIT, Central Circle 2(1), Ahmedabad अपीलाथ牸 अपीलाथ牸अपीलाथ牸 अपीलाथ牸/ (Appellant) 灹瀄 灹瀄 灹瀄 灹瀄 यथ牸 यथ牸यथ牸 यथ牸/ (Respondent) Assessee by : Shri S.N. Divatia, AR Revenue by : Shri Atul Pandey, Sr DR सुनवाई सुनवाईसुनवाई सुनवाई क琉 क琉क琉 क琉 तारीख तारीखतारीख तारीख/Date of Hearing : 01.03.2023 घोषणा घोषणाघोषणा घोषणा क琉 क琉क琉 क琉 तारीख तारीखतारीख तारीख /Date of Pronouncement: 26.05.2023 आदेश आदेशआदेश आदेश/O R D E R PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER: This appeal is preferred by the assessee against the order of the learned Commissioner of Income-tax (Appeals)-7, Ahmedabad (hereinafter referred to as “CIT(A)”) dated 15.06.2017 passed u/s 250(6) of the Income- tax Act, 1961 (hereinafter referred to as “the Act”) for Assessment Year (AY) 2013-14. 2. During the pendency of the hearing of the appeal before us, it was informed by the learned Counsel for the assessee on 14.07.2022 that the assessee had expired and was no longer alive. The Death Certificate of the assessee in this regard was filed before us mentioning the date of death of the assessee as 3 rd April 2021. The learned Counsel for the assessee accordingly sought time to implead the legal-heirs of the assessee in the present case for continuation of hearing in the lis. Today, the learned Counsel for the assessee orally stated before us that he was unable to bring 2 ITA No. 1994/Ahd/2017 Shri Jivraj V. Desai Vs. DCIT AY : 2013-14 the legal-heirs on record. He filed a letter before us which merely mentioned that the assessee had expired on 3 rd April 2021, leaving behind legal-heirs, and that this intimation was being given under Order 22 Rule 3 of the Civil Procedure Code (CPC) by the authorized representative of the deceased- appellant. He further pointed out that for the continuation of the proceedings by the legal-heirs of the deceased, an application is required to be made by the legal-heirs in accordance with Order 22 of CPC and Rule 26 of ITAT Rules. 3. We have noted the contention made by the learned Counsel for the assessee. He has in a very clear terms expressed his inability to implead the legal-heirs of the deceased-assessee in the present case in terms of Rule 26 of ITAT Rules and Order 22 of Code of Civil Procedure for continuation of the appellate proceedings before us. 4. Rule 26 of the ITAT Rules prescribes the following procedures to be followed where one of the parties to the appeal is deceased:- “26. Where an assessee whether he be an appellant or the respondent to an appeal dies or is adjudicated insolvent or in the case of a company being wound up, the appeal shall not abate and may, if the assessee was the appellant, be continued by, and if he was the respondent be continued against, the executor, administrator or other legal representative of the assessee or by or against the assignee, receiver or liquidator, as the case may be: Provided that: (i) The assessee files a revised Form No. 36 duly filled up giving revised name of the party duly verified in the same manner as required by rule 47 of Income Tax Rules, 1962; (ii) The revised Form No. 36 shall specify the appeal number as originally assigned or, in the event of non-availability of such number on the date of filing the appeal shall be mentioned in the covering letter to enable the Registrar to place fresh Form No. 36 in the original file.] 3 ITA No. 1994/Ahd/2017 Shri Jivraj V. Desai Vs. DCIT AY : 2013-14 5. Order 22, Rule 1 & 3, of the Code of Civil Procedure states as under:- “1. No abatement by party’s death, if right to sue survives.- The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. HIGH COURT AMENDMENT Allahabad. - At the end of the rule add the words: “or to proceedings in the original Court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature 01 the suit.” “3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.- (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and, the court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.” 6. As is evident from the above, for the continuation of a lis on the death of an appellant/respondent, the legal representative/heir of the deceased is to be made party to the suit. In the present case, as per the admission of the authorized representative before us, he is unable to implead any legal heir of the deceased assessee. In view of the same the appeal cannot be continued to be heard with and is therefore dismissed. 7. In the result, the appeal of the assessee is dismissed. Order pronounced in the open Court on 26/05/2023 at Ahmedabad. Sd/- Sd/- (SIDDHARTHA NAUTIYAL) JUDICIAL MEMBER (ANNAPURNA GUPTA) ACCOUNTANT MEMBER Ahmedabad; Dated 26/05/2023 **bt 4 ITA No. 1994/Ahd/2017 Shri Jivraj V. Desai Vs. DCIT AY : 2013-14 आदेश आदेशआदेश आदेश क琉 क琉क琉 क琉 灹ितिलिप 灹ितिलिप灹ितिलिप 灹ितिलिप अ灡ेिषत अ灡ेिषतअ灡ेिषत अ灡ेिषत/Copy of the Order forwarded to : 1. अपीलाथ牸 अपीलाथ牸अपीलाथ牸 अपीलाथ牸 / The Appellant 2. 灹瀄यथ牸 灹瀄यथ牸灹瀄यथ牸 灹瀄यथ牸 / The Respondent. 3. संबंिधत संबंिधतसंबंिधत संबंिधत आयकर आयकरआयकर आयकर आयु猴 आयु猴आयु猴 आयु猴 / Concerned CIT 4. आयकर आयकरआयकर आयकर आयु猴 आयु猴आयु猴 आयु猴)अपील अपीलअपील अपील (/ The CIT(A)- 5. िवभागीय िवभागीयिवभागीय िवभागीय 灹ितिनिध 灹ितिनिध灹ितिनिध 灹ितिनिध ,आयकर आयकरआयकर आयकर अपीलीय अपीलीयअपीलीय अपीलीय अिधकरण अिधकरणअिधकरण अिधकरण/DR,ITAT, Ahmedabad, 6. गाड榁 गाड榁गाड榁 गाड榁 फाईल फाईलफाईल फाईल /Guard file. आदेशानुसार आदेशानुसारआदेशानुसार आदेशानुसार/ BY ORDER, TRUE COPY सहायक सहायकसहायक सहायक पंजीकार पंजीकारपंजीकार पंजीकार (Asstt. Registrar) आयकर आयकरआयकर आयकर अपीलीय अपीलीयअपीलीय अपीलीय अिधकरण अिधकरणअिधकरण अिधकरण ITAT, Ahmedabad 1. Date of dictation ......28.02.2023........ Date on which the typed draft is placed before the Dictating Member :.....01.03.2023 /24.05.2023... 1. Other Member...24.05.2023..................... 2. Date on which the approved draft comes to the Sr.P.S./P.S......25.05.2023.................... 3. Date on which the fair order is placed before the Dictating Member for pronouncement...26.05.2023. 4. Date on which the fair order comes back to the Sr.P.S./P.S......26.05.2023............. 5. Date on which the file goes to the Bench Clerk................ 6. Date on which the file goes to the Head Clerk... 7. The date on which the file goes to the Assistant Registrar for signature on the order............ 8. Date of Despatch of the Order..................