ORDER
M.C. Agrawal, Judicial Member
1. In these applications under Section 27(1) of the Wealth-tax Act, 1957, Shri K.K. Aggarwal, who was the assessee-respondent in WTA Nos. 159, 160 and 161/Del/87 from which these petitions arise, has been arrayed as a respondent. The petitions were presented on 2-2-1981 and it was on 29th April, 1988 that the Tribunal was informed by the counsel for the erstwhile assessee (deceased) that the said Shri Krishan Kumar Agarwal had died on the 26th April, 1987. The Tribunal’s order by which the aforesaid appeals were decided is dated 17th August, 1987. The revenue has now moved an application dated 4-8-1988 seeking to substitute Shri Arun Kumar Mittal and Shri Ashish Mittal as the legal representatives of the deceased.
2. Objections have been filed on behalf of Shri Arun Mittal, son of the deceased, stating that the applications under Section 27(1) are incompetent as they have been filed against a dead person. It has also been stated that the ITO concerned was informed on 9th March, 1988 about the death of the deceased and that assessment for asst. year 1985-86 has been completed on the legal representatives.
3. We have heard the learned Departmental Representative and Shri C.S. Aggarwal, the learned counsel for the legal representatives of the deceased and have perused the facts brought to our notice. The fact that Shri Krishan Kumar Agarwal, deceased had died before the presentation of the present petitions is not disputed. It has also not been disputed by the revenue that so far as the ITO assessing the deceased was concerned, intimation of the death of the deceased has been given to him on the 9th of March, 1988. Applications under Section 27(1) of the Wealth-tax Act have to be moved by the Commissioner of Wealth-tax and the learned counsel for the assessee told us that no intimation of the death of the deceased was ever given to the Commissioner of Wealth-tax. Therefore, it is patent that when the present petitions were moved by the Commissioner, he had no knowledge that the assessee had died.
4. The learned counsel for the assessee contended that a proceeding against a dead person is a nullity and the legal representatives cannot be brought on record. Reliance was placed on a judgment of Hon’ble the Andhra Pradesh High Court in CIT v. C.V. Raghava Reddy [1984] 148 ITR 385 in which a reference application under Section 256(2) was moved by the Department against a dead person. The Commissioner moved an application to bring the legal representatives on record and the Hon’ble High Court held that the department cannot be permitted to amend the cause title and substitute names of legal representatives in place of deceased. The Hon’ble High Court was of the view that the petition under Section 256(2) be returned to the petitioner and that the petitioner might file fresh applications with an application for condonation of delay in moving the amended petition. Reliance was also placed on Deen Dayal Goyal v. ITAT [1986] 158 ITR 391 in which Hon’ble the Delhi High Court held that the Tribunal had no right to condone delay in the presentation of an appeal in acquisition proceedings. The Hon’ble High Court observed that the special provision exclude the application of the Limitation Act. The learned counsel for the assessee also referred to Order 1 Rule 10 of the Code of Civil Procedure which relates to addition or substitution of parties.
5. On the other hand, the learned Departmental Representative contended that the provisions of the Code of Civil Procedure relating to joinder/non-joinder of parties and relating to bringing on record the legal representatives, abatement of proceedings and setting aside of abatement, have not been made applicable to proceedings under the Income-tax Act and therefore, an application under Section 27(1) of the Wealth-tax Act even if moved against a dead person for want of knowledge of the death is not incompetent and it can be modified by substituting the legal representatives of the deceased.
6. Reliance was placed on a judgment of Hon’ble the Allahabad High Court in CIT v. Chhedi Lal [1987] 163 ITR 304. In that case an assessee had died during the pendency of an appeal by him before the Tribunal. His wife intimated the Tribunal about the death but no formal order for substitution was passed and the proceedings continued in the name of the deceased. A reference before the Hon’ble High Court was also decided in the name of the deceased and it was during the pendency of an application under Section 261 of the Income-tax Act, 1961 that the Commissioner applied for substitution of the legal representative of the assessee. The Hon’ble Allahabad High Court permitted the substitution of the legal representatives of the deceased. The Hon’ble High Court observed that the provisions of the Code of Civil Procedure relating to death of parties and substitution of the legal representatives etc. were not applicable to proceedings under the Income-tax Act and that there was no provision under the Income-tax Act governing the matter.
7. We have given our careful consideration to the respective arguments. In GIT v. I.D. Varshani [1953] 23 ITR 163, the Hon’ble Allahabad High Court held that a reference pending before the High Court does not abate for failure of the Commissioner to apply to bring legal representatives on record. In this case also the Hon’ble High Court had held that the provisions of Order 22 of the Code of Civil Procedure did not apply to income-tax matters. A similar view was taken by Hon’ble the Calcutta High Court in Cir v. Gourishankar Lal Singha [1967] 63 ITR 711. The Hon’ble Rajasthan High Court also took a similar view in CIT v. H.H. Maharaja Shri Sawai Man Singh of Jaipur [1973] 89 ITR 123 and held that a reference under Section 66(2) of the Indian Income-tax Act, 1922 did not abate on the death of the assessee. The Hon’ble High Court held that an application under Section 66(2) was not a civil proceeding within the meaning of Section 141 of the Civil Procedure Code and Order 22 of the C.P.C. was also not applicable. The ruling in the case of Deen Dayal Goyal (supra) relied upon by the learned counsel for the legal representative did not apply to the present case because it relates to an appeal against an order of acquisition for which a specific period is prescribed under the Income-tax Act. So far as the ruling in C.V. Raghava, Reddy’s case (supra) is concerned, that was also with reference to an application under Section 256(2) made before Hon’ble the High Court. We are at present concerned with an application under Section 27(1) of the Wealth-tax Act which is an application made to the Tribunal itself and is in one sense a continuation of the appeal itself inasmuch as it requires the Tribunal to seek advisory opinion of the High Court on a question of law involved in the appeal. The judgment of Hon’ble the Allahabad High Court in Chhedi Lal’s case (supra) is, therefore, more apposite to the issue before us. As already stated in that case, it was an application under Section 261 of the Income-tax Act for issue- of a certificate for leave to appeal to the Supreme Court that had been filed before the High Court after the death of the assessee and the Hon’ble High Court held that the application could be allowed to be amended by bringing the legal representatives on record.
8. The provisions of order of Rule 10 were also referred to by the learned counsel for the assessee. Order 1 Rule 10 cannot in terms apply to the present proceedings because that has not been made applicable to tax proceeding’s. Under the provisions of the Income-tax Act as well as the Wealth-tax Act, there were no provisions specifying the manner and the time in which the legal representative should be brought on record and has already pointed out there are also no provisions specifying who shall be the parties in particular proceedings. In the Form No. 37 prescribed under the Income-tax Rules for the presentation of a reference application under Section 256(1) of the Income-tax Act, 1961, though there is a column indicating the names of the parties i.e. the applicant and the respondent, there is nothing anywhere to indicate that an erroneous description of one or the other would nullify the application. Rule 26 of the Income-tax Appellate Tribunal Rules, 1963 provides that where an appellant or respondent dies etc., the appeal shall not abate and may be continued by or against the executor, administrator or other legal representative of the assessee. This rule also does not specify the time within which the legal representative of a party must be brought on record.
9. Considering the various authorities referred to above and the various provisions of law, we are of the view that the present reference applications moved by the revenue arraying as respondent a person who was already dead are not invalid or non est and can be permitted to be amended by substituting the names of the legal representatives in place of the assessee. We, therefore, allow the application moved on behalf of the applicant and direct that the legal representatives be substituted as respondents to these petitions as prayed in the revenue’s application dated 4-8-1988.