Late Ghanshyam H Parsana,(Through L/h Mayur N Parsana), Bharuch V. ITO, Ward-5(4), Baroda

ITA 2871/AHD/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7675 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 24-03-2020
• Assessment Year: 2006-2007
• Appeal Filed On: 18-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Keywords: Assessment record; Set aside
• Section: 271(1)(c); 143(3); 142(1); 113; 48

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD [CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD] BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER I.T.A. NO. 2871/AHD/2017 (ASSESSMENT YEAR: 2006-07) LATE GHANSHYAM H PARSANA THROUGH L/H MAYUR PARSANA E-91, MEGHDOOT TOWNSHIP, NR. SWAMINARAYAN TEMPLE, ZADESHWAR CHOKDI, N H NO. 8, BHARUCH VS. ITO WARD-5(4) BARODA PAN NO. AMC PP6 113 D ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI S. N. SOPARKAR SR. ADVOCATE WITH MS. URVASHI SODHAN AR RESPONDENT BY : SHRI L. P. JAIN, SR. D.R. DATE OF HEARING 14 . 07 .20 20 DATE OF PRONOUNCEMENT 31.08.2020 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECT ED AGAINST THE ORDER DATED 30.03.2016 PASSED BY THE COMMISSIONER O F INCOME TAX (APPEALS)4, VADODARA ARISING OUT OF THE ORDER DATE D 24.03.2014 PASSED BY THE ITO, WARD-5(4), BARODA UNDER SECTION 143(3) R.W.S 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS TO T HE ACT) FOR ASSESSMENT YEAR 2006-07. 2. THERE IS A DELAY OF 566 DAYS IN PREFERRING THE I NSTANT APPEAL BEFORE US. IN SUPPORT OF THE DELAY THE LD. SENIOR COUNSEL APPEARING FOR THE ITA NO.2871/AHD/2017 LATE GHANSHYAM H PARSANA VS. ITO ASST.YEAR 2006-07 - 2 - ASSESSEE SUBMITTED BEFORE US THAT DURING THE PENDEN CY OF THE RE- ASSESSMENT PROCEEDING THE ASSESSEE PASSED AWAY ON 0 6.08.2013. THE NOTICE UNDER SECTION 142(1) OF THE ACT WAS SERVED S UBSEQUENT THERETO. IT WAS THE NEPHEW OF THE ASSESSEE LATE SHRI GHANSHYAM H PARSANA, SINCE DECEASED, WHO WAS ENTRUSTED UPON TO APPROACH THE IT O TO ENQUIRE ABOUT THE PROCEEDING PENDING. ULTIMATELY THE SAME WAS FI NALIZED AGAINST THE ASSESSEE. THE APPELLATE ORDER DATED 30.03.2016 IN REJECTING THE APPEAL PREFERRED BY THE ASSESSEE WAS NOT RECEIVED BY THE N EPHEW OF THE ASSESSEE AND ONLY UPON MAKING AN APPLICATION FOR SUPPLYING T HE CERTIFIED COPY ON 23.06.2017, THE SAME WAS RECEIVED ON 10.11.2017 AND THE INSTANT APPEAL WAS FILED ON 18.12.2017 BEFORE THE REGISTRY. IN SU PPORT OF HIS ARGUMENT HE HAS ALSO FILED AN AFFIDAVIT AFFIRMED BY ONE MAYU R N. PARSANA CLAIMED TO BE THE NEPHEW OF THE ASSESSEE LATE GHANSHYAM H P ARSANA, SINCE DECEASED, EXPLAINING SUCH DELAY. THERE IS NO LATCH ES AND/OR NEGLIGENCE ON THE PART OF THE RELATIVE OF THE ASSESSEE IN PREF ERRING THE APPEAL BEFORE US AS ALSO SUBMITTED BY THE ASSESSEE. UNLESS THE A PPEAL IS CONDONED THE ASSESSEE WILL SUFFER IRREPARABLE LOSS AND INJURY, H ENCE, THE LD. SENIOR COUNSEL APPEARING FOR THE ASSESSEE PRAYS FOR CONDON ATION OF DELAY. 3. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DER PASSED BY THE AUTHORITIES BELOW. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY THE RESPEC TIVE PARTIES, AND WE HAVE ALSO PERUSED THE AFFIDAVIT AFFIRMED BY THE NEPHEW OF THE ASSESSEE LATE GHANSYAM H PARSANA, SINCE DECEASED, A ND OTHER RELEVANT DOCUMENTS FROM WHICH IT IS REFLECTED THAT ONLY UPON RECEIPT OF THE PENALTY ITA NO.2871/AHD/2017 LATE GHANSHYAM H PARSANA VS. ITO ASST.YEAR 2006-07 - 3 - ORDER UNDER SECTION 271(1)(C) OF THE ACT THE LEGAL HEIR OF THE ASSESSEE COULD COME TO THE FACT OF DISMISSAL OF APPEAL BY TH E LD. CIT(A). THEREAFTER ON 23.06.2017 A LETTER WAS WRITTEN BEFOR E THE LD. COMMISSIONER FOR FURNISHING A CERTIFIED COPY OF THE ORDER PASSED BY HIM REJECTING THE APPEAL. A COPY OF THE SAID LETTER DA TED 23 RD JUNE IS ALSO AVAILABLE ON RECORD. FURTHER THAT ONLY ON 10.11.20 17 SUCH PHOTOCOPY OF THE APPELLATE ORDER WAS RECEIVED BY THE NEPHEW OF T HE ASSESSEE (LATE GHANSYAM H PARSANA), SINCE DECEASED AND THE APPEAL COULD BE FILED BEFORE US ON 18.12.2017. HENCE, THE DELAY OF 566 D AYS. UPON PERUSAL OF THE RELEVANT RECORDS INCLUDING THE LETTER DATED 23. 06.2017 WRITTEN BY THE NEPHEW OF THE ASSESSEE (LATE GHANSYAM H PARSANA), S INCE DECEASED, ADDRESSING THE LD. CIT(A) ENCLOSING THE DEATH CERTI FICATE OF THE ASSESSEE, IT APPEARS THAT THE EXPLANATION PROVIDED BY THE NEP HEW OF THE ASSESSEE IN THE FORM OF AN AFFIDAVIT AFFIRMED BY HIM SEEMS TO B E GENUINE. WE DO NOT FIND ANY NEGLIGENCE ON THE PART OF THE RELATIVE OF THE ASSESSEE IN PURSUING THE MATTER BEFORE THE AUTHORITIES BELOW AND ALSO IN PREFERRING THE APPEAL BEFORE US. HENCE, FOR THE ENDS OF JUSTICE WE FIND IT FIT AND PROPER TO CONDONE THE DELAY. THE APPEAL IS, THEREFORE, CONDO NED. ON MERIT THE SHORT POINT INVOLVED IN THIS PARTICUL AR CASE IS THIS THAT AS TO WHETHER AND ASSESSMENT PROCEEDING CAN BE FINA LIZED IN THE NAME OF DEAD PERSON. IN FACT, VERY MAINTAINABILITY OF THE REASSESSMENT PROCEEDING HAS BEEN CHALLENGED BY THE ASSESSEE AT THE THRESHOL D OF THE MATTER. THE RELEVANT FACT RELATING TO THE ASSESSEE IS THIS THAT DURING THE PENDENCY OF THE APPELLATE PROCEEDING ASSESSEE LEFT FOR HIS HEAV ENLY ABODE ON 08.03.2013 WHICH PARTICULAR FACT WAS BROUGHT TO THE NOTICE OF THE ITA NO.2871/AHD/2017 LATE GHANSHYAM H PARSANA VS. ITO ASST.YEAR 2006-07 - 4 - ASSESSING OFFICER BY HIS NEPHEW, REFLECTING AT PAGE 2 OF THE ORDER PASSED BY THE AO. IN SPITE OF THE SAME THE MATTER WAS FIN ALIZED AGAINST THE ASSESSEE. THE SAID FACT WAS FURTHER BROUGHT TO THE NOTICE OF THE LD. CIT(A). IN BOTH THE OCCASIONS THE PHOTOCOPY OF THE DEATH