Commissioner Of Income Tax, Karnal v. Sh. Moti Ram (Deceased) Through His Legal Heir Sh. Dharam Pal

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. I.T.A. No. 335 of 2008DATE OF DECISION : 17.07.2008 Commissioner of Income Tax, Karnal .... APPELLANT Versus Sh. Moti Ram (Deceased) through his legal heir Sh. Dharam Pal ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present:Mr. Sanjeev Kaushik, Advocate,for the appellant-revenue.for the appellant-revenue. * * * SATISH KUMAR MITTAL , J. The Revenue has filed this appeal under Section 260 A of theIncome Tax Act, 1961 (hereinafter referred to as `the Act') against the orderdated 20.8.2007 passed by the Income Tax Appellate Tribunal, ChandigarhBench (hereinafter referred to as `the ITAT') in ITA No. 439/Chandi/ 2007for the Assessment Year 2003-04, by raising the following substantialquestions of law :- “Whether, on the facts and in the circumstances of the case, theITAT was right in law in upholding the the order of the CIT (A)holding the return of income and assessment framed as null andvoid?”ITAT was right in law in upholding the the order of the CIT (A)holding the return of income and assessment framed as null andvoid?” The brief facts of the case are that the return of income in thiscase was filed on 28.11.2003 after the death of the assessee, as the assesseehad expired on 14.9.2003. The return of income was signed by the assesseehimself during his life time, but the same was filed after his death. In thereturn of income, only agriculture income of Rs. 2,20,000/- was shown bythe assessee. The Assessing Officer made the assessment under Section 143(3) of the Act, in spite of the contention raised that the return filed by theassessee was null and void. The legal heirs of the assessee challenged thevalidity of the assessment order before the CIT (A), who after consideringthe submissions of the legal heirs of the assessee held that the return filed inthe name of the assessee after his death was null and void ab initio. Hence,any action taken on such a return was also null and void. Feeling aggrievedagainst the order of the CIT (A), the revenue filed appeal before the ITAT,who vide its order dated 20.8.2007 upheld the order of the CIT (A) anddismissed the appeal of the revenue on the ground that the deceasedassessee did not authorise any person, including his legal heirs, to sign thereturn of income, when he was alive. It was further observed that the returnfiled in this case was null and void, because the assessee was not alive at thetime of filing of return and the legal heirs have not signed the return onbehalf of the assessee. Against the said order, the revenue has filed the instant appeal,raising the aforesaid substantial question of law. After hearing learned counsel for the revenue and going through the impugned order, we do not find any merit in the instant appeal.In the present case, it is not disputed that the assessee expired on 14.9.2003,whereas the return of income having the signatures of the deceased assesseewas filed on 28.11.2003. When the return was filed, the assessee was notalive, though the return filed was bearing his signatures. Sections 139 and140 of the Act, which are relevant for the adjudication of the issue raised inthis appeal are re-produced below : 139. (1) Every person, - (a) x x x (b) being a person other than a company or a firm, if his totalincome or the total income of any other person in respect ofwhich he is assessable under this Act during the previous yearexceeded the maximum amount which is not chargeable toincome tax, shall, on or before the due date, furnish a return ofhis income or the income of such other person during theprevious year, in the prescribed form and verified in theprescribed manner and setting forth such other particulars asmay be prescribed : Provided x x x (1A) x x x 140. The return under section 139 shall be signed andverified- (a)in the case of an individual, - (i) by the individual himself; 139. (1) Every person, - (a) x x x (b) being a person other than a company or a firm, if his totalincome or the total income of any other person in respect ofwhich he is assessable under this Act during the previous yearexceeded the maximum amount which is not chargeable toincome tax, shall, on or before the due date, furnish a return ofhis income or the income of such other person during theprevious year, in the prescribed form and verified in theprescribed manner and setting forth such other particulars asmay be prescribed : Provided x x x (1A) x x x 140. The return under section 139 shall be signed andverified- (a)in the case of an individual, - (i) by the individual himself; (ii) where he is absent from India, by the individualhimself or by some person duly authorised by him in this behalf; (iii) where he is mentally incapacitated from attending tohis affairs, by his guardian or any other person competentto act on his behalf; and (iv) where, for any other reason, it is not possible for theindividual to sign the return, by any person dulyauthorised by him in this behalf: Provided that in a case referred to in sub-clause (ii) orsub-clause (iv), the person signing the return holds a validpower of attorney from the individual to do so, which shall beattached to the return. (b)x x x (c)x x x (d)x x x (e)x x x (f)in the case of any other person, by that person or by some person competent to act on his behalf.” From a perusal of the aforesaid provisions, it is clear that incase of an individual, the return of income is to be filed, signed and verifiedby the individual himself or by some person duly authorised by him in this behalf, if he himself is absent from India. If the assessee is mentallyincapacitated from attending to his affairs, the return is to be signed by hisguardian or any other person competent to act on his behalf. In the instant case, the return was filed on 28.11.2003. On thatday, the assessee had already expired. The return filed with the signatures ofthe assessee after his death cannot be taken as a valid return filed by theassessee himself. Undisputedly, the return was neither signed nor verified bythe legal heirs of the deceased. Further, this Court inThe Commissioner ofIncome Tax, KarnalversusSh. Rakesh Kumar, Mukesh Kumar, Panipat,ITA No. 256 of 2008, decided on 1.7.2008, has held that the issuance ofauthorisation for conducting search and search warrant in the name of adead person and subsequently, passing the order under Section 158-BC (c) /144 of the Act on such void authorisation of conducting search is null andvoid. Therefore, the return filed in this case was null and void, because theassessee was not alive at the time of filing of the return. In our opinion, novalid assessment could have been made on the basis of an invalid and voidreturn. Hence, we do not find any illegality in the order, passed by the ITAT,affirming the order of the CIT (A) and no substantial question of law arisesfor consideration of this Court. Dismissed. ( SATISH KUMAR MITTAL ) JUDGE July 17, 2008 ndj ( AUGUSTINE GEORGE MASIH ) JUDGE