- (1.) By way of this petition, the Revenue has sought review of the order dt. 16th Sept., 2011 as passed in IT Appeal No. 66 of 2004 whereby, a Coordinate Bench proceeded to dismiss the appeal considering it to have abated for failure on the part of the appellant to bring the legal representatives of the sole respondent on record. The order impugned, in its entirety, reads as under: This appeal is pending since year 2004 and no process fees is being paid for issuance of notice to respondent assessee. In the meantime, this appeal was also dismissed for want of prosecution and in non-compliance of the order earlier though the appeal was disposed of on 13th March, 2008 yet till date no process fee is paid for issuance of notice to respondent assessee. The appeal is pending in default since 2004 onwards till date. That apart, the sole assessee (respondent herein) has also died way back in the year 2005 and this fact was also taken note by this Court in its order sheet dt. 25th July, 2005. No efforts are made to bring his legal representatives on record, though more than six years have been passed. Therefore, no question of issuing any notice to sole respondent who died in the year 2005 as no application was made to bring his legal representatives on record. Appeal therefore abates for not bringing legal representatives of sole respondent Badri Prasad. Appeal thus fails and is dismissed as having become abated.
(2.) In brief, the relevant background aspects of the matter could be noticed in the following: In relation to the proceedings concerning the original assessee Mangi Lal Bhatia (since deceased) under s. 148 of the IT Act, 1961 ('the Act'), the notices were allegedly not issued to all his legal representatives but the AO proceeded to complete the assessment under the order dt. 27th Dec, 1990. In challenge to the order passed by the AO, the basic contention urged before the Commissioner of Income-tax (Appeals), Jodhpur ['the CIT(A)'] was that notices having not been issued to all the legal representatives of the original assessee Mangi Lal Bhatia, the proceedings suffered from fundamental and incurable infirmity, and were wholly without jurisdiction. The CIT(A) upheld such a contention and while allowing the appeal, annulled the assessment by his order dt. 26th Feb., 1993. Then, the appeal filed by the Revenue against the said order dt. 26th Feb. 1993 was dismissed by the Income-tax Appellate Tribunal, Jodhpur Bench, Jodhpur ('the Tribunal') by its order dt. 7th Jan., 2004. The Tribunal affirmed the views of the CIT(A) and held that the proceedings were wholly without jurisdiction for want of notice to all the legal representatives of the deceased assessee.
(3.) Aggrieved by the order so passed by the Tribunal, the Revenue preferred the appeal under s. 260A of the Act, being D.B. IT Appeal No. 66 of 2004 that was admitted by this Court on 3rd Dec, 2004 on the following substantial questions of law: 1. Whether in the facts and circumstances, initiation of proceedings under s. 148 by issuing notice to only one of the LRs of deceased Mangi Lal Bhatia without issue of notices to other LRs was valid initiation of proceedings ? 2. In case the aforesaid question is answered in negative whether the completed assessment in such event becomes a nullity ?;