CERTIFICATE OF THE ASSESSEE LATE GHANSHYAM H PARSANA, SINCE DECEAS ED, WAS DULY SUBMITTED BY THE NEPHEW OF THE ASSESSEE BEFORE THE AUTHORITIES BELOW. IN SPITE OF THAT THE LD. CIT(A) PROCEEDED TO FINALIZE THE MATTER AND ULTIMATELY BY AND UNDER THE ORDER DATED 30.03.2016 THE APPEAL WAS DISMISSED. IT IS THE ARGUMENT OF THE LD. SENIOR CO UNSEL APPEARING FOR THE ASSESSEE THAT THE ASSESSMENT CANNOT BE FRAMED ON A DECEASED PERSON; THE SAME IS AGAINST THE TENETS OF LEGAL PRINCIPLE, AND VOID AB INITIO AND HENCE THE ENTIRE PROCEEDING IS LIABLE TO BE QUASHED. IN SUPPORT HIS ARGUMENT HE RELIED UPON A JUDGMENT PASSED BY THE CO-ORDINATE BE NCH IN ITA NO. 426/AHD/2011 FOR A.Y. 2007-08; A COPY WHEREOF WAS A LSO FURNISHED BEFORE US. 5. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DER PASSED BY THE AUTHORITIES BELOW. 6. THE CASE OF THE REVENUE IS THIS THAT SINCE THE N EPHEW OF THE ASSESSEE APPEARED BEFORE THE AUTHORITIES BELOW, THE REVENUE HAS RIGHTLY FINALIZED THE ISSUE THOUGH IT IS IN THE NAME OF THE DECEASED PERSON. 7. WE HAVE HEARD THE RESPECTIVE PARTIES, WE HAVE ALSO PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORDS. ITA NO.2871/AHD/2017 LATE GHANSHYAM H PARSANA VS. ITO ASST.YEAR 2006-07 - 5 - 8. IT APPEARS THAT THE NEPHEW OF THE ASSESSEE LATE GHANSHYAM H PARSANA DULY SUBMITTED THE DEATH CERTIFICATE OF THE ASSESSEE, SINCE DECEASED BEFORE THE AO IN SUPPORT OF THE FACT OF DEATH OF TH E ASSESSEE ON 06.08.2013; THE SAID FACT WAS ALSO REFLECTED FROM THE ORDER PAS SED BY THE LD. CIT(A). BUT IN SPITE OF THE SAME THE APPELLATE PROCEEDING W AS CONTINUED AGAINST THE DEAD PERSON AND IN ORDER TO COMPLETE THE PROCEEDING AT ANY COST THE SAME WAS FINALIZED BY THE LD. CIT(A) AND CONFIRMED THE O RDER PASSED BY THE LD. AO. AS PER THE PRINCIPLE OF FAIR PLAY SUCH A PROCE EDING CANNOT CONTINUE WHEN THE FACTUM OF DEATH IS BROUGHT TO THE NOTICE O F THE REVENUE. IN THIS PARTICULAR CASE INSTEAD OF TAKING STEPS TO BRING TH E LEGAL HEIRS ON RECORD BOTH THE AUTHORITIES BELOW PROCEEDED PURPORTEDLY TO FRAM E THE ASSESSMENT ON A DEAD PERSON. WE HAVE FURTHER CONSIDERED THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO. 426/AHD/2011 FOR A.Y. 2007-08. WH ILE DEALING WITH THE IDENTICAL ISSUE THE HONBLE TRIBUNAL HAS BEEN PLEAS ED TO OBSERVE AS FOLLOWS:- 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSE D THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. THE UNDISPUTED FACTS OF THE CASE ARE THAT THE ASSESSEE, SHRI VASUDEV GORDHANDAS DAPKI EX PIRED ON 23.12.2007 AND THIS FACT WAS BROUGHT TO THE NOTICE OF THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS VIDE ASSESSEESS AUTHORIZED REPRESENTATIVE, SHRI MO IHAN SHAH, CHARTERED ACCOUNTANT, LETTER DATED 1.9.2009. THE BENCH HAD C ALLED FOR THE ASSESSMENT RECORD