N.D.OJHA, J. - (1.) THE Tribunal, Allahabad Bench, Allahabad has referred the following question to this Court for its opinion by its order dt. 10th July, 1979. "Whether on the facts and in the circumstances of the case the Tribunal was correct in law in holding that the IAC had no jurisdiction to pass the order of penalty under S. 271(1)(c) of the Act on the date on which it was passed ?" This reference has been numbered as IT Ref. No. 273 of 1979. An application has been made on behalf of the legal representatives of Narsing Das assessee opposite-party on 29th Aug., 1985 stating that Narsingh Das died on 7th April, 1981 and since no application has been made to substitute his legal representatives the reference stands abated. For the applicant CIT on the other hand it has been urged that in view of S. 159 (3) of the IT Act, 1961 the legal representatives of the deceased shall, for the purposes of this Act be deemed to be the assessee. According to him in this view of the matter the legal representatives of the deceased assessee have themselves become assessee on the death of the assessee and there is no question of abatement. Emphasis was placed on the word, "deemed to be an assessee". For the legal representatives of the deceased assessee reliance on the other hand was placed on Chapter VIII, r. 38A of the Rule of Court which inter alia provides that the provisions contained in rr. 1 to 6 and 9 of Order 22 of the CPC shall apply to Tax Acts References also. According to him in view of the said Rules it was necessary for the applicant to make an application to substitute the legal representatives of the deceased assessee and that not having been done the reference has abated. Counsel for the legal representatives of the deceased assessee also urged that even on merits there was no substance in the reference inasmuch as the question referred to for this Court's opinion has already been decided by a Division Bench of this Court in CIT vs. Om Sons, Dehradun 1978 CTR (All) 407 : (1979) 116 ITR 215 (All).
(2.) COUNSEL for the Department in this connection has submitted that some other High Courts have not agreed with the view taken by this Court in the case of Om Sons. Dehradun. He, however, candidly conceded that so far as this Court is concerned the decision in the case of Om Sons, Dehradun still holds good and has indeed been followed thereafter in a number of other cases. Having heard counsel for the parties we find no good ground to take a view contrary to that taken in the case of Om Sons (supra). Since the question referred to this Court for its opinion already stands decided by the decision in the case of Om Sons (supra), we are of opinion that it is not necessary in the instant case to go into the question as to whether the reference has abated or not. Suffice it to say for the purposes of this reference that the legal representatives of the deceased assessee today are represented by their counsel and we have heard him before deciding the reference on merits.
(3.) IN order to indicate that this case is covered by the decision in the case of Om Sons (supra) it is necessary to point out that assessment in this case was made on 17th March, 1975. Thereafter the ITO initiated penalty proceedings and referred the matter to the IAC under S. 274(2) of the Act for proper action and the IAC in his turn issued a show cause notice. The order of imposing penalty was passed on 22nd Nov., 1976 by the IAC. All this was done after the amendment of S. 271(2) of the IT Act w.e.f. 1st April, 1971 by the Taxation Laws (Amendment) Act, 1976. The effect of this amendment was that the IAC had on the relevant date no jurisdiction to pass any order of the penalty.;