P.N. Parashar, J.M. - (1.) THIS miscellaneous application, filed by the assessee, arises out of the order dated 12-12-2003 rendered in ITA Nos. 3046 and 3049/Del./2000.
(2.) Shri C.S. Aggarwal, Sr. Advocate appeared for the assessee whereas Shri Jyoti Shankar, Sr. Departmental Representative represented the revenue. In paras 1 to 4 of the miscellaneous application it is averred that the ITAT committed an error in recording an incorrect finding in regard to the fact that the assessment had been made on the legal heir of the deceased assessee, who was representing him. Para 4 of the miscellaneous application contains the allegation that while allowing the appeal of the revenue and reversing the finding of learned Commissioner (Appeals), the Tribunal has recorded incorrect finding of fact. Para 4 of the miscellaneous application is as under: "4. It is most respectfully submitted that while allowing the appeals of the revenue and reversing the findings of the learned Commissioner (Appeals), as it will be apparent from the above, that the very basis contention of the assessee has been rejected by recording an incorrect finding of fact by the Hon'ble Bench. In fact in the instant case as a matter of fact, the Income Tax Officer did not serve notices on all the legal representatives of the deceased assessee. The notice under section 148 was served only to one of the legal representatives of the deceased. However, while passing the final order, he framed an assessment against the deceased assessee against the provisions of the law. It is thus most humbly submitted that there has not been disposal of the appeal in accordance with law and, it has been erroneously held that in this case the assessment was passed on the legal heir of the assessee who was representing the deceased and not against the deceased person."
(3.) IN paras 5 and 6 of the miscellaneous application, it has been pleaded that the Tribunal has omitted to deal with certain judicial pronouncements to which reference was made on behalf of the assessee in support of the contention that the assessment order made after the death of the assessee was nullity in law. IN this regard reference has been made to the following decisions: CIT v. Amarchand N. Shroff (1963) 48 ITR 59 (SC); CIT v. James Anderson (1964) 51 ITR 345 (SC); and ITO v. Ram Prasad (1968) 70 ITR 59 (All.) ITO v. Ram Prasad (1972) 86 ITR 145 (SC).;