JUDGMENT
A.K. Mathur, Actg. C.J.
1. This is an income-tax reference at the instance of the Revenue and the following questions have been referred for answer by this court :
“(i) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in dismissing the appeal and holding that the
appeal filed by the Department was a nullity from inception as the appeal was filed against a dead person ?
(ii) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in dismissing the appeal ignoring the provisions of Section 292B of the Income-tax Act, 1961 ?
(iii) Whether, on the facts and in the circumstances of the case, the Tribunal is, justified in dismissing the appeal as nullity from inception without allowing an opportunity to correct the mistake which is apparent from record and which occurred because the Commissioner of Income-tax (Appeals) had described the deceased person as an appellant ?”
2. The assessee, Narayandas Jwalaprasad, died in the year 1981 leaving behind his widow, Smt. Santosh Rani. The assessment in question is for the year 1975-76 and this has been made on August 22, 1980, when the deceased was alive on a total income of Rs. 1,20,060. The assessee appealed against the assessment order dated August 22, 1980, before the Commissioner of Income-tax who disposed of the appeal by order dated July 28, 1983, accepting the assessee’s appeal. Meanwhile, the assessee died on August 31, 1981, during the pendency of the appeal. An appeal was preferred by the Revenue before the Tribunal. In that appeal, the respondent was Narayandas Jwalaprasad. The appeal was presented before the Tribunal on October 18, 1983. This appeal was rejected by the Tribunal on the ground that the appeal was against a dead person. Therefore, an application was made by the Revenue for making a reference before this court and hence the aforesaid three questions have been referred by the Tribunal to this court.
3. It is unfortunate that from the record, an impression was sought to be given that the appeal was filed in the name of Smt. Santosh Rani, the legal representative of the late Shri Narayandas Jwalaprasad. Then a doubt arose as to how the Tribunal could miss such a major thing that in the memorandum of appeal which has been placed on the record of this court, it is by Santosh Rani, the legal representative of the late Narayandas Jwalaprasad. Therefore, the original record was summoned from the Commissioner and Shri Tankha, learned counsel for the Revenue, produced the record before us. It shows that the original appeal was filed on October 13, 1983, against the dead person, Narayandas Jwalaprasad, as he had died on October 31, 1981. Therefore, the Tribunal was right in dismissing the appeal.
4. Another memo of appeal seems to have been filed by the Department to show that the Tribunal is wrong. But this mischief was caught when the original record was summoned. Shri Tankha was specifically asked whether this second appeal which appears to have been filed by Smt. Santosh Rani as a legal representative of the deceased Narayandas Jwalaprasad, is maintainable when the first appeal which was filed by the Revenue, had been rejected by the detailed speaking order. Learned counsel frankly submitted that this second appeal is not envisaged in law and not maintainable. Hence, we are constrained to observe that some mischief is sought to be played by misleading this court by showing that the appeal was filed by the Revenue properly against the legal representative of the late Narayandas Jwalaprasad. Such kind of attempt on the part of the Revenue cannot be countenanced and it is to be condemned.
5. We are of the opinion that the view taken by the Tribunal is justified that no appeal lies against a dead person and that the appeal itself was incompetent and a nullity. Hence, the Tribunal has rightly decided the matter.
6. The reference is answered accordingly.