TO VERIFY WHETHER THE SAID LETTER WAS FILED BY THE ASSESSEE AND WAS FORMING PART OF THE ASSESSMENT RECORD OR NOT. THE DR CONFIRMED DURING T HE COURSE OF HEARING BY PRODUCING THE ASSESSMENT RECORD THAT THE SAID LETTE R OF THE ASSESSEE DATED 1.9.2009 WAS THERE IN THE ASSESSMENT RECORD. THIS PROVES TH AT THE ASSESSEES AR HAD BROUGHT TO THE NOTICE OF THE AO THE FACTUM OF THE DEATH OF THE ASSESSEE, SHRI VASUDEV GORDHANDAS DAPKI. THE AO, THEREAFTER, INSTEAD OF T AKING STEPS TO BRING THE LEGAL HEIRS ON RECORD, PROCEEDED TO FRAME THE ASSESSMENT OF A DEAD PERSON. THUS, THIS ISSUE IS COVERED BY THE DECISION OF THIS BENCH OF T HE TRIBUNAL IN THE CASE OF ITO VS. SHRI AKHTER NOORUDDINAHMED SAIYED (SUPRA) WHEREIN T HE TRIBUNAL HELD AS UNDER: ITA NO.2871/AHD/2017 LATE GHANSHYAM H PARSANA VS. ITO ASST.YEAR 2006-07 - 6 - THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A), VALSAD DATED 27.12.2012 BY TAKING THE FOLLOWING GRO UNDS OF APPEAL: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN RESTRICTING THE ADDITION FROM R S 18,34,600/- TO RS 1,66,949/- AS G.P. @ 9.10% MADE ON ACCOUNT OF TH E UNDISCLOSED INCOME. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION MADE ON A CCOUNT OF DISALLOWANCES OF EXPENSES OF RS 7,78,364/-. 2. NOTICE WAS ISSUED TO THE RESPONDENT ASSESSEE BY REGISTERED POST WITH ACKNOWLEDGEMENT DUE ON 07.05.2014 WHICH WAS RETURNE D BY THE POSTAL AUTHORITIES ON 09.05.2014 WITH THE REMARKS DECEASE D. 3. THE DEPARTMENTAL REPRESENTATIVE AT THE TIME OF T HE HEARING FILED BEFORE US COPY OF THE DEATH CERTIFICATE OF THE ASSE SSEE SHRI AKHTER NOORUDDINAHMED SAIYED AND POINTED OUT THEREFROM THA T THE ASSESSEE EXPIRED ON 29.12.2009 AND THE IMPUGNED ORDER OF ASSESSMENT WAS PASSED BY THE ASSESSING OFFICER ON 21.11.2011. AS THE ASSESSMENT HAS NOT BEEN MADE IN THE NAME OF THE LEGAL REPRESENTATIVE, THEREFORE THE ASSESSMENT SHOULD BE SET ASIDE AND THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR MAKING ASSESSMENT AFRESH AFTER BRINGING LEGAL REPRESENTATIVES OF THE ASSESSEE ON RECORD. 4. WE HAVE HEARD THE DEPARTMENTAL REPRESENTATIVE AN D PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN THE INSTANT CASE, THE ASSESSMENT ORDER WAS PASSED O N LATE SHRI AKHTER NOORUDDINAHMED SAIYED U/S. 143(3) OF THE ACT ON 21. 11.2011, AND THEREAFTER, THE CIT(A) PASSED THE APPELLATE ORDER ON 27.12.2012 . ACCORDING TO THE DEATH CERTIFICATE OF SHRI AKHTER NOORUDDINAHMED SAI YED FILED BEFORE US BY THE DEPARTMENTAL REPRESENTATIVE, THE ASSESSEE HAD E XPIRED ON 29.12.2009 WHICH WAS MUCH BEFORE THE DATE OF PASSING OF THE AS SESSMENT ORDER. 5. IT MAY BE RECALLED THAT IN THE CASE OF ELLIS C. REID V. CIT 5 ITC 100 THE BOMBAY HIGH COURT HAD HELD THAT WHERE A PERSON DIED AFTER THE COMMENCEMENT OF THE ASSESSMENT YEAR BUT BEFORE HIS INCOME OF THE PREVIOUS YEAR WAS ASSESSED, HIS EXECUTOR WAS NOT LIABLE TO P AY THE TAX AND THAT IF THE DEATH OCCURRED WHILE ASSESSMENT PROCEEDINGS WERE PE NDING, THE PROCEEDINGS COULD NOT BE CONTINUED AND THE ASSESSMENT COULD NOT BE MADE AFTER THE PERSON'S DEATH: THIS VIEW OF THE BOMBAY HIGH COURT LED THE LEGISLATURE TO INTRODUCE SECTION 24B IN THE1922 ACT IN 1933. SECTI ON 24B CORRESPONDS TO SECTION 159 OF THE PRESENT ACT. THE RELEVANT PART O F SECTION 159 READS AS UNDER:- ITA NO.2871/AHD/2017 LATE GHANSHYAM H PARSANA VS. ITO ASST.YEAR 2006-07 - 7 - 159. (1) WHERE A PERSON DIES, HIS LEGAL REPRESENTAT IVE SHALL BE LIABLE TO PAY ANY SUM WHICH THE DECEASED WOULD HAVE BEEN L IABLE 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 (INCLUD ING AN ASSESSMENT, REASSESSMENT OR RECOMPUTATION UNDER SEC TION 147) OF THE INCOME OF THE DECEASED AND FOR THE PURPOSE OF L EVYING 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 BEFOR E HIS DEATH SHALL BE DEEMED TO HAVE BEEN TAKEN AGAINST THE LEGAL REPR ESENTATIVE AND MAY BE CONTINUED AGAINST THE LEGAL REPRESENTATIVE F ROM THE STAGE AT WHICH IT STOOD ON THE DATE OF THE DEATH OF DECEASED ; (B) ANY PROCEEDING WHICH COULD HAVE BEEN TAKEN AGAI NST THE DECEASED IF HE HAD SURVIVED, MAY BE TAKEN AGAINST T HE LEGAL REPRESENTATIVE; AND (C) ALL THE PROVISIONS OF THIS ACT SHALL APPLY ACCO RDINGLY. (3) THE LEGAL REPRESENTATIVE OF THE DECEASED SHALL, FOR THE PURPOSES OF THIS ACT, BE DEEMED TO BE AN ASSESSEE. A STUDY OF SUB-SECTION (1) OF SECTION 159 CLEARLY S HOWS THAT IT IS BY A LEGAL FICTION CREATED IN THE PROVISION THAT THE LEGAL REP RESENTATIVE OF A DECEASED PERSON HAD BEEN MADE LIABLE TO PAY ANY SUM WHICH TH E DECEASED WOULD HAVE BEEN LIABLE TO PAY IF HE HAD NOT DIED, IN THE LIKE MANNER AND TO THE SAME EXTENT AS THE DECEASED. THE LEGAL REPRESENTATIVE O F THE DECEASED, AS HAS BEEN LAID DOWN IN SUB-SECTION (3) OF SECTION 159 ARE, BY SUCH LEGAL FICTION, DEEMED TO BE THE ASSESSEES. SUB-SECTION (2) OF SECTION 159 LAYS DOWN THE CONDITIONS OF APPLICABILITY OF THE PROVISIONS OF SECTION 159. CLAUSE (A) OF SUB-SECTION (2) SAYS THAT ANY PROCEEDINGS TAKEN AGAINST THE DECEASE D BEFORE HIS DEATH SHALL BE DEEMED TO HAVE BEEN TAKEN AGAINST THE LEGAL REPR ESENTATIVE AND MAY BE CONTINUED AGAINST THE LEGAL REPRESENTATIVE FROM THE STAGE AT WHICH IT STOOD ON THE DATE OF THE DEATH OF THE DECEASED. FOR THE APPL ICABILITY OF THIS CLAUSE THE PROCEEDINGS FOR MAKING AN ASSESSMENT OR FOR THE PUR POSE OF LEVYING ANY SUM SHOULD HAVE BEEN TAKEN AGAINST THE DECEASED IN HIS LIFETIME AND THESE WOULD BE SUCH PROCEEDINGS WHICH MAY BE CONTINUED AGAINST THE LEGAL REPRESENTATIVE FROM THE STAGE AT WHICH SUCH PROCEEDINGS STOOD ON T HE DATE OF THE DEATH OF THE DECEASED. CLAUSE (B) OF SUB-SECTION (2) SAYS TH AT ANY PROCEEDINGS WHICH COULD HAVE BEEN TAKEN AGAINST THE DECEASED IF HE HA D SURVIVED MAY BE TAKEN AGAINST THE LEGAL REPRESENTATIVE. THIS CLAUSE OBVIO USLY DEALS WITH THE SITUATION WHERE THE PROCEEDINGS ARE CONTEMPLATED TO BE TAKEN AGAINST THE ESTATE OF THE DECEASED AFTER HIS DEATH. SINCE THE L EGAL REPRESENTATIVE OF THE DECEASED REPRESENTS HIS ESTATE SUCH PROCEEDINGS MAY BE TAKEN AGAINST THEM. THE STUDY OF THESE PROVISIONS CLEARLY BRINGS US TO HOLD THAT ONLY THOSE ITA NO.2871/AHD/2017 LATE GHANSHYAM H PARSANA VS. ITO ASST.YEAR 2006-07 - 8 - PROCEEDINGS FOR MAKING ASSESSMENT OR LEVYING ANY SU M MAY BE TAKEN AGAINST THE DECEASED, SO THAT THEY MAY BE CONTINUED AFTER H IS DEATH, WHICH HAVE BEEN TAKEN IN HIS LIFETIME. IN HIS LIFETIME SUCH PROCEED INGS WOULD NECESSARILY BE TAKEN AGAINST AND IN THE NAME OF THE DECEASED. HOWE VER, IF THE DECEASED HAD DIED BEFORE ANY SUCH PROCEEDINGS COULD HAVE BEEN TA KEN AGAINST HIM, THE PROCEEDINGS MAY BE TAKEN AGAINST THE LEGAL REPRESEN TATIVE OF THE DECEASED UNDER THE PROVISIONS OF SUB-CLAUSE (B) OF SUB-SECTI ON (2) OF SECTION 159. IT IS CLEARLY INFERRED THAT ASSESSMENT UNDER THE ACT CAN ONLY BE MADE AGAINST AN INDIVIDUAL ASSESSEE WHO MUST BE A LIVING PERSON. 6. IN THE CASE OF CIT V. AMARCHAND N. SHROFF [1963] 48 ITR 59 THE SUPREME COURT HELD THAT THE INDIVIDUAL HAS ORDINARI LY TO BE A LIVING PERSON AND THERE COULD BE NO ASSESSMENT ON A DEAD PERSON. WITH REGARD TO THE LEGAL FICTION, AS HAS BEEN CREATED UNDER SECTION 159 OF T HE ACT, THEIR LORDSHIPS OF THE SUPREME COURT REFERRING TO THEIR EARLIER DECISI ON IN THE CASE OF BENGAL IMMUNITY CO. LTD. V. STATE OF BIHAR (SIC.) OBSERVED THAT LEGAL FICTIONS ARE ONLY FOR A DEFINITE PURPOSE FOR WHICH THEY ARE CREATED A ND SHOULD NOT BE EXTENDED BEYOND THAT LIMITED FIELD. THE SAME PRINCIPLE WAS R EITERATED BY THE SUPREME COURT IN THE CASE OF FIRST ADDL. ITO V. MRS. SUSEEL A SADANANDAN [1965] 57 ITR 168 WHERE IT WAS HELD THAT ON THE DEATH OF A PE RSON THE INCOME-TAX OFFICER HAS TO PROCEED AGAINST THE EXECUTOR AND/OR LEGAL REPRESENTATIVE OF THE DECEASED. THE PROPOSITION LAID DOWN BY THE SUPREME COURT IN THE ABOVE CASES WAS FOLLOWED BY THE CALCUTTA HIGH COURT IN TH E CASE OF CIT V. SHANTILAL C. MEHTA [1978] 113 ITR 79 WHERE IT WAS HELD THAT O N THE DEATH OF AN ASSESSEE, HIS ESTATE REMAINS LIABLE FOR PAYMENT OF TAXES ACCRUING BOTH BEFORE AND AFTER HIS DEATH. AFTER THE DEATH OF THE ASSESSE E, THE ASSESSMENT PROCEEDINGS CAN ONLY CONTINUE IN THE NAME OF HIS LE GAL REPRESENTATIVE. THE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT V. C.V . RAGHAVA REDDY [1984] 148 ITR 385 FOLLOWING THE SAME PRINCIPLE HEL D THAT UNDER SECTION 159 A PROCEEDING COULD BE CONTINUED AGAINST THE LEG AL REPRESENTATIVE OF THE DECEASED ASSESSEE ONLY IF IT HAD BEEN INITIATED WHE N THE ASSESSEE WAS ALIVE. IT IS THUS WELL SETTLED THAT AN ASSESSMENT MADE ON A D EAD PERSON WOULD, ON THE FACE OF IT, BE A NULLITY IN LAW. 10. IN THE INSTANT CASE, THE DEPARTMENTAL REPRESENT ATIVE COULD NOT BRING ANY MATERIAL BEFORE US TO SHOW THAT THE IMPUGNED AS SESSMENT ORDER WAS PASSED AFTER ISSUING ANY NOTICE TO THE LEGAL REPRES ENTATIVE OF THE DECEASED INDIVIDUAL. THEREFORE, IN OUR CONSIDERED VIEW, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE. WE, THEREFORE, DISMIS S THE SAME. 6. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL, WE HOLD THAT THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) DATED 30.9.2009 IS BAD IN LAW, AND THEREFORE, WE CANCEL THE SAME, AND ALLOW THE APPEAL OF THE ASSESSEE. IT APPEARS THAT IN THE ABOVE MATTER IT WAS DECIDED THAT A PROCEEDING COULD BE CONTINUED AGAINST THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE ITA NO.2871/AHD/2017 LATE GHANSHYAM H PARSANA VS. ITO ASST.YEAR 2006-07 - 9 - ONLY IF IT HAD BEEN INITIATED WHEN THE ASSESSEE WAS ALIVE. THUS, IT HAS BEEN DECIDED THAT THE ASSESSMENT MADE ON DEAD PERSON, ON THE FACE OF IT, BE A NULLITY IN LAW. IN THE CASE IN HAND, WE FIND THAT WHEN THE FACTUM OF DEATH WAS BROUGHT TO THE NOTICE OF THE AUTHORITIES BELOW, INSTEAD OF SUBSTITUTING THE LEGAL HEIRS OF THE ASSESSEE IN THE FILE OF THE REVE NUE BOTH THE AUTHORITIES BELOW PROCEEDED WITH AND FINALIZED THE ASSESSMENT A GAINST THE ASSESSEE, LATE GHANSHYAM H PARSANA, SINCE DECEASED WHICH IS U NLAWFUL, ARBITRARY, ERRONEOUS AND BAD IN LAW. OUR OBSERVATIONS BECOME STRENGTHEN BY THE RATIO LAID DOWN IN THE ABOVE NARRATED MATTER BY THE CO-OR DINATE BENCH IN IDENTICAL ISSUE AND RESPECTFULLY RELYING ON THE SAM E WE FIND NO MERIT IN THE PROCEEDING ITSELF HAVING BEEN CONTINUED AND FINALIZ ED AGAINST THE DEAD PERSON WHICH IS VOID AB INITIO AND THE SAME IS LIAB LE TO BE QUASHED. WE PASS ORDER ACCORDINGLY. THE ASSESSEES APPEAL IS, THERE FORE, ALLOWED. 9. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 31/08/2020 SD/- SD/- (WASEEM AHMED) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 31/08/2020 TANMAY, SR. PS TRUE COPY TRUE COPY ITA NO.2871/AHD/2017 LATE GHANSHYAM H PARSANA VS. ITO ASST.YEAR 2006-07 - 10 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)- 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 28.07.2020 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 29.07.2020 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 31.08.2020 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 31 .08.2020 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 31.08.2020 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31.08.2020 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER