Commissioner Of Income Tax-Central, New Central Revenue Building, Statute Circle, Jaipur (Raj v. Gaurav Kumar Sharma, (Since Deceased) Through Legal Heirs

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 68 / 2014 Commissioner of Income Tax-Central, New Central Revenue Building, Statute Circle, Jaipur (Raj.), ----Appellant Versus 1. Gaurav Kumar Sharma, (Since Deceased) through legal heirs:- 1/1Smt. Veena Sharma W/o Late Shri Gaurav Kumar Sharma, 1/2Miss Bhargavi Sharma D/o Late Shri Gaurav Kumar Sharma, 1/3Master Nilangan Sharma S/o Late Shri Gaurav Kumar Sharma, No. 1/2 and 1/3 are minors through their naturalguardian mother Smt. Veena Sharma W/o Late Shri Gaurav KumarSharma, All are resident of D-131, Gautam Marg, Kings Road,Nirman Nagar, Jaipur. ----Respondent/Assessee Connected With D.B. Income Tax Appeal No. 78 / 2014 Commissioner of Income Tax-Central, New Central Revenue Building, Statute Circle, Jaipur (Raj.), ----Appellant Versus 1. Gaurav Kumar Sharma, (Since Deceased) through legal heirs:- 1/1Smt. Veena Sharma W/o Late Shri Gaurav Kumar Sharma, 1/2Miss Bhargavi Sharma D/o Late Shri Gaurav Kumar Sharma, 1/3Master Nilangan Sharma S/o Late Shri Gaurav Kumar Sharma, No. 1/2 and 1/3 are minors through their naturalguardian mother Smt. Veena Sharma W/o Late Shri Gaurav KumarSharma, All are resident of D-131, Gautam Marg, Kings Road,Nirman Nagar, Jaipur. ----Respondent/Assessee D.B. Income Tax Appeal No. 79 / 2014 Commissioner of Income Tax-Central, New Central Revenue Building, Statute Circle, Jaipur (Raj.), ----Appellant Versus 1. Gaurav Kumar Sharma, (Since Deceased) through legal heirs:- 1/1Smt. Veena Sharma W/o Late Shri Gaurav Kumar Sharma, 1/2Miss Bhargavi Sharma D/o Late Shri Gaurav Kumar Sharma, 1/3Master Nilangan Sharma S/o Late Shri Gaurav Kumar Sharma, No. 1/2 and 1/3 are minors through their naturalguardian mother Smt. Veena Sharma W/o Late Shri Gaurav KumarSharma, All are resident of D-131, Gautam Marg, Kings Road,Nirman Nagar, Jaipur. --Respondent/Assessee _____________________________________________________ For Appellant(s) : Mr. Sameer Sharma &Mr. Gourav Gaur on behalf ofMr. Anil Mehta For Respondent(s) :Mr. N. L. Agarwal _____________________________________________________ HON'BLE MR. JUSTICE K.S.JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYAS Judgment 12/10/2017 1. In all these appeals since identical questions of law and factsare involved, they are decided by this common judgment. 2.By way of these appeals, the appellant has challenged thejudgment and order of the Tribunal whereby the Tribunal haspartly allowed the appeal of the assessee and dismissed the appeal of the department. 3.This court while admitting the appeals framed the following questions of law:- 1. D.B. Income Tax Appeal No. 68/ 2014 ““Whether the ITAT was right in law in deleting theaddition of Rs.55,20,250/- stating that same reasoningapplies in the present AY as applied in the AY 2008-09,in the case of the assessee, without specifying how theevidence discussed in the assessment order and in theorder of the CIT (A) could not be relied upon.?” 2. D.B. Income Tax Appeal No. 78/ 2014 “Whether on the facts and in circumstances of thecase, the ITAT was justified in law in deleting the additionof Rs.41,20,000/- made on account of profit earned onsale of lands at Hanumanpura, Jaipur holding thatassessee was just a broker ignoring the admission of theassessee u/S.132(4) quoted in the assessment order thatthe land transactions were made by him in his individualcapacity and ignoring vital evidence in the form ofagreement of land transactions dated 07.04.2007 &23.11.2007 and ignoring other evidence discussed atlength in the assessment order.?” 3. D.B. Income Tax Appeal No. 79/ 2014 2. D.B. Income Tax Appeal No. 78/ 2014 “Whether on the facts and in circumstances of thecase, the ITAT was justified in law in deleting the additionof Rs.41,20,000/- made on account of profit earned onsale of lands at Hanumanpura, Jaipur holding thatassessee was just a broker ignoring the admission of theassessee u/S.132(4) quoted in the assessment order thatthe land transactions were made by him in his individualcapacity and ignoring vital evidence in the form ofagreement of land transactions dated 07.04.2007 &23.11.2007 and ignoring other evidence discussed atlength in the assessment order.?” 