Smt Late Rosamma Sebastian by L/hr Jojo Sebastiann, Cochin V. ACIT(H), Trivandrum

ITA 482/COCH/2010

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68974 (ITAT-COCHIN)
• Duration Of Justice: 3 year(s) 1 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-09-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 11-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

ITA NO. 482/COCH/2010 1 IN THE INCOME TAX APELALTER TIBUNAL COCHIN BENCH , COCHIN BEFORE S/SH RI N.R.S. GANESAN, JM & B. R. BASKARAN, AM ITA NO. 482 /COCH/ 2010 (ASST YEAR 2006 - 07 ) SMT ROSAMMA SEBASTIAN(LATE) REPRESENTED BY L/H SHRI JOJO SEBASTIAN H NO. 215 GIRI NAGAR, KADAVANTHRA, KOCHI 682 020 2.JOSE SEBASTIAN H NO. 215 GIRI NAGAR, KOCHI 682 020 3. MARYKUTTY SOJAN SEBASTIAN H NO. 215 GIRI NAGAR, KOCHI 682 020 4. SHYAM SOJHAN SEBASTIAN H NO. 215 GIRI NAGAR, KOCHI 682 020 5. SMT MARIAMMA CHERIAN 11045 LANDSWALLK, DOOR NO 102 HOUSTON TH 770991,USA 6 ELSY SCARIA NO. 127 MYTHRI APARTMENTS, THANTHONNIAMMAN KOIL STREET, VILLIVAKKAM CHENNAI 49 7 SMT JESSY DEVASIA C/O DR TOM DEVASIA MD DM ASST PROFESSOR, DEPT OF CARDIOLOGY KASTURBA MEDICAL COLLEGE HOSPITAL MANIPAL - 576 104, KARNATA KA 8. ANU PAUL - C/O PAUL D MENACHERY 1006 MAYA HEIGHTS - PATTURAIKKAL THIRUVAMBADI PO, THRISSUR VS THE ASST COMMR OF INCOME TAX(H) TRIVANDRUM ( APPELLANT) (RESPONDENT) PAN NO. AJGPR 40650 ASSESSEE BY SHRI T JOHN GEORGE REVENUE BY SMT VIJAYAPRABH A, JR DR DATE OF HEARING 17 TH SEPT 2013 DATE OF PRONOUNCEMENT 20 TH SEPT 2013 OR D ER PER N.R.S G A N ESAN,JM : THE LEGAL HEIR OF SMT ROSAMMA SEBASTIAN FILED THE APPEAL AGAINST THE ORDER OF THE CIT(A) - I, TRIVANDRUM DATED 28 TH OCT 2009 FOR THE AY 2006 - 07 . ITA NO. 482/COCH/2010 2 2 SHRI T JOHN GEORGE, THE LD COUNSEL FOR THE APPELLANT S SUBMITTED THAT THE ASSESSEE SMT ROSAMMA SEBASTIAN DIED ON 3.12.2008. THE ASSESSEE PLACED THE COPY OF THE DEATH CERTIFICATE ISSUED BY THE COCHIN CORPORATION AT PAGES 11 AND 12 OF THE PAPER BOOK. THE LD COUNSEL FURTHER SUBMITTED THAT THE ASSESSMENT ORDER WAS PASSED ON 31.12.2008 MUCH AFTER THE DEATH OF THE ASSESSEE. THEREFORE, THE LD COUNSEL SUBMITTED THAT THE ASSESSMENT ORDER PASSED BY THE AO AGAINST THE DEATH PERSON , IS NULLITY AND NOT ENFORCEABL E. 2 ON THE CONTRARY, SMT VIJAYAPRABHA, LD DR SUBMITTED THAT THE AO COMPLETED THE HEARING W E LL BEFORE THE DEATH OF THE ASSESSEE SMT ROSAMMA SEBASTIABN. ACCORDING TO THE LD DR, THE DEATH OF THE ASSESSEE WAS NOT BROUGHT TO THE NOTICE OF THE AO. MOREOVER , THE LEGAL HEIRS HAVE ALREADY FILED THE APPEALS BEFORE THE CIT(A) AN D BEFORE THIS TRIBUNAL; T HEREFORE, THE ASSESSEE NOW CANNOT SAY THAT THE ORDER PASSED BY THE AO IS NULLITY. 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND PERUSED THE RELEV ANT MATERIAL ON RECORD . THE PROCEEDING BEFORE THE AO IS JUDICIAL PROCEEDINGS. IT IS WELL SETTLED PRINCIPLE S OF LAW THAT NO ORDER COULD BE PASSED AGAINST A DEA D PERSON. IN THIS CASE, ADMITTEDLY, THE ASSESSEE DIED ON 3.12.2008. THEREFORE, THE ASSESSMENT ORDER PASSED ON 31.12.2008 IS NULLITY IN THE EYES OF LAW. IN OTHER WORDS, ASSESSMENT ORDER DATED 31.10.2008 PASSED AGAINST DECEASED ASSESSEE IS NOT IN EXISTENCE IN THE EYES OF LAW. 3.1 SECTION 159(2) OF THE I T ACT PROVIDES FOR CONTINUATION OF LEGAL PROC EEDINGS AGAINST THE LEGAL REPRESENTATIVE FROM THE STAGE AT WHICH IT STOOD ON THE DATE OF THE DEATH OF THE DECEASED. THEREFORE, IT IS UPTO THE AO T O PROCEED FURTHER AFTER IMPLEADING THE L EGAL REPRESENTATIVE OF THE ITA NO. 482/COCH/2010 3 DECEASED ASSESSEE IN THE ASSESSMENT PROCEED INGS . W ITHOUT IMP LEA DING THE L EGAL REPRESENTATIVE; THE AO CANNOT PASS ANY ORDER AGAINST A DECEASED PERSON. SINCE THE ASSESSEE EXPIRED DURING THE PENDENCY OF THE PROCEEDINGS BEFORE THE AO, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE LEGAL REPRESENT ATIVE CANNOT BE IMP LEADED IN THE APPELLATE PROCEEDINGS AT THE INSTANT OF THE LEGAL REPRESENTATIVE. THE LEGAL REPRESENTATIVES OUGHT TO HAVE BEEN IMP LEAD ED BEFORE THE AO IN THE ASSESSMENT PROCEEDINGS. THEREFORE, THE TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE APPEAL FILED BY THE LEGAL REPRESENTATIVE OF THE DECEASED PERSON IS ALSO NOT MAINTAINABLE. SINCE THE ORDER OF THE AO IS NULL AND VOID, IT CANNOT BE ENFORCED. 4 IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE APPEAL FILED BY T HE LEGAL REPRESENTATIVE OF THE DECEASED PERSON IS NOT MAINTAINABLE. HOWEVER , IT IS MADE CLEAR THAT IT IS UP TO THE AO TO IMP LEA D THE LEGAL REPRESENTATIVE OF THE DECEASED ASSESSEE AND PROCEED FURTHER FROM THE STAGE AT WHICH IT STOOD ON THE DATE OF THE DE ATH OF THE DECEASED ASSESSEE. WITH THE ABOVE OBSERVATION, THE APPEAL FILED BY THE ASSESSEE STAND S DISMISSED. 5 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF SEPT 2013. SD/ - SD/ - ( B.R. B ASKARAN) ( N .R.S GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN: DATED 20 TH SEPT 2 013 RAJ* ITA NO. 482/COCH/2010 4 COPY TO: 1. APPELLANT SMT ROSAMMA DSEBASTIAN (LATE) REPRESENTED BY L/H SHRI JOJO SEBASTIAN,H NO. 215 GIRI NAGAR, KADAVANTHRA, KOCHI 682 020 2.JOSE SEBASTIAN H NO. 215 GIRI NAGAR, KOCHI 682 020 3. MARYKUTTY SOJAN SEBASTIAN H NO. 215 GIRI NAGAR, KOCHI 682 020 4. SHYAM SOJHAN SEBASTIAN H NO. 215 GIRI NAGAR, KOCHI 682 020 5. SMT MARIAMMA CHERIAN 11045 LANDSWALLK, DOOR NO 102 HOUSTON TH 770991,USA 6 ELSY SCAR IA NO. 127 MYTHRI APARTMENTS, THANTHONNIAMMAN KOIL STREET, VILLIVAKKAM CHENNAI 49 7 SMT JESSY DEVASIA C/O DR TOM DEVASIA MD DM ASST PROFESSOR, DEPT OF CARDIOLOGY KASTURBA MEDICAL COLLEGE HOSPITAL MANIPAL - 576 104, KARNATAKA 8. ANU PAUL - C/O PAUL D MENACH ERY 1006 MAYA HEIGHTS - PATTURAIKKAL THIRUVAMBADI PO, THRISSUR 2 RESPONDENT THE ASST COMMR OF INCOME TAX (H), TRIVANDRUM 3 CIT(A) 4 CIT . TRIVANDRUM 5 DR 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN