Pr. Commissioner Of Income Tax-2, Jodhpur vs Sita Badoliya

This income tax appeal is directed against the order dated 19.3.18 passed by the Income Tax Appellate Tribunal ('ITAT'), Jodhpur Bench, Jodhpur in ITA No.399/Jodh/2016, whereby the appeal preferred by the Revenue against the order dated 30.8.16 passed by the Commissioner of Income Tax (Appeals)-2, Jodhpur, has been dismissed.

The appellant has preferred an application (No.2/19) to bring the legal representatives of deceased respondent on record. It is stated that respondent-Smt. Sita Badoliya had expired on 7.10.17, however, this fact was not brought on record and therefore, no steps could be taken to bring the legal representatives of deceased respondent on record before the ITAT. It is prayed that the legal representatives of deceased respondent may be taken on record in the present appeal.

Learned counsel appearing for the proposed legal representatives of deceased respondent submits that the order under appeal has been passed by the ITAT without substitution of the legal representatives of deceased respondent is nullity in the eyes of law, deserves to be set aside and question of substitution of the legal representatives as prayed for in the present appeal does not arise. Learned counsel submitted that the proposed legal representatives have right to contest the application seeking substitution inasmuch as, the substitution prayed for can be allowed only if they represent the estate of the deceased and therefore, while setting aside the order under appeal, the matter may be remanded to the ITAT.

Learned counsel for the appellant has no objection if the order under appeal is set aside and the matter is remanded to the ITAT.

Indisputably, the order passed in favour of or against the dead person is nullity. It is not disputed before this Court that the respondent had expired prior to institution of the present appeal and therefore, the question of substitution of the legal representatives of the deceased respondent in the present appeal does not arise. Obviously, the proposed legal representatives has right to contest the application seeking substitution, if any prayed for.

In this view of the matter, it would be appropriate to set aside the order under appeal and remand the matter back to the ITAT to pass order afresh in accordance with law.

Accordingly, the order under appeal is set aside. The matter is remanded to the ITAT to pass the order afresh after substitution of the person representing the estate of the deceased if any, in accordance with law.

The appeal so also the application (No.2/19) stand disposed of accordingly.