3. D.B. Income Tax Appeal No. 79/ 2014 “1.Whether on the facts and in circumstances ofthe case, the ITAT was justified in law in deleting theaddition of Rs.2,61,57,380/- made u/S.69B onaccount of undisclosed investment in lands atHanumanpura, Jaipur holding that assessee was justa broker ignoring the admission of the assessee thatthe land transactions were made by him in hisindividual capacity and ignoring vital evidence in theform of agreement of land transactions dated07.04.2007 & 23.11.2007 and ignoring otherevidence discussed at length in the assessment order.2. Whether on the facts and in circumstances ofthe case, the ITAT was justified in law and has notacted perversely in deleting the additions u/S.69B onaccount of undisclosed investment of Rs.12,71,000/-ignoring evidence and admission of the assessee?” 4. Initially, Mr. Agarwal counsel for the respondent has raised a contention that the appeals are abated and has relied upon the decision in the case of Union of India Vs. Ram Charan(Deceased) (1964) 3 SCR 467 : AIR 1964 SC 215, wherein it has been held as under:- 4. Initially, Mr. Agarwal counsel for the respondent has raised a contention that the appeals are abated and has relied upon the decision in the case of Union of India Vs. Ram Charan(Deceased) (1964) 3 SCR 467 : AIR 1964 SC 215, wherein it has been held as under:- “17. In the present case, the appellant had adopteda very wrong attitude from the very beginning. In itsapplication dated March 17, it merely said that RamCharan died on July 21, 1957, and that Shri Bhatia, theDivisional Engineer, Telegraphs, Ambala Cantonment,learnt about it on February 3, 1958. Shri Bhatia did notsay anything more in his affidavit and did not verify iton the basis of his personal knowledge. Why he did notdo so is difficult to imagine if he came to know of thedeath on February 3, 1958. He was the best person tosay that this statement was true to his knowledge,rather than true to his belief. Further, it appears fromthe judgment of the High Court that no furtherinformation was conveyed in the application dated May13, 1958 which is not on the record. The mostdamaging thing for the appellant is that the applicationcame up for hearing before the learned Single Judgeand at that time the stand taken by it was thatlimitation for such an application starts not from thedate of death of the respondent but from the date ofthe appellant's knowledge of the death of therespondent. The appellant's case seems to have beenthat no abatement had actually taken place as thelimitation started from February 3, 1958, when theappellant's officer knew of the death of the respondentand the application was made within 3 months of thatdate. It appears to be due to such an attitude of theappellant that the application dated March 17, 1958purported to be simply under r. 4 O. XXII and did notpurport to be under r. 9 of the said Order as well andthat no specific prayer was made for setting aside theabatement. The limitation for an application to setaside abatement of a suit does start on the death of thedeceased respondent. Article 171, First Schedule to theLimitation Act provides that. It does not provide thelimitation to start from the date of the appellant'sknowledge thereof. The stand taken by the appellantwas absolutely unjustified and betrayed complete lackof knowledge of the simple provision of the LimitationAct. In these circumstances, the High Court cannot besaid to have taken an erroneous view about theappellant's not establishing sufficient ground for notmaking an application to bring on record therepresentatives of the deceased respondent within timeor for not making an application to set aside theabatement within time. We, therefore, see no force in this appeal and dismiss it with costs.” 5.However, counsel for the appellant has relied on the decisionin the case of Commissioner of Income-Tax And Another V/sSmt. V. Rukmini [2011] 331 ITR 102 (Karn), wherein it has been held as under:- “10. Section 159 of the Act deals with the liability ofthe legal representatives to pay of tax under the Act whichreads as under: 159 (1) Where a person dies, his legal representativeshall he liable to pay any sum which the deceased wouldhave been liable to pay if he had not died, in the likemanner and to the same extent as the deceased. (2) For the purpose of making an assessment (includingan assessment, reassessment or recomputation underSection 147) of the income of the deceased and for thepurpose of levying any sum in the hands of the legalrepresentative in accordance with the provisions of Sub-section(1). (a) any proceeding taken against the deceased beforehis death shall be deemed to have been taken againstthe legal representative and may be continued againstthe legal representative from the stage at which it stoodon the date of the death of the deceased: (b) any proceeding which could have been taken againstthe deceased if he had survived, may be taken againstthelegalrepresentative:and (2) For the purpose of making an assessment (includingan assessment, reassessment or recomputation underSection 147) of the income of the deceased and for thepurpose of levying any sum in the hands of the legalrepresentative in accordance with the provisions of Sub-section(1). (a) any proceeding taken against the deceased beforehis death shall be deemed to have been taken againstthe legal representative and may be continued againstthe legal representative from the stage at which it stoodon the date of the death of the deceased: (b) any proceeding which could have been taken againstthe deceased if he had survived, may be taken againstthelegalrepresentative:and (c) all the provisions of this Act shall apply accordingly. (3) The legal representative of the deceased shall, forthe purposes of this Act, be deemed to be an Assessee. (4) Every legal representative shall be personally liablefor any tax payable by him in his capacity as legalrepresentative if, while his liability for Tax remainsundischarged, he creates a charge on or disposes of orparts with any assets of the estate of the deceased,which are in or may come into, his possession, but suchliability shall be limited to the value of the asset socharged,disposedoforpartedwith. (5) The provisions of Sub-section (2) of Section 161, Section 162, and Section 167, shall, so far as may beand to the extent to which they are not inconsistentwith the provisions of this section apply in relation to alegalrepresentative. representative. (6) The liability of a legal representative under thissection shall, subject to the provisions of Sub-section(4) and Sub-section (5) be limited to the extent towhich the estate is capable of meeting the liability. 11. A perusal of the aforesaid provision makes it clearthat the death of a person who is liable to pay tax underthe Act would not get extinguished on account of hisdeath. If he dies, his legal representative shall be liableto pay any tax which would have been liable to be paidto by such person if he had not died. Sub-section (2)makes the position clear that for the purpose ofassessment, reassessment or recomputation underSection 147 of the Act, any proceeding taken againstthe deceased before his death shall be deemed to havebeen taken against the legal representative and may becontinued against the legal representative from thestage at which it stood on the date of death of thedeceased. The language employed in this Sub-sectionmanifests the intention of the legislature whichexpressly provides on the death of a person anyproceeding by way of assessment, reassessment, orrecomputation initiated under the Act is deemed to havebeen initiated against the legal representative himselfand therefore, it can be continued from the stage atwhich it stood on the death of the deceased. Therefore,the concept of abatement is completely excluded inthese proceedings. Sub-section (2)(b) makes it cleareven if proceedings had not been initiated against thedeceased during his life time, such proceedings mayalso be initiated against the legal representative afterhis death. Whether the proceedings are initiated underClause (a) or Clause (b), the provisions of the Act shallapply. Sub-section (3) expressly provides that the legalrepresentative of the deceased shall, for the purpose ofthis Act, be deemed to be an Assessee. Therefore, theaforesaid provision makes it clear that, once the liabilityis incurred under the Act, the said liability is to bedischarged either by the person who is liable to pay taxunder the Act or by his legal representatives, if he hasnot discharged the liability during his life time. Death ofa person/Assessee do not in any way extinguish theliability under the Act. However, such a tax is to beleviedinaccordancewiththeAct. 12. The Full Bench of Madras High Court in the case ofState of Tamil Nadu v. Arulmurugan and Co. 1982 51 12. The Full Bench of Madras High Court in the case ofState of Tamil Nadu v. Arulmurugan and Co. 1982 51 381 considering the scope of the Appellate jurisdictionhasheldasunder: asunder: "An appellate authority under the taxing enactments sitsin appeal, only in manner of speaking. What it does,functionally, is only to adjust the assessment of theAppellant in accordance with the facts on the record andin accordance with the law laid down by the legislature.An appeal is a continuation of the process ofassessment, and an assessment is but another name foradjustment of the tax liability to accord with the taxableevent in the particular tax-payer's case. There can be noanalogy or parallel between a tax appeal and an appeal,say, in civil cases. A civil appeal, like a law suit in thecourt of' first instance out of which it arises, is reallyand truly an adversary proceeding, that is to say, acontroversy or tussle over mutual rights and obligationsbetween contesting litigants ranged against each otheras opponents. A tax appeal is quite different. Even asthe assessing authority is not the tax-payer's"opponent", in the strictly procedural sense of the term,so too the appellate authority sitting in appeal over theassessing authority's order of assessment is not strictlyan arbitral tribunal deciding a contested issue betweenlitigants ranged on opposite sides. In a tax appeal, theappellate authority is very much committed to theassessment process. The appellate authority can itselfenter the arena of assessment, either by pursuingfurther investigation or causing further investigation tohe done. It can do so on its own initiative, without beingprodded by any of the parties. It can enhance theassessment taking advantage of the opportunityafforded by the tax-payer's appeal even though theappeal itself has been mooted only with a view to areduction in the assessment. These are special andexceptional attributes of the jurisdiction of a taxappellate authority. These attributes underline the truththat the appellate authority is no different, functionallyand substantially, from the assessing authority itself.This position has been well brought out in more thanonedecisionoftheSupremeCourt."13. Therefore, in a tax appeal the appellate authority isno different functionally and substantially from theassessing authority itself. An appeal is a continuation ofthe process of assessment. The appellate authority canitself enter the arena of assessment either by pursuingfurther investigation or causing further investigation tobe done. It can do so on its own initiative. It canenhance assessment in the Assessee appeal. Theintention of the legislature in enacting Section 159 ofthe Act is very clear and therefore, either before theAssessment Authority or in the appeal before the Commissioner of Appeals, there is no question ofabatement of the proceedings initiated against theperson under the Act on account of his death. After hisdeath the proceedings would be continued against hislegalrepresentatives. 14. The position is different in the case of second appealbefore the Tribunal. The procedural law before theTribunal is governed by the Income Tax (AppellateTribunal) Rules, 1963. These Rules are framed by theAppellate Tribunal in exercise of the powers conferredby Sub-section (5) of Section 255 of the Act. Rule 26deals with continuation of proceeding's after the deathor adjudication of a party to the proceedings whichreadsasunder: Commissioner of Appeals, there is no question ofabatement of the proceedings initiated against theperson under the Act on account of his death. After hisdeath the proceedings would be continued against hislegalrepresentatives. 14. The position is different in the case of second appealbefore the Tribunal. The procedural law before theTribunal is governed by the Income Tax (AppellateTribunal) Rules, 1963. These Rules are framed by theAppellate Tribunal in exercise of the powers conferredby Sub-section (5) of Section 255 of the Act. Rule 26deals with continuation of proceeding's after the deathor adjudication of a party to the proceedings whichreadsasunder: "26. Where an Assessee whether he be the Appellant orthe Respondent to an appeal dies or is adjudicatedinsolvent or in the case of a company is being wound upthe appeal shall not abate and may if the Assessee wasthe Appellant, be continued by and if he was theRespondent be continued against, the executoradministrator or other legal representative of theAssessee or by or against the assignee, receiver orliquidator,asthecasemaybe."15. Therefore, it is obvious this underlying principle ofno abatement upon the death of the Assessee equallyapplies to the appeal before the Tribunal. The aforesaidRule expressly states, the appeal shall not abate. It is inconformity with the principle underlying Section 159 oftheAct. 16. Now, the question is, what is the legal position in anappeal before the High Court under Section 260A of theAct. This is a provision which was introduced into theAct substituting Sub-heading CC and Section 260A andB by Finance (No. 2) of 1988 with effect from1.10.1998. Therefore, it is necessary to find out whatwas the position earlier to the amendment. Prior to theaforesaid amendment, Section 256(1) of the Actprovided for making an application by the Assessee orthe Commissioner requiring the Appellate Tribunal torefer to the High Court any question of law arising outof the order of the Tribunal. Sub-section (2) provided forthe parties approaching the High Court in the event of arequest made in Section 256(1) of the Act is refused bythe Tribunal. In a proceeding under Section 256(1) or(2) of the Act, which was pending before the HighCourt. if the Assessee dies, it was well settled that therewas no abatement of such reference. In fact, the PatnaHigh Court, in the case of Additional Commissioner ofIncome Tax, Bihar v.S. Surjit Singh reported in Income Tax Reports Vol.101 1975) dealing with the saidquestion reviewing the entire case law has held asunder: "The Income Tax Act contains provisions in Sections256-260 in respect of references under the Act. Next itprovides in Sections 261-262 for appeals to theSupreme Court. Section 256 lays down how a statementof the case is to he drawn up and referred to the HighCourt. Section 257 provides for a similar statement ofcase to the Supreme Court in certain cases. Section 258is in respect Tax Reports Vol.101 1975) dealing with the saidquestion reviewing the entire case law has held asunder: "The Income Tax Act contains provisions in Sections256-260 in respect of references under the Act. Next itprovides in Sections 261-262 for appeals to theSupreme Court. Section 256 lays down how a statementof the case is to he drawn up and referred to the HighCourt. Section 257 provides for a similar statement ofcase to the Supreme Court in certain cases. Section 258is in respect of the power of the High Court or the Supreme Court.Section 259 provides how the case is to he heard by theHigh Court and Section 260 lays down how the decisionof the High Court or the Supreme Court is to be given.Section 261 provides for appeal to the Supreme Courtand Section 262 provides for the manner in which theappeal is to be heard by that court. It will appear fromthe aforesaid provisions relating to the High Court thatthere is no procedure similar to that as laid down underOrder XXII of the Code contained in this Act. For thematter of that so far as High Courts are concerned,these provisions do not make the provisions of OrderXXIIof the Code applicable to cases of reference. I willdo well, however, to point out that in respect of theappeal to the Supreme Court. Section 262 of the Actclearly states that the provisions of the Code relating toappeals to the Supreme Court shall, so far as may be,apply in the case of appeals under Section 261 of theAct as they apply in the case of appeals from decrees ofa High Court. It is significant that in respect of appealsto the Supreme Court, the Code in its relevant parts ismade applicable, but in respect of reference to the HighCourt it is not. A reference to some of the sections ofthe Act, will further show that there are some otherprovisions which make relevant provisions of the Codeapplicable to proceedings under the Act. Section 131 ofthe Act provides that the Income Tax Officer. AppellateAssistantCommissioner,InspectingAssistantCommissioner and Commissioner shall have the samepowers as are vested in a court under the Code, whentrying a suit in respect of the matters relating todiscovery and inspection, enforcing the attendance ofany person, including any officer of a banking companyand examining him on oath, compelling the productionof hooks of account and other documents, and issuingcommissions. Turning to Section 255 of the Act onefinds Sub-section (6) thereof providing that theAppellate Tribunal shall, for the purpose of dischargingits functions, have all the powers which are vested inthe Income Tax authorities referred to in Section 131. I have already referred to the provisions contained inSection262oftheAct. It will thus appear that there are no provisions in theIncome Tax Act which provide for abatement of a caseof reference on account of the death of an Assessee andthe non-substitution of his heirs within any particularperiod of time. It also appears that wherever thelegislature considered it necessary to apply the relevantprovisions of the Code to proceedings under the Act ithas done so. Upon well established principle ofconstruction of statutes, it must be said that if thewhole of the Code of Civil Procedure applied toproceedings under the Income tax Act, the legislaturecould not have the necessity of making certainprovisions alone thereof applicable to proceedings underthe Act. The conclusion is obvious that only thoseprovisions of the Code which have been specificallymade applicable to proceedings under the Act to apply. Three is another way of looking at this and that is thatabatement of a suit or appeal after a certain time is inthe nature of penalty which is the result of non-compliance with the statutory provision of law. It resultsin the extinguishment of the right of a Plaintiff or anAppellant to prosecute the suit or appeal any further. Inthe absence of any such penal provision in the IncomeTax Act, it would be unfair to read such a provisioncontained in the Code as incorporated in the Income TaxAct and thereby saddle a litigant with an obligationwhich a litigant, prima facie, does not suffer from. Ifthat were to be done, it would affect a special law likethe Income Tax Act and the special jurisdictionconferred thereby on the High Court. In my viewtherefore. Order XXII of the Code has no applicationevenforthisreason." 17. Therefore, it was well settled that Order 22 of Codeof Civil Procedure has no application to a referenceunder Section 256 of the Act to the High Court. It isafter deleting the aforesaid provision. Section 260A ofthe Act is introduced as aforesaid. In the reasons whileintroducing this provision this is what the parliamenthas to say "as the procedure for filing appeals beforethe High Court is prescribed in the Code of CivilProcedure. it is proposed to provide the necessaryreference that the relevant provisions of the Code ofCivil Procedure shall apply mutatis mutandis to Section260A of the Income Tax Act and Section 27A of theWealth Tax Act. In the circular issued by the departmentshowing the substance of the Act which is stated asunder: "As the procedure for filing appeals before the HighCourt is prescribed in the Code of Civil Procedure, theAct has amended Section 260A of the Income Tax Act toprovide that the relevant provisions of the Code of Civilprocedure shall apply, mutatis mutandis, to Section260AoftheIncomeTaxAct."18. It is in this background we have to see what Section260Awhichreadsasunder:"AppealstoHighCourt'260A. 1) An appeal shall lie to the High Court from every orderpassed in appeal by the Appellate Tribunal (before thedate of establishment of the National Tax Tribunal), ifthe High Court is satisfied that the case involves asubstantialquestionoflaw. 2) The Chief Commissioner or the Commissioner or anAssessee aggrieved by any order passed by theAppellate Tribunal may file an appeal to the High Courtand such appeal wider this Sub-section shall be-) (a) filed within one hundred and twenty days from thedate on which the order appealed against is (receivedby the Assessee or the Chief Commissioner orCommissioner): (b)(*****) (e) in the form of a memorandum of appeal preciselystating therein the substantial question of law involved. 3) Where the High Court is satisfied that a substantialquestion of law is involved in any case, it shall formulatethatquestion.4) The appeal shall be heard only on the question soformulated. and the Respondents shall, at the hearing ofthe appeal, be allowed to argue that the case does notinvolvesuchquestion: Provided that nothing in this Sub-section Shall bedeemed to lake away or abridge the power of the courtto hear, for reasons to be recorded, the appeal on anyother substantial question of law not formulated by it, ifit is satisfied that the case involves such question. 5) The High Court shall decide the question of law soformulated and deliver such judgment thereoncontaining the grounds on which such decision isfounded and may award such cost as it deems fit. 6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal:or (b) has been wrongly determined by the AppellateTribunal, by reason of a decision on such question of lawasisreferredtoinSub-section(1). Provided that nothing in this Sub-section Shall bedeemed to lake away or abridge the power of the courtto hear, for reasons to be recorded, the appeal on anyother substantial question of law not formulated by it, ifit is satisfied that the case involves such question. 5) The High Court shall decide the question of law soformulated and deliver such judgment thereoncontaining the grounds on which such decision isfounded and may award such cost as it deems fit. 6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal:or (b) has been wrongly determined by the AppellateTribunal, by reason of a decision on such question of lawasisreferredtoinSub-section(1). 7) Save as otherwise provided in this Act, the provisionsof the Code of Civil Procedure. 1908 (5 of 1098).relating to appeals to the High Court shall, as far asmay be apply in the case of appeals under this section.) 19. Section 260A(1) confers a right on the parties toprefer an appeal to the court from every order passed inan appeal before the Tribunal. However, such an appealcould be admitted by the High Court only if it is satisfiedthat it involves a substantial question of law. The HighCourt shall formulate the question at the time ofadmitting the appeal. Sub-section (4) makes it veryclear that the appeal shall be heard only on the questionso formulated and the Respondent is conferred a rightto argue that the case does not involve a substantialquestion of law. The proviso also confers power on theHigh Court to formulate any other substantial questionof law which is not formulated at the time of admission.Sub-sections (5) and (6) confers wide powers on theHigh Court in deciding the appeal. It also provides for atime limit within which an appeal has to be filed andwhat memorandum of appeal should contain. Sub-section (2A) which was inserted by Finance Act 2009which provides a provision for condoning the delay inpreferring the appeal, if it is filed beyond time. The Act,itselfprovidesunderSub-section (7) that save or otherwise provided under this Act, theprovisions of the Code of Civil Procedure. 1908 relatingto appeals to the High Court shall, as far as may beapply in the case of appeals under the said Section.Therefore, a separate procedure for hearing" of appealsunder Section 260A of the Act is not provided. Theprovisions contained in the Code of Civil Procedurerelating to appeal is made applicable to the appealsunder Section 260A of the Act. In Code of CivilProcedure Sections 96, 100, 104 Order 41and Order 43deals with appeals against the judgment and decreesand orders. None of these provisions do expressly statethat in an appeal if any of the parties to the appeal diethe appeal abates. When these provisions are madeapplicable to an appeal under Section 260A when those provisions do not expressly state that an appeal abateson account of the death of the Assessee. we cannotread into the aforesaid sections or Section 260A theconcept of abatement on account of the death of a partyto the appeal. In interpreting these provisions the courthas to bear in mind what the legislature actuallyintended. The intention of the legislature has to begathered from the language used in the Statute. Itmeans attention has to be paid to what has been saidand also to what, has not been said. If legislature hasnot chosen to expressly state an appeal abates onaccount of the death of the Assessee, in interpreting theaforesaid provisions we cannot read into the provisionthat the appeal abates. When the legislature did notchoose to use express words, it means they did notintend such a consequence on account of the death of a party to the appeal. Theconcept of abatement is alien to the fiscal law theconcept of abatement as understood in Civil andCriminal law cannot be smuggled into taxation law. on account of the death of a party to the appeal. Theconcept of abatement is alien to the fiscal law theconcept of abatement as understood in Civil andCriminal law cannot be smuggled into taxation law. 20. It is contended that Sub-section (7) of Section 260Aof the Act expressly says the provisions of the Code ofCivil Procedure, 1908, relating to appeals to the HighCourt shall, as far as may be applicable to the appealsunder this Section. It takes within it Order 22 in generaland Rule 11 of Code of Civil Procedure in particular. Reliance was placed on the express words contained inorder XXII Rule 11 which reads as under.-11.ApplicationofordertoappealsIn the application of this order to appeals, so far as mayhe the word "Plaintiff" shall he held to include anAppellant, the word "Defendant" a Respondent, and theword"suit"intheappeal As the wordings of the said provision makes it clear thatOrder 22is made applicable to the appeals also, Order22 exclusively deals with death, marriage andinsolvency of the parties. Order 22 Rule 1 expresslydeclares that no abatement by party's death if right tosue survives. It also deals with the procedure when thePlaintiff or the Defendant dies, to bring the legalrepresentatives on record, what are the questions to begone into by the Court at the time of considering thesaid application if the application is objected to and theeffect of abatement or dismissal. As all those provisionsrefer to only suits, Order II makes it clear the saidOrderalsoappliestotheappeals. 21. When Sub-section (7) of Section 260A restricts the As the wordings of the said provision makes it clear thatOrder 22is made applicable to the appeals also, Order22 exclusively deals with death, marriage andinsolvency of the parties. Order 22 Rule 1 expresslydeclares that no abatement by party's death if right tosue survives. It also deals with the procedure when thePlaintiff or the Defendant dies, to bring the legalrepresentatives on record, what are the questions to begone into by the Court at the time of considering thesaid application if the application is objected to and theeffect of abatement or dismissal. As all those provisionsrefer to only suits, Order II makes it clear the saidOrderalsoappliestotheappeals. 21. When Sub-section (7) of Section 260A restricts the application of the Code of Civil Procedure, only to thematters covered under the Code relating to appeals,when there is no specific reference to Order 22, merelybecause Order 22 Rule 11 of Code of Civil Proceduremakes the order applicable to the appeals, the saidorder cannot be made applicable of the proceedingsunder the Act. If the intention of the legislature was tomake Order 22 Code of Civil Procedure also applicableto the appeals under Section 260A of the Act, theywould have expressly stated so. If they have notexpressly referred to the said provision, it is not withoutany reason. As set out above, Section 159 of the Actmakes it expressly clear that the liability to pay taxunder the Act do not crease on account of the death ofthe person/Assessee. Rules explicitly makes it clear asecond appeal preferred against the order of the FirstAppellate Authority do not abate on account of thedeath of Assessee. Similarly, prior to the introduction ofSection 260A of the Act, a reference before the HighCourt did not abate on account of the death of theparties on reference. Therefore, the legislature had nointention to depart from this well established position oflaw. With this in mind they did not make order XXIICode of Civil Procedure applicable to appeal before HighCourt. Any other interpretation of this provision not onlyruns counter to the scheme of the Act, but also wouldbe opposed to the express statutory provisions. Thewords contained in Sub-clause (2) of Section 159 of theAct only means the provisions of the Act and not theprocedural provisions contained under the Code of CivilProcedure. Not only the Act deals with imposition of tax,it also provides the procedure for recovery of tax. Thatprocedure is totally different from the procedure ofbringing the legal representative on record in aproceedings initiated under the Act. When Section 159of the Act expressly states the death of the party is ofno consequence and the proceedings under the Actcould be proceeded against the legal representativesand the proceedings initiated against the deceased isdeemed to be the proceedings initiated against the legalrepresentatives from the inception which could becontinued from the stage of his death. this concept ofabatement totally runs counter to the scheme of theAct. As set out above, at every stage the legislature hastaken pains to exclude the concept of abatement.Therefore, in an appeal under Section 260A of the Act ifthe Assessee dies, the question of abatement of theappeal would not arise. No such abatement takes place.An application is to be filed to bring the legalrepresentatives on record as the principle of naturaljustice requires that they should be heard before anyorder is passed to the extent of the liability to pay tax in respect of the estate which they have inherited. In thatview of the matter, the objection taken by theRespondent that Order 22 of Code of Civil Procedureapplies to an appeal under 260A of the Act and if thereis a delay in filing the said application, abatement takesplace and therefore, the applications filed for settingaside abatement, for condoning the delay are requiredto be rejected as no sufficient cause are shown, iswithoutanysubstance. 22. The learned Counsel for the Respondent brought toour notice the judgment of the Division Bench of thisCourt in ITA No. 9/2000 in the case of the Income TaxOfficer v. T. Parthasarathy, where it was observed inparas 3 and 4 of the judgment as follows: 3. At the time of argument, it is brought to our noticethat the Assessee has died on 11.3.2006. No legalrepresentative have been brought on record as ontoday. 4. In the circumstance, the appeal stands abated as ontoday.Orderedaccordingly.Nocosts. 23. As is clear from the aforesaid wordings, the DivisionBench did not go into the question whether the appealabates or not. It proceeded on the basis that as thelegal representatives are not brought on record, theappeal stands abated. In the circumstance, it cannot besaid the said question is decided in the aforesaid appealand it would bind us. No law is laid down. Nothing isdecidedintheaforesaidappeal.24. On merits also, we have gone through theaverments and the statement of objections filed and weare satisfied that sufficient cause is made out forcondoningthedelay. 25. Accordingly, the applications filed by the Revenuefor condoning the delay, for setting aside abatementand to bring the legal representatives of the deceased-Assessee on record are allowed. The Revenue to amendthe cause title accordingly.” 6.In view of the above, the appeals will not abate and we have heard the counsel for the parties on merits. 7.Taking into considerations the observations made by CIT(A) which has been confirmed by the Tribunal since books of accounts was not rejected therefore, provisions of Section 69(B) waswrongly invoked. 8.We see no reason to interfere with the order of both theauthorities. The issues are answered in favour of assessee andagainst the department. 9.The appeals stand dismissed. (VIJAY KUMAR VYAS)J. (K.S.JHAVERI)J. B.M.G.Gourav/